Announcements

Final Study Guide posted on course web page.Response Question due in Section tomorrow.

Part I: ECHR, Rights Claims and the National Legal System

I. National Incorporation of the European Convention: the process

Three National institutional requirements

A. Article 1: obligation to respect HRs B. Article 13: right to effective remedy C. Flexibility in domestic

implementation

European Convention of 1950Article 2 Right to LifeArticle 3 Prohibition of TortureArticle 4 Prohibition of slaveryArticle 5 Right to liberty and securityArticle 6 Right to Fair TrialArticle 7 No punishment without lawArticle 8 Right to Respect for private lifeArticle 9 Freedom of thought, religionArticle 10 Freedom of expressionArticle 11 Freedom of assemblyArticle 12 Right to marryArticle 13 Right to an effective remedyArticle 14 Prohibition of discrimination

II. How Convention Rights are Protected in National Legal System A. Empowering the National Judiciary EXAMPLES:

FRA: Conseil d’Etat gave priority to an international treaty over a municipal lawITA: Court of Cassation recognizes direct applicability of ECHR case lawAUS/SWISS: use ECHR rulings as basis to expand national rights SPA: the ECHR assisted the development of constitutional law when it was a new democracy

(II. How Convention Rights Protected, cont.)

B. Creating Constitutional Rights in Domestic Law 1. Convention given Statutory Status:

UK: Human Rights Act 1998 provides a statutory bill of rights

GER: Const. Court upgraded Convention statutory status, stating German Constitution must be read in light of the Convention

(II. How Convention Rights Protected, B. Creating Constitutional Rights, cont.)2. Convention given Constitutional

Status -Convention Rights are SupremeEXAMPLES: NET, AUS, BEL, CYP, CZ

III. Rights Litigation and the ECHR

A. Protection of Right to a Fair Trial (Art 6, European Convention)

- 60% of cases between 1960-98 invoked Art6EXAMPLES: 1. Length of Proceedings: Trippel v. Germany (2003) Cwyl v. Poland (2003) 2. Improper Action of National Courts

Popescu Nast v. Romania (2003)

(III. Rights Litigation, cont.)B. Expansion of Convention Rights

Goodwin v. UK (2002)Dispute: Goodwin claimed UK laws violated the Convention rights as applied to transexuals:-Art 14 (prohibition of discrimination)-Art 8 (right to private life)-Art 13 (right to effective remedy)-Art 12 (right to marry and to found a family) ECHR Decision: UK law is in violation of Art 8 (private life) and Art 12 (to marry)

IV. Rights Litigation involving Convention Rights in the National Legal System

A. Balancing Conflicting Rights:EXAMPLE: Right to Privacy v. Right to

Freedom of Expression 1. Naomi Campbell v. the Mirror

(2002) Dispute: Campbell’s right to privacy

vs. the newspaper’s right to freedom of expression

(IV. Right Litigation involving Convention, A. Balancing, cont.)

2. Z.Jones/M.Douglas v. Hello! (2003)

Dispute: Jones/Douglas brought suit against Hello! on 13 counts, including violation of their right to privacy.

3. Cases led to the development of new UK national privacy law

(IV. Right Litigation involving Convention,

B. Problems with Varying Nat’l Implementation EXAMPLE

Schröder v. Mail on Sunday/Maerkische Oderzietung (2003)

Dispute: The Chancellor’s right to privacy vs. the newspapers’ right to freedom of expression

Decision: bans newspaper article in Germany only, not the same paper sold in the UK

Part II: Supranational Courts Compared

I. Function and Legal System A. ECJ -Ensure the uniform interpretation of

EU law -EU Law: diverse policy areas & wide

body of law (legislation, treaties, etc.) -Regional jurisdiction (Europe only) -Institution of the European Union

(I. Function and Legal System, cont.)

B. ECHR -Ensure that member states comply

with the European Convention -Single body of law, single policy area

(European Convention, human rights) -Regional Jurisdiction (Europe only) -1999, Court and Comm. were

combined -Institution of the Council of Europe

III. How Does a Case come before the Court?

A. How Individuals Bring a Claim before the ECJ: Two Options

ECJ ECJ

National Court

Individual

Individual

Direct ActionPreliminary Ruling Procedure

B. How Individual Claims come before the ECHR: Pre and Post 1998 Procedures

Commission

Committee of Ministers

ECHR

Individual

ECHR

Individual

Optional Stage: Art 46

Pre-1998 Process Post 1998 Process

Optional Stage: Art 25

IV. Rulings: How Binding? Dissenting? Powerful?

A. ECJ:- They are binding, monetary

penalties for non-compliance- No dissenting opinions: protects

national judges so they can uphold EU interest

- Powerful rulings that have expanded EU rights and national law.

(IV. Rulings, cont.)

B. ECHR-Final judgments of the ECHR are binding

on member govts.-Dissenting opinions: important as human

rights are controversial/complex issues.-Pre-1998 not as powerful with limited

ECHR jurisdiction, but enhanced after 1998.

-No enforceable penalties, but member govt. comply.

V. National Sovereignty (NS)

A. ECJ 1. Preservation of NS: ECJ empowers

national courts, subsidiarity 2. Limits on NS: Van Gend en Loos

and Costa Decisions, opened the EU legal system to individuals to bring claims against their own governments.

(V. National Sovereignty, cont.)

B. ECHR 1. Preservation of NS: Pre-1998

system, optional clauses Art 25 and Art 46, margin of appreciation

2. Limits on NS: Post 1998 system, compulsory jurisdiction and individual complaints, eliminated Commission and strengthened Court.