Academy of European Law Twenty-seventh Session Human Rights Law 20 June – 1 July 2016 Reading Materials The European Court of Human Rights as a Source of Human Rights Law Ineta Ziemele Professor, Riga Graduate School of Law; Judge of the Constitutional Court of Latvia; former judge and Section President at the European Court of Human Rights TABLE OF CONTENTS Page 1 Course Outline 1 2 Reading List 3 3 Harris, O’Boyle & Warbrick, Law of the European Convention on 5 Human Rights, 3rd ed., Oxford University Press, 2014 4 Luzius Wildhaber, Arnaldur Hjartarson, Stephen Donnelly, “No 24 Consensus on Consensus? The Practice of the European Court of Human Rights”, Human Rights Law Journal, Vol. 33, No. 7-12 (2013). 5 Steven Greer, The European Convention on Human Rights. 40 Achievements, Problems and Prospects, Cambridge University Press, 2006, pp. 316 – 321. 6 Ineta Ziemele, “International Courts and Ultra Vires Acts”, in 46 Caflisch et al (eds.), Liber Amicorum Luzius Wildhaber. Human Rights – Strasbourg Views.Droits de l’Homme – Regards de Strasbourg. N.P.Engel, Publisher, 2007, pp. 537 – 556 7 James Crawford, Chance, Order, Change: The Course of 66 International Law, Hague Academy of International Law, 2016, Chapter IX. The European Court of Human Rights as a Source of Human Rights Law Professor Ineta Ziemele Ph.D. (Cantab.) Judge of the Constitutional Court of Latvia, former judge and Section President at the European Court of Human Rights Outline of the lectures: 1. Introduction – setting the stage - Article 38. 1 (d) of the Statute of the International Court of Justice: “judicial decisions as subsidiary means for the determination of rules of law” - Article 32 of the ECHR: “1. The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47. 2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.” - Article 46 of the ECHR: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”. - lex interpretata - erga omnes character of the Convention - the Convention and its Protocols – primary source of European human rights law 2. Methods of interpretation of the ECHR and its Protocols - International treaty v quasi Constitution debate - Articles 31 – 33 of the 1969 Vienna Convention on the Law of Treaties - “ordinary meaning of the terms in their context and in the light of its object and purpose” - Reservations and declarations - “subsequent agreement” - “subsequent practice” - “relevant rules of international law applicable in the relations between the parties” - Special character as a human rights treaty - European public order 3. European consensus - General principles? - Customary law? - Something else? 1 4. Margin of appreciation - Protocol 15: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention,” (13 signatures, 28 ratifications on 6.6.2016.) 5. Ultra vires decisions - Mamatkulov v. Turkey (no. 46827/99 46951/99) [GC] judgment of 4 February 2005, Dissenting opinion of Judges Caflisch, Turmen and Kovler: “Our basic conclusion is, therefore, that the matter examined here is one of legislation rather than of judicial action. As neither the constitutive instrument of this Court nor general international law allows for holding that interim measures must be complied with by States, the Court cannot decide the contrary and, thereby, impose a new obligation on States Parties. To conclude that this Court is empowered, de lege lata, to issue binding provisional measures is ultra vires. Such a power may appear desirable; but it is up to the Contracting Parties to supply it.” - Hutten-Czapska v. Poland (no. 35014/97 ) [GC] judgment of 28 April 2008, Concurrign opinion of Judge Ziemele: “The real question is not one of power, but whether the exercise of power in a given case is consonant with due administration of justice.” 6. Fragmentation 7. Conclusions - is the consent of States Parties to the Convention the only source of European Human Rights law? - is the European Court of Human Rights through its judicial decisions a source of European Human Rights law? 6.6.2016. 2 The European Court of Human Rights as a Source of Human Rights Law Professor Ineta Ziemele Ph.D. (Cantab.) Judge of the Constitutional Court of Latvia, former judge and Section President at the European Court of Human Rights Reading material: - On interpretation of the ECHR by the ECtHR Harris, O’Boyle & Warbrick, Law of the European Convention on Human Rights, 3rd ed., Oxford University Press, 2014 (relevant chapters attached as pdf) Demir and Baykara v Turkey (no. 34503/97) [GC] judgment of 12 November 2008, paras. 65 – 86. To be read but not in reading list Jones and Others v United Kingdom (nos. 34356/06 40528/06) judgment of 14 Janaury 2014. To be read but not in reading list - On margin of appreciation and European consensus Luzius Wildhaber, Arnaldur Hjartarson, Stephen Donnelly, “No Consensus on Consensus? The Practice of the European Court of Human Rights”, Human Rights Law Journal, Vol. 33, No. 7-12 (2013). A, B and C. v. Ireland (no. 25579/05) [GC] judgment of 16 December 2010. To be read but not in reading list Animal Defenders International v the United Kingdom (no. 48876/08) [GC] judgment of 22 April 2013. To be read but not in reading list - On effects of the Court’s judgments and decisions Steven Greer, The European Convention on Human Rights. Achievements, Problems and Prospects, Cambridge University Press, 2006, pp. 316 – 321 (attached in pdf). Ineta Ziemele, “International Courts and Ultra Vires Acts”, in Caflisch et al (eds.), Liber Amicorum Luzius Wildhaber. Human Rights – Strasbourg Views.Droits de l’Homme – Regards de Strasbourg. N.P.Engel, Publisher, 2007, pp. 537 – 556 (attached in pdf). 3 - On fragmentation James Crawford, Chance, Order, Change: The Course of International Law, Hague Academy of International Law, 2016, Chapter IX. Hirsi Jamaa and Others v. Italy (no. 27765/09) [GC] judgment of 23 February 2012. To be read but not in reading list 1.4.2016. 4 xii TABLE OF CONTENTS 3 THE EUROPEAN COURT OF HUMAN RIGHTS: ORGANIZATION, PRACTICE, AND PROCEDURE 103 1 The Organization of the Court , 103 2 Procedure before the Court (I): From the Initial Application to Judgment 113 3 Procedure before the Court (II): Additional Procedūrai Matters 136 4 Article 41: Just Satisfaction 155 5 Article 46 162 6 Protocol 14 165 7 Reform of the Court 166 Ķ TheFuture: 176 4 THE EXECUTION OF THE COURT’S JUDGMENTS .. 180 1 The Role of the Committee ofMinisters 181 2 Procedure 181 3 The Court and Execution of its Judgments 191 4 The Parliamentary Assembly and Execution of Judgments ... 194 5 Protocol 14 196 6 Conclusion 198 PART III THE RIGHTS GUARANTEED 5 A R T IC L E 2: THE RIGHT TO LIFE 203 1 The Obligation to Protect the Right to Life by Law 203 2 Preventive Action 207 3 Health Care and Other Social Services 212 4 The Procedūrai Obligation to Investigate 214 5 Application of the Obligation to Protect Life to Non-fatal Cases 218 6 Protection of the Unborn Child 219 7 The Prohibition of the Taking of Life by the Use of Force 221 8 Conclusion 233 6 A R T IC L E 3: FREEDOM FROM TORTURE OR INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 235 1 Introduction 235 2 Torture 238 3 Inhuman Treatment 241 4 Inhuman Punishment 259 5 Degrading Treatment 261 6 Degrading Punishment 271 7 The Obligation to Protect Individuāls from Proscribed Ill-Treatment 2 74 8 Conclusion 5 217 THE INTERPRETATION OF THE CONVENTION is monitoredbythe Committee ofMinisters ofthe Council ofEurope, which is composed of govemmentrepresentatives of ali of the member states.. 4* THE INTERPRETATION OF THE CONVENTION L THE GENERAL APPROACH As a treaty> the Convention must be interpreted according to the internātiem! law rules on the interpretation of treaties.38 Ihese are to be found in the Vienna Convention on the Law ofTreaties 1969.39 The basie rule is that a treaty shall be interpreted in good faith in accord- ance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.40 A good example ofthe use of this rule is the case of Luedicke, Belkacem and Код v Germany,41 There the Court adopted the ordinary meaning1 ofthe words (gratuitementy and ‘free5 in the two authentic language texts42 of Article 6(3) (e), which it found not contradicted by the context of the sub-paragraph5 and confirmed by the object and purpose of Article 6’. The terms in the Convention have their ordinary meaning. Accordingly, words such as ‘degrading5 (Article 3) have been understood in their dictionary sense.43 II. EMPHASIS UPON THE OBJECT AND PURPOSE OF THE CONVENTION In accordance with the Vienna Convention, considerable emphasis has been placed on the interpretation of the Convention through a teleological approach, ie one that seeks to realize its object and purpose’. This has been identified in general terms as ‘the protection of individ- ual human rights’44 and the maintenance and promotion of cthe ideāls and values of a demo- cratic society 45 As to the latter, it has been recognized that cdemocracy supposes ‘pluralism, 38 See eg,GoldervUK А 18 (1978); 1 EHRR 524 para 29 PC, and John tonvIrelandA 112 (1986); 9 EHRR 203 para 51 PC.