EHR – Chapter 1: Context, background and institutions

1. Context
- There used to be no catalogue of human rights and fundamental freedoms
- Within the United Nations, such a catalogue was established in the Universal Declaration of Human Rights
- The rights protected in the European Convention draw their inspiration from the Universal Declaration, but do not simply
duplicate the rights referred to there
- Two concerns that led the Council of Europe to prepare the European Convention:
o Provide means through which it was believed that the most serious human rights violations which had occurred during
the Second World War could be avoided in the future
o Protect States from Communist subversion
- It is intergovernmental (act all together), not supranational

2. The structure and aims of the Council of Europe

- The International Committee of Movements for European Unity, and its Congress at the Hague in May 1948, were the
foundation of the Council of Europe established on 5 May 1949 and the drafting by its Contracting Parties of the Convention
for the Protection of Human Rights and Fundamental Freedoms (1950) = European Convention on Human Rights
- Aim of the Council of Europe:
o Art 1(a) Statute: To achieve a greater unity between its Members for the purpose of safeguarding and realising the ideals
and principles which are their common heritage and facilitating their economic and social progress
o Art 1(b) Stature: This aim is to be pursued through the organs of the Council by discussion of questions of common
concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters
and in the maintenance and further realisation of human rights and fundamental freedoms
- Council of Europe:
o 47 countries
o 5 countries with observer status
o New members of the Council of Europe are required to accede to the European Convention
- Agenda:
o To protect human rights, pluralist democracy and the rule of law
o To promote awareness and encourage the development of Europe’s cultural identity and diversity
o To find common solutions to the challenges facing European society
o To consolidate democratic stability in Europe by backing political, legislative, and constitutional reform
- Three organs (debatable, some say it is 2, some say it is more)
o Committee of Ministers – Chapter IV Statute
 Decision-making body
 Composed of foreign ministers of the Contracting Parties
o Parliamentary Assembly – Chapter V Statute
 Deliberative body
 318 representatives
 Can send recommendations to the Committee of Ministers
o Congress of Local and Regional Authorities of Europe – Statutory Resolution 94(3)
 Consultative functions
 Composed of representatives of local and regional authorities
o Secretariat – Chapter VI Statute
 Secretary-General:
 Senior official of the Council of Europe
Has 2 mains powers:
 Depository for the ratifications of the Convention (as well as any derogations or mandatory declarations): States go
to submit the request to the SG to ratify and for derogations.
 Monitoring function under Art. 52 ECHR (can launch inquiry into State’s implementation of the ECHR and issue
reports).  On his own initiative
 o Commissioner for Human Rights:
 Independent institution
 Fosters the effective observance of HR
 Assists MS in the implementation of CoE HR standards
 Promote education in and awareness of HR, identify possible shortcomings in the law and practice concerning HR
and 3rd party intervention before the ECtHR (Art. 36(3) ECHR): can always intervene as a 3 rd party in a case ( but it’s
not binding)
 Cannot take up individual complaints

- Art 3 Statute: requires that every Contracting Party ‘must accept the principles of the rule of law and of the enjoyment by all
persons within its jurisdiction of human rights and fundamental freedoms’
- Art 8 Statute: a Contracting Party which has seriously violated Art 3 Statute must be suspended from its rights of
representation and requested by the Committee of Ministers to withdraw from the Council of Europe under Art 7 and, if it
does not comply, may be expelled

- Within the Council of Europe, social and economic rights are mainly the concern of the European Social Charter, which
provides for progressive implementation and for supervision by the examination of periodic reports on progress achieved
o The European Committee of Social Rights is the body responsible for monitoring compliance in the States party to the
Charter under a collective complaint procedure which came into effect in 1998

3. The content of the European Convention

- Why the difference: New waves of rights are continuously arising and it depends on the obligation of the State. 1 st
Generation focuses on negative obligation (something that the State shouldn’t do) rather than positive obligations (more
costly). There is a minimum standard that depends on the capability of States.

- Human rights generations:

o First generation right: civil and political rights  protected under ECHR, negative obligation
o Second generation right: social and cultural rights (European Social Charter  separate instrument within Council of
Europe)  right to education protected too
o Third generation right: rights that concern people collectively and include the right to development, to peace and to a
clean environment
o Fourth generation right: no consistency – tend to relate to the impact of scientific and technological developments, i.e.
communication and information rights, rights relating to development in biotechnology
- Not every Contracting Party has ratified every provision of every protocol to the Convention

4. The system of protection

Old system of protection
- Two organs to ensure the observance of the engagements undertaken by the High Contracting Parties: the European
Commission of Human Rights and the European Court of Human Rights = Strasbourg organs  deal with applications made
by States and by individuals alleging violations of the Convention
- (former) Art 24: any Contracting Party could refer to the Commission any alleged breach of the provisions of the Convention
by another Contracting Party
- (former) art 25: Commission can receive applications from any person, non-governmental organisations, or group of
individuals claiming to be the victim of a violation by one of the Contracting Parties of the rights set forth in the Convention
o Application registered
o Commission considers whether the application meets the admissibility requirements + makes a decision
o Application admissible  investigation into the merits of the complaint and consideration whether there has been a
violation of the Convention
o Report from the Commission expressing an opinion as to whether or not there was a violation
o Report communicated to applicant and to the respondent State + delivered to the Committee of Ministers
o Attempt to reach a friendly settlement ‘on the basis of respect of human rights’
o Committee of Ministers/Court of Human Rights makes final decision on cases
 o If the case was referred to the Court and heard by it  a full judicial procedure where the Court sat in a plenary session
or in Chambers of nine
o Decisions were made by a majority of the judges.
- Jurisdiction of the Court not fully recognized: it was technically voluntary
- Standing was also an issue:
o The applicant had no standing to refer the application to the Court, unless the respondent State was a party to Protocol
9
o If party to Protocol 9: applicant refers the matter to Court by submitting it to a panel of 3 judges who could decide
unanimously that the application should not be considered by the Court
New system of protection
- Protocol 11 amended the Convention
o New permanent Court replaces the Committee of Ministers/Court of Human Rights
 Court handles admissibility and merits phases of application + seeks friendly settlement of matters
- Protocol 14: single-judge formation to examine admissibility + three-judge committee dealing with repetitive cases
o Chamber and Grand Chamber still responsible for adjudicating on the merits of admissible applications
o Final judgment is transmitted to Committed of Ministers: sole role is to supervise the execution of judgments
o Contracting parties undertake to abide by the final judgement of the Court in any case to which they are parties

5. Relationship with other international courts and tribunals

- Art 35(2) ECHR: admissibility requirement  the application must not have been already submitted to another procedure of
international investigation and settlement (only applies to individual applications)
o A State can still lodge multiple applications under different schemes
- Risk with referral to more than one system: divergent approaches to the same issue

ECHR/EU
- The Convention is not formally binding on the Union  provisions can and must be given effect as general principles of EU
law
State responsibility:
- The EU is not a party to the ECHR BUT art 59(2) ECHR allows for the EU to accede to the ECHR
o Art 6(3) TEU requires the EU to accede to the ECHR  A draft agreement for the accession of the EU to the ECHR was
rejected by the Court of Justice EU, which had to give its approval, in December 2014 in Opinion 2/13
o The expectation of EU accession to the Convention is now cast in considerable doubt and is certainly not a development
possible in the immediate future
o European Union’s Charter of Fundamental Rights of the European Union: rights are said to be based on the rights
guaranteed by the European Convention, but in some cases there are significant differences of wording + scope is
considerably wider
o ECtHR can assess whether the Member States comply with their obligations under the ECHR, when they are applying EU
law  through so-called ‘State responsibility,’ the ECtHR can indirectly assess compliance of EU law with the ECHR.
 State responsibility: when a State has an international obligation that cannot be breached which also concerns the
areas where the State in entitled to react and the permissible means of that reaction
 Absolving the Contracting States completely from their Convention responsibility where they are simply complying
with their obligations as members of an international organisation to which they have transferred a part of their
sovereignty is incompatible with the purpose and the object of the Convention

Presumption of equivalent protection test:

- Bosphorus case:
o Bosphorus presumption of equivalent protection: Strasbourg court presumes that EU complies with ECHR but they will
not be checking it unless there is a sign of ‘manifest deficiency’
o In the case, the ECtHR considered the relationship between the protection of human rights in the EU and such
protection under the ECHR
o The EU MS remain individually responsible for compliance with Convention rights where competence has passed to the
EU  the ECtHR would only interfere where the protection afforded by the Union was not equivalent to that provided
under the Convention
 = Strasbourg court presumes that EU complies with ECHR but they will not be checking it unless there is a sign of
‘manifest deficiency’
o Relationship between obligations arising under EU law and Convention law
Rebuttable presumption that action taken in compliance with Community law meets the requirements

- Michaud v France case:

o Same presumption of equivalent protection
o Court:
 Absolving the Contracting States completely from their Convention responsibility where they are simply complying
with their obligations as members of an international organisation to which they have transferred a part of their
sovereignty is incompatible with the purpose and the object of the Convention
 Action taken in compliance with such obligations is justified where the relevant organisation protects fundamental
rights in a manner which can be considered at least equivalent, meaning comparable but not necessarily identical, to
that for which the Convention provides
 Exception: if the States has exercised State discretion in implementing the obligations, and the presumption can also
be rebutted if the protection of Convention rights was manifestly deficient
- Two conditions:
o The absence of any margin of manoeuvre (discretion) on the part of the domestic authorities implementing an EU law
obligation
o The deployment of the full potential of the supervisory mechanism provided for under EU law
- Presumption can be rebutted if the protection of the rights laid down in ECHR was ‘manifestly deficient’ in the present case

Relationship between the ECHR and the EU legal systems from the perspective of the Strasbourg Court
- Avotin v Latvia case:
 Considering the two conditions:
- No state discretion as it concerned a regulation ( principle of mutual recognition). Applicant challenged right to Fair trial as
he was not properly summoned.
- In the second criteria the Strasbourg states that applicant should have asked for preliminary ruling. But presumption can be
rebutted in case of manifest deficiency but none was found.

o The Contracting States remain bound with their obligations under the Convention even when applying EU law
o Those obligations must be assessed in the light of the Bosphorus presumption of equivalent protection
o Main question is whether the protection of the rights guaranteed by the Convention is manifestly deficient in the
present case such as this presumption is rebutted

What the judgement tells us about the relationship between ECHR and EU legal systems:
- The Court’s reasoning calls for a revision of the legal features of the EU’s system of judicial cooperation in civil matters when
it emphasizes that ‘ the aim of effectiveness pursued by some of the methods used results in the review of the observance
of fundamental rights being tightly regulated/limited.’’
- Strasbourg noted that ‘ if a serious and substantiated complaint is raised before ( the domestic courts) to the effect that the
protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by EU law, they
cannot refrain from examining that complaint on the sole ground that they are applying EU law.
- Apparent difference between the approaches of the ECtHR and ECJ when it comes to the protection of fundamental rights
within the area of judicial cooperation in civil matters. While Luxembourg construes this principle as requiring each MS to
regard all the other MS as compliant with fundamental rights save in exceptional circumstances, Strasbourg implies that the
MS should have an active role in protecting fundamental rights, even when EU law obligates the domestic courts to
automatically recognize or enforce a decision originating in another MS.
- Strasbourg court implied that a Contracting Party can in principle be held responsible for the recognition or the
enforcement of a judgement adopted in violation of the Convention, if there are indication that there obviously is an
infringement of fundamental rights and a State completely refrains from reviewing judgements emanating from another EU
MS.
- Mutual recognition cannot be used if it breaches fundamental human rights
6. Collective complaint procedure + European Social Charter
- Within the framework of the European Social Charter, a particular complaint procedure exists: the collective complaints
procedure. This procedure has been introduced through an additional Protocol in 1995
o Only 15 Member States of the Council of Europe that are parties to the European Social Charter, have ratified it
- The European Social Charter is a Council of Europe treaty that guarantees fundamental social and economic rights as a
counterpart to the ECHR, which refers to civil and political rights. It guarantees everyday human rights such as employment,
housing, health, education, social protection and welfare.
- The main characteristics are:
 Protocol 15: Introduced the collective complaints procedure
 Aim: increase effectiveness, speed and impact of the implementation of the Charter
 Art 1 and Art 2 of Additional Protocol: Only certain NGOs are entitled to lodge collective complaints concerning the
Charter- individuals are not entitled to do so.
 Complaints may only raise questions concerning non-compliance of State’s law or practice with one of the provisions of
the Charter. Individual situations may not be submitted
 Complaints may be lodged without domestic remedies having been exhausted and without the claimant organization
necessarily being a victim of the relevant violation.
 ‘Committee of Independent Experts’ known as the European Committee of Social Rights that oversees, not the
Strasbourg Court. They issue their findings. No mention of legally binding.
 Claimant doesn’t have to be a victim, it isn’t the same standing as ECtHR
 Complaints under the Charter don’t go to the ECHR
 Not legally binding as such but ‘must be respected’

- Who: Art. 1 and 2 of Additional Protocol : NGOs

- How: Article 4, 5- Complaint lodged in writing, relating to provision of Charter accepted by Contracting Party indicating how
they didn’t ensure satisfactory application of the provision and must be addressed to the Secretary General.

What are the competences of the European Committee of Social Rights?

The Committee monitors implementation of the Charter.  It does this by managing a State reporting system and a collective
complaints procedure.
 The Committee evaluates the reports (Part IV of Social Charter) and publishes conclusions about whether each State is in
conformity with the Charter. Moreover, if a State does not act in response to the Committee’s decision as part of the
collective complaints procedure, and if, as a result, the State is not in compliance with the Charter, the Committee will also
issue a recommendation to the State.  Body responsible for monitoring compliance in the States party to the Charter
under a collective complaints procedure which came into effect in 1998
 The Committee is also empowered to hear collective – not individual – complaints against States that have accepted this
procedure. The Committee issues decisions regarding these collective complaints.
 The decisions of the European Committee of Social Rights must be respected by the States concerned; however, they are
not enforceable in the domestic legal system.

Why was the collective complaints procedure adopted and how come only 15 MS have ratified this Protocol?
- Increase effectiveness, speed and impact of the implementation of the Charter
- Enables social partners and NGOs to directly apply to the European Committee of Social Rights for rulings on possible non-
implementation of the Charter in the countries concerned, namely those State which have accepted its provisions and the
complaints procedure
- Positive obligations
- If not ratified, cannot be complained about