Lecture 3 Flashcards
(26 cards)
Where can we find when the charter is applicable?
Article 51 (1) CFR
When does the Charter apply to the EU Member States?
When a member state is implementing EU law ➞ acting within the scope of EU law
Imagine the following situation: the Netherlands has drafted a new law that deals with the influx of asylum seekers from Greece, as the Dutch government does not want young male asylum seekers to enter the country. EU law, specifically the EU Dublin Regulation, deals with this topic and lays out certain rules for EU Member States who want to influence the entry of asylum seekers from other Member States.
Does the charter apply in this situation?
First question is if there is any relevant EU law? Yes, acting within the scope of, and therefore the charter applies
Imagine the following situation: the Netherlands has drafted a new law that deals with the influx of asylum seekers from Greece, as the Dutch government does not want young male asylum seekers to enter the country. EU law, specifically the EU Dublin Regulation, deals with this topic and lays out certain rules for EU Member States who want to influence the entry of asylum seekers from other Member States.
Would your answer to the previous question be different if no such EU law existed, but the Netherlands were to restrict movement of all people from Greece to the Netherlands to prevent young male asylum seekers from coming to protect public security?
Restricting the freedom of movement of persons, so derogating EU law, and therefore acting within the scope. Yes, the charter would still apply.
The council of Europe - what is statue ‘49 about?
➞ to achieve peace by protecting human rights
➞ also protecting democracy
Institutions of the council of Europe
1. Committee of Ministers (CoM) ➞ most powerful
- executive but also the parliament
- art 46(2) ECHR
- it has a specific function under the European convention (supervising the execution for the courts judgements)
2. Parliamentary Assembly (PACE) ➞ not a parliament as we know
- art 22 ECHR
- more a form of dialogue (recommendations, etc). Not so much power
- parliamentarians of national parliamentarians (306 of them now, they come to strasbourg 4x a year)
- they get to elect the judges to the European conventions of human rights (and are pretty strict in this)
What is the ECHR about? - introduction to it
= the European Convention on Human Rights
Adopted in 1950
➞ now it is about protecting the rights of individuals and not so much about totalitarianism anymore
Underlying principles of the ECHR
a. Subsidiarity
- that states are first responsible for protecting the primary rights; only if they fail will the EU court step in
b. Effectiveness
- the rights need to be protected and interpreted that is practical ➞ can also have practical effect
➞ you need to find a balance between these two principles
The ECTHR stands for…?
The European Court of Human Rights
Composition of the ECtHR
- 46 judges (art 20 ECHR) ➞ same number as how many states
- nomination: 3 candidates by a state (art 22)
- election: PACE (art 22)
ECtHR different formations
i. Plenary court = 46 judges (art 25)
ii. Grand chamber = 17 judges
iii. Chamber = 7 judges (art 29)
iv. Committees = 3 judges (art 28)
v. Single judges = art 27 ➞ they can adopt a decision (they won’t look at the content of the complaint, only declare application and they don’t really reason this)
A case will never be assigned to the grand chamber, but will have to progess there
Ways for a case to end up at the grand chamber
Committee or a chamber can adopt a decision or a judgement, and in a judgement they will declare whether there is a violation or not
Two ways
1. When its assigned to a chamber of 7 judges, and it is complex because it turns into another question (something they might havent dealt with before
2. Chamber doesn’t agree with it. They can then ask a panel whether it can be sent to the grand chamber where they will look at it again ➞ really up to the panel if it will go to the grand chamber yes or no
Admissibility criteria for ECHR
➞ this is the first question you have to ask yourself
3 types:
1. Procedural
2. Jurisdictional
3. Relating to the content of the complaint
Procedural (admissibility)
Exhaustion of domestic remedies rule - art 35 (1)
- giving states the chance first (subsidiarity)
- 4 months
- not anonymous
- application already examined by the ECtHR - art 35(2)(b)
- abuse of the right of petition - art 35(3)(a)
Jurisdictional (admissibility)
- ratione matreriae (subject matter) - art 32 ➞ by reason of / because of the nature (need to complain about a convention right)
- ratione loci (place) - art 1 ➞ event that took place within the territory of the state
- ratione temporis (time) ➞ less and less important
- ratione personae (person) ➞ you look at both parties. First the applicant (victim of violation), then cpmaplint against the state… CLR v Romania - victim status
Relating to the content of the complaint (admissibility)
- not manifestly ill-founded (art 35(3)(a)) ➞ you shouldn’t submit something that is BS, you need evidence and reason
- significant disadvantage (art 35(3)(b)) ➞ not everything is a human rights problem
Flexibility around the admissibility criteria
The court won’t apply these in a strict manner if that would mean that human rights would be shoved aside. For example when a country doesn’t have a working system in place
Execution of a judgement ECtHR - introduction
So… if there is a violation, what does that mean and what must happen?
Article 46(1) convention ➞ the courts judgements are binding
Effect of the execution of a judgement of the ECtHR
No erga omnes effective ➞ only binds the state in play. This is different than the CJEU judgement which bind all member states
Obligations - execution of a judgement of the ECtHR
Different ones:
- End the violation
- Reparation (or compensation when reparation isn’t doable (for example when you have tortured someone)
- Prevent similar future violations
➞ *CLR v. Romania, par 158
Measures - execution of a judgement of the ECtHR
- Just satisfaction (= compensation) - art 41
- other individual measures
- general measures
Role of the committee of ministers - execution of a judgement of the ECtHR
Supervises execution - art 46(2) ➞ up to them to take measures, they can impose peer pressure
Role of the court - execution of a judgement of the ECtHR
Orders just satisfaction - art 41
- normally the judgements are declaratory ➞ that they declare that there were/are violation and that’s it. It’s not up to the court to tell the states what to do etc.
- exceptions to this ➞ M.S.S. case: that the court does think that they should give some indications
Challenges ECHR: states acting under EU law
Holding EU states responsible (effectiveness) v allowing EU states to cooperate in the EU
Solution: the Bosphorus presumption of compliance (when states are abiding EU law, and have no choice, it will be presumed that the convention hasn’t been violated)
EU MS has no discretion + the EU provides equivalent fundamental rights protection =
Presumption of compliance
SO
1. MS no discretion
2. Equivalent protection by EU
=
3. Presumption of compliance
➞ unless: manifestly deficient protection EU
