Lecture 4 Flashcards
(17 cards)
Before you can bring a case before the ECtHR, you must __________ in your own country, as required by
Article __________ ECHR
a) exhaust all domestic remedies
b) article 35 ECHR
Structure of fundamental rights. Questions you must ask
1.does the case fall within the scope of a fundamental right?
2. Is there an interference? (A violation)
3. Can the interference be justified?
Cha’are Shalom vs France case (2000) + what kind of argument from the court?
Jewish organisation wanted to procedure a certain type of meat (ritual slaughter), and there was a license system in France, but they didn’t get the license for this (freedom of religion)
➞ The French government said:
There hasn’t been a violation, because back then the French could import this type of ‘glatt’ meat from Belgium ➞ so you could still eat it, but just not do it yourself
The court had a majority and a discenting judgement - argument of:
a. Majority = non-interference ➞ since they could still obtain the meat (the focus is on the eating, and not on the performance as much)
b. discenting = justification for the interference
Question of admissibility - scope - (court with the matter of fundamental rights) + why important
➞ if it doesn’t fall within the scope of the right, then it will be declared inadmissible on ground of ratione materei
- burden of proof is different depending on the stage that you look at
- depending on the stage, different methods and principles apply ➞ so Wes have to make a distinction between the three phases (scope, interference, justification)
Scope of a fundamental right
When are we dealing with a human rights issue and when aren’t we? = the question we have to answer when looking at the scope of
- it depends on the context
➔ art 8 ECHR: everyone has a right to private life, even when you are at work (Barbulescu v Romania)
➔ art 47(3) CFR: (DEB case) if the right to legal aid would extend to legal entities. It is not excluded and up to the domestic courts
If something is a fundamental right is often up to a matter of interpretation
Principles when looking at principles/methods of interpretation (of fundamdental rights)
Principles say something something about the higher aim, but not a straightforward answer to the question
・ Effectiveness: wanting to protect human rights in a way that works
・ Evolutive and dynamic interpretation: something that is very important to the ECHR, it says something about the scope and that the scope of rights evolves over time and that’s why you should keep these changes in mind ➞ have to protect more and more
・ Autonomous interpretation: especially for a court that combines states➞ that certain terms in the convention have an autonomous meaning (so not the same when it would be defined by national law)
・ Subsidiarity principle: exhaustion of domestic remedies ➞ giving states the possibility to do something first
・ positive obligations
・ proportionality
・ legality
・ margin of appreciation
・ non-discrimination
Methods of interpretation (fundamental rights)
Classic methods:
- Textual interpretation: looking at the text of a provision, but difficult because there are many languages in the EU
- Contextual interpretation: you look at the system, and you read it in the context of another provision
Modern, European methods:
- (Meta)-teleoglogical interpretation: that you either look at the aim of a certain provision or the aim of the convention
- Consensus interpretation: among other human right institutions, they look at international law and EU law more broadly & looking at national laws and what the member states think and how they deal with certain human rights question
Type of interpretation with the Lambart v France case:
In Haas … the Court considered that it was appropriate, in the context of examining a possible violation of Article 8, to refer to Article 2 of the Convention. The Court considers that the converse also applies: in a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses.
= contextual interpretation because they are looking at the context and not just one provision
Type of interpretation with the Al-Saadoon and Mufdhi v the UK case:
Sixty years ago, when the Convention was drafted, the death penalty was not
considered to violate international standards. An exception was therefore
included to the right to life, so that Article 2 § 1 provides that “[n]o one shall be
deprived of his life intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is provided by law”.
However, as recorded in the explanatory report to Protocol No. 13, there has
subsequently been an evolution towards the complete de facto and de jure
abolition of the death penalty within the member States of the [CoE}
= dynamic interpretation, ‘there has been an evolution’ (new consensus)
Which principle or method of interpretation does the CJEU use in this part of the judgment DEB?
As the Advocate General pointed out…, examination of the law of the Member States brings to light the absence of a truly common principle which is shared by all those States as regards the award of legal aid to legal persons. However, …, the Advocate General also pointed out that, in the practice of the Member States which allow legal aid to be granted to legal persons, there is a relatively widespread distinction between profit-making and non-profit-making legal persons.
= consensus
Which principle or method of interpretation does the CJEU use in this part of the judgment DEB?
As the … observed …, the word ‘person’ used in the first two paragraphs of Article 47 … may cover individuals, but, from a purely linguistic point of view, it does not exclude legal persons.
It should be noted in that connection that, although the explanations relating to the Charter do not provide any clarification in this regard, the use of the word ‘Person’, in the German language version of Article 47, as opposed to the word ‘Mensch’, which is used in numerous other provisions …may be an indication that legal persons are not excluded from the scope of that article
= contextual
State obligations: according to the ECHR
Article 1 ECHR ➞ addressed to the high contracting parties (46 states)
2 consequences:
1. States are responsible, not individuals
2. States must ‘secure’ the rights
John is married to Joan. John is a very aggressive and violent man. Especially when drunk, he often hits Joan and insults her, causing her severe physical pain – she has had to be hospitalised a number of times. Joan wants that something is done and she wonders if she can make a claim under Article 3 (prohibiting inhuman and degrading treatment) or Article 8 ECHR (protecting privacy).
Do you think the Convention applies in the case of Joan?
Yes, the state may be responsible for securing convention rights, even in horizontal relationship s
Positive vs negative obligations for the state
Negative obligations = the state must not interfere with fundamental rights
Positive obligations = states must secure and take steps in a practical and effective manner
Horizontal effect: ECHR
There is no horizontal effect, it is up to the states to secure this, but an individual isn’t bound to the convention as is
Indirect horizontal effect (ECHR) by:
- Holding the domestic courts responsible for interpretation/application of national norms in conformity with the ECHR
- Accepting positive obligations to adopt legislation, conduct certain policy, take measures, etc
Horizontal effect: CFR
➞ Article 51(1) CFR
The court says that it depends if it has effect between individuals (looking at the text it wouldn’t have effect)
When can it have direct horizontal effect? - two conditions:
1. That the provision is mandatory and unconditional (very clear that you have a right)
2. That you don’t need any implement legislation in able to rely on this law
