Week 6

Question 1

First generation fundamental rights

Answer 1

• Civil and political
• ‘Negative rights’ - meaning that the state should abstain from interfering in these rights and freedoms
• E.g., freedom of religion, freedom of speech, freedom of life

Question 2

Second generation fundamental rights

Answer 2

*Social, economic, and cultural rights
*‘Positive rights’ - meaning that the state should actively ensure/take action to ensure these rights and freedoms are upholder and guaranteed
*E.g., right to food, housing, education, etc.

Question 3

Third generation fundamental rights

Answer 3

• Group and solidarity rights
  *E.g., right to self determination

Question 4

How does the Court analyze if there is a violation of the ECtHR?

Answer 4

See Week 6 LR notes

Question 5

Five enforcement mechanisms of the ECHR

Answer 5

• Monitoring mechanism
• Interstate complaints mechanism
  *Individual complaints mechanism
  *Methods of interpretation mechanism
• Binding effect of ECtHR judgements

Question 6

Monitoring mechanism

Answer 6

• Member state must report on how it practices and furthers its obligations under the treaty to a committee each year and this committee will make recommendations in a report that is up to the state to enforce

Question 7

Interstate complaints mechanism

Answer 7

*A state can complain of another states’ violation of the ECHR

Question 8

Individual complaints mechanism

Answer 8

• Art 34 ECHR allows individuals to take their case (thus, the state) to Court

Question 9

Methods of interpretation mechanism

Answer 9

*Member State courts can engage in different interpretation methods to ensure that the treaty and its judgements are complied with
* Court also engages in different forms of interpretation to ensure that the treaty follows the modern-day and is widely applicable

Question 10

Binding effects of ECtHR judgements

Answer 10

• ECtHR judgements are final and binding and must be applied in the state it concerns

Question 11

Methods of interpretation used by the ECtHR

Answer 11

*Autonomous meaning
*Living instrument
* Evolutive/dynamic approach
*Common-ground method
* Teleological approach
* Effective approach

Question 12

Autonomous meaning method of interpretation

Answer 12

*ECtHR can develop its own concept of what something means
* E.g., what is property, what is criminal, etc.

Question 13

Living instrument method of interpretation

Answer 13

• The Convention should not be static but rather interpreted in light of present-day conditions

Question 14

Evolutive/dynamic approach method of interpretation

Answer 14

• As our ideas of things change, the obligations of a state under the ECHR changes too
• As societies ideas of things change, the meaning of certain articles and things in the ECHR can change as well
• E.g., what is marriage (historically only between man and woman, now between same genders)

Question 15

• Common-ground method of interpretation

Answer 15

• Is there a common ground (consensus) among the member states regarding the application of a certain provision of a treaty?
• If there is little common ground, then there is a wide margin of appreciation of how a treaty provision/article can be assessed - meaning, the treaty can be assessed in a broad manner as the states have not applied them all similarly
• If there is great common ground, then there is a narrow margin of appreciation of how a treaty provision/article can be assessed - meaning the treaty can be assessed in a very narrow, specific manner as the states have applied it similarly

Question 16

Teleological approach method of interpretation

Answer 16

• What is the purpose of this treaty provision/article?
• What is the purpose of the principles underlying the ECHR?
• What is the purpose of the law?
• Looks at values such as human dignity, personal autonomy, democracy, pluralism
• ‘Interpretation of the rights and freedoms guaranteed [in the Convention] has to be consistent with the general spirit of the Convention’

Question 17

Effective approach method of interpretation

Answer 17

• The convention intended to guarantee rights that are practical and effective, not theoretical and illusory
  *E.g., positive obligation of states to provide legal assistance to fulfill the right of access to courts
  *Thus, to effectively enjoy right A, we must have right B

Question 18

Rantsev v Cyprus and Russia

Answer 18

• Example of effective approach method of interpretation
• Invoked Art 4 ECHR No one shall be held in slavery or servitude; No one shall be required to perform forced or compulsory labor
• Court noted the issues around human trafficking in applying to the case under Art 4
  *Said that human trafficking threatens the human dignity of its victims and goes against democratic society and values
  *Positive obligation for the state to take steps against human trafficking under Art 4
  The Court used a comparative analysis in this case by looking at other laws and international documents regarding human trafficking to say that the law must be effective

Question 19

Lord Hoffman’s criticism of ECHR methods of interpretation

Answer 19

*Discusses the legitimacy of case law and says don’t introduce new concepts
*Argues, where does judicial interpretation end and judicial treaty-making begin since this is basically the court making new protocols and treaties

Question 20

What components does the freedom of expression entail?

Answer 20

*Has both political and personal component
*Must have freedom of expression for a proper political process
* Must have freedom of expression as a fundamental right to receive and disseminate ideas for personal development

Question 21

Scope when analyzing the freedom of expression

Answer 21

• What is the content of the expression?
  *What is the form of the expression?
  *Who can invoke the freedom of expression?
  *Includes right to access information public bodies have about you and may include the right not to express a specific opinion
  *Content of Art 10: protects expressions that shock, offend, or disturb (Handyside v UK); commercial advertisements; clothing; certain behaviours
  *Form: audio broadcasts, paintings, symbols, leaflets, demonstrations, films, and electronic information

Question 22

Role and scope of the freedom of expression

Answer 22

*ECHR: Lingens v Austria (1986)
- Freedom of expression constitutes one of the essential foundations of a democracy, of the basic conditions for its progress and for each individual’s self-fulfillment
* Art 10 provides positive obligations for the state to ensure this freedom/right is upheld
- The state has a positive obligation to put in place appropriate legislative and administrative framework to guarantee effective pluralism
- Positive obligation in two ways (in newspaper case):
- Ensure that the applicant had a reasonable opportunity to exercise his right of reply by submitting a response to the newspaper for publication
- Ensuring that the applicant had an opportunity before the domestic courts to contest the newspapers refusal
- The state needs to establish an effective mechanism for the protection of authors and journalists in order to create a favourable environment
- Even if they run counter to those defended by official authorities or even if they are irritating or shocking to the latter

Question 23

Sunday Times v UK (1989)

Answer 23

• Thalidomide causing deformed kids and the parents of these kids in the UK started suing the manufacturers
• The Sunday times published several articles about the distillers of these meds and the distiller’s started proceedings against the Sunday Times and asked the court to prohibit an upcoming article about them
• The Court agreed with the distillers and said publishing the article would constitute a contempt of court
• Said that the publication would interfere with the requirements of justice
  *The Sunday Times went before the ECtHR and said that their freedom of expression rights under Art 10 had been violated

Question 24

How did the ECtHR apply Art 10 to the Sunday Times case?

Answer 24

See and understand notes.

Question 25

Der Standard case

Answer 25

* Nothing stands in the way of the newspaper to report and publish on whatever they want about the politicians and parties * Concerns the forum comments by people who are not their journalists * Court on the scope and interference: * The case is about the duties of Der Standards as a host provider * The Court concludes that the comments posted on the forum by readers of the news portal, while constituting opinions and therefore information, were clearly addressed to the public rather than to a journalist. This is sufficient for the court to conclude that the comments’ authors could not be considered a source to a journalist. The Court therefore agrees with the Government that the applicant company could not rely on editorial confidentiality * Hence, no editorial confidentiality as the comments were not made by a journalist * However, the freedom of expression includes the ability to commentate anonymously * Conclusion of the Court: this issue falls within the scope of Art 10 and there has been an interference with the right of the newspaper company * Limitation has been prescribed by law and serves a legitimate aim * But was the interference necessary in a democratic society? * If you have to balance Art 8 against Art 10, you must pay attention to questions such as whether contribution is made to public interest, how well someone is known, consequences of the publication, gravity of the penalty, etc. * Importance of anonymity online * Promotes free flow of opinions is worth protecting, especially in regard to political speech * Conclusion: there had been a violation of Art 10

Question 26

Does the ECtHR provide for horizontal effect of fundamental rights/are rights in the ECHR enforceable against other individuals (horizontally)?

Answer 26

* No: Art 33 and Art 34 - access to court is only allowed on proceedings against the state * Court decisions only directed at the states * Case law has purely vertical effect nature and history

Question 27

Connection between principle of effectiveness and positive obligations of the state (Ask for notes from WG)

Answer 27

* Principle of effectiveness (effective judicial protection), obliges member state courts to ensure that national remedies and procedural rules do not render claims based on EU law impossible in practice or excessively difficult to enforce * Positive obligation: responsibility and obligation of the state to actively ensure that rights and freedoms are upheld, protected, and provided for. Thus, the state has a positive obligation to ensure that the principle of effectiveness is upheld - i.e., that rights and freedoms under the ECHR are actually enforceable in the state.

Question 28

How can a citizen invoke fundamental rights that are required by the treaty against another citizen (horizontal effect)?

Answer 28

* Through the principle of effectiveness, the state must make laws in their own country to ensure that fundamental rights of the EU have effect, are effectively laid down, can be effectively enforced, and are effectively followed in the member state * E.g., freedom of press issue - Party A tries to monopolize all publishing markets in the country - Party B wants to publish his book but cannot do so as A has monopolized publishing - Party B goes to ECtHR and says that the state does not make sure that freedom of expression isn’t guaranteed as they’ve allowed A to monopolize all publishing markets - In this case, it would be Party B vs Member State - alleging violation of Art 10 - ECtHR would then tell the state that they have a positive obligation to ensure the effectiveness of the freedom of speech right under Art 10 ECHR - The state will then make a law saying that no one person can monopolize the market - This domestic law can now be used in a horizontal effect by A against B

Question 29

Dual nature thesis

Answer 29

* Robert Alexy * Law has both a real and an ideal dimension * Real dimension of law: authoritative issuance and social efficacy * Ideal dimension of law: claim to moral correctness * In applying to breaches of the law and what is to protect the law, we can summarize the dual nature thesis as follows: The higher the breach of right A, the more justified the aim of right B must be; the lower the breach of right A, the less justified the aim of right B must be

Question 30

Apply the dual nature thesis to the right of privacy (A) vs the freedom of expression (B)

Answer 30

* The higher the breach of one's right to privacy, the more justified the claim of one’s right to freedom of expression must be * E.g., if a politician claims their right to privacy (A) was breached by an exposing article in an newspaper, the Court must weigh how justified the claim of the newspapers’ right to freedom of expression (B) is in this case * The Court can come to the conclusion that the breach of the politician’s right to privacy was really high, and so the newspapers claim to freedom of expression must be highly justified * If the Court comes to the conclusion that the breach of the politician’s right to privacy was not high at all/really low, then the newspapers claim to the freedom of expression does not have to be highly justified, and a minimum justification will suffice