Human Rights

Session 1: Introduction to Human Rights

CLASS PRESENTATION:
What are human rights?
• They are “rights”
- Whats does the ideas of a “right” entail?
- How to assess which interests are “rights”?
• They are “human” (essential, basic)
- How to know which rights are “human”?
READINGS:
pg 1-22 Human Rights. Andrew Clapham
Looking at rights
• Di erent people currently see human rights in di erent way
- For some, it is a heartfelt morally justi ed way to rectify injustice, and to others it is no
more than a slogan to be treated with suspicion.
- Yet, the application of human rights law is almost always contested, with both parties to a
dispute demanding that human rights law be applied in their favour.
- HR law is special as it often suggests that the other law is inadequate or unjust
• The language of human rights is deployed to criticize, defend, and reform all sorts of
behavior
• Concept of “human rights culture”:
- To some: it means ensuring that everyone is treated with respect for their inherent dignity
and human worth
- To others: it means that judges, the police, and immigration o cials are required to protect
the interests of terrorists, criminals, and other undesirable elements at the expense of the
security of the population
• Can create tension in society (ex. British backlash on Human Rights Act)
• However, human rights come into play to stop governments and other actors from
pursuing expedient policies at the expense of the well-being of certain individuals
and the proper functioning of a democratic society under the rule of law
- Ex. British backlash on Human Rights Act:
• Many people voted to scrap the Human Rights Act in the UK to end the interest of
killers, rapists and paedophiles who come ABOVE those of victims
- Many criminal have been freed to re-o end and others have used the barmy laws to
gain perks and pay-outs from the government.
- Due to this the whole notion of human rights is becoming discredited
• However it is argued that much of this backlash is based on false information since:
- 1) the judges cannot strike down laws as incompatible with human rights
(Parliament retains sovereignty on which laws to pass or repeal)
- 2) the Government's review of the implementation of the Human Rights Act has
highlighted a series of 'myths and misperceptions' about the Act —> some stories
have been twisted to make the HRA seem like a crazy legislation
• Reminder that the human rights project is often about securing rights for those who
have been marginalized and made vulnerable
History of Human Rights:
• Human rights are considered a special, narrow category of right
- William Edmundson —> “Human rights recognize extraordinarily special, basic interests,
and this sets them apart from rights, even moral rights”
- New type of special rights adopted by the Universal Declaration of Human Rights by the
United Nations in 1948
• Human rights can be approached by early religious and philosophical writings —> human
beings are endowed, by reason of their humanity, with certain fundamental and inalienable
rights (Western philosophical and political principles)
- Another view: reference to similar principles concerning mass education, self-ful lment,
respect for others, and the quest to contribute to others' well-being in Confucian, Hindu,
or Buddhist traditions
ff
fi
ff
ff
ffi
fi
 - Religious texts include the need to protect human freedom and dignity (Ancient Babylon all
the way through to the natural law traditions of the West (Roman and Greek), ius gentium
(the law of the people))
- Common to each of these codes is the recognition of certain universally valid principles
and standards of behavior
• Could be seen as the precursors to human rights
The Rights of Man and their Discontents:
• Magna Carta of 1215 - early legal developments, however only a right to trial by jury granted
exclusively to property-owning men (not human rights, but rather political settlements)
- Human rights belong to all human beings, bot only a restricted group of privileged men
• “No one shall be arrested or imprisoned on the appeal of a woman for the death of any
person except her husband.” —> not human rights!!
• English Bill of Rights 1689- early stepping stone, however still only a political settlement as
it abused the rights of Protestants
• The work of philosophers also have in uence on the creation of rights
- John Locke’s Second Treatise of Government 1690:
• For Locke, 'every man has a right to punish the o ender and be executioner of the law
of nature’
• Locke saw civil government as the remedy for men acting as their own judges to enforce
the law of nature. He considered that this social contract, freely entered into, entitled the
government to enforce laws for as long as the government respected the trust placed in
it
- Jean-Jacques Rousseau’s Social Contract 1762:
• Developed the idea that an individual may have a private will (volonteparticuliere) and
that his private interest (interetparticulier) 'may dictate to him very di erently from the
common interest’
• 'whoever refuses to obey the general will shall be compelled to it by the whole body: this
in fact only forces him to be free’.
• Became a precursor for the French Revolution
- Thomas Paine’s “Common Sense” 1776 and “Rights of Man” 1791:
• Attacked the idea of rule by monarchy and called for republican government and equal
rights among citizens
• Worked for the subsequent abolition of slavery and defense for the French Revolution
(loved by the people) 'my country is the world, and my religion is to do good’
• His writings were not clear on what are the actual Rights of Man, however concludes
that a man deposits in the 'common stock of society' his natural right to act as his own
judge to enforce the law of nature
• Planted the seed of the human rights movement: a feeling of sympathy for the distress
of others, coupled with a sense of injustice when governments resort to measures which
invade the perceived natural rights of the individual.
- Immanuel Kant:
• Derived the logic of human rights from absolute moral principles:
- 1. each of us has to act according to the principles that we wish other rational beings
to act on
- 2. a person should never be treated as a means to an end, but rather as an end in
themselves
- Alan Gerwith
• 'agents and institutions are absolutely prohibited from degrading persons, treating them
as if they had no rights or dignity’ —> importance of individual autonomy
• Revolutionary declarations:
- 1776 American Declaration of Independence:
• ‘We hold these truths to be self-evident, that all men are created equal; that they are
endowed by their Creator with certain unalienable rights; that among these are life,
liberty and the pursuit of happiness’
- 1789 French Declaration of the Rights of Man and of the Citizen
• Men are born and remain free and equal in rights' and that 'The aim of every political
association is the preservation of the natural and inalienable rights of man; these rights
are liberty, property, security, and resistance to oppression.’
fl
ff
ff
 - Attempts to enshrine human rights as guiding principles in the constitutions, however only
referred to their citizens and only special groups could bene t from their protection
• AND excluded women!
- Attempts by Olympe de Gouda and Mary Wollstonecraft' to promote Women’s Rights
fell silent
• Critiques of the idea of human rights (19th century):
- Jeremy Bentham:
• Ridiculed natural rights as "nonsense upon stilts," advocating for legal rights de ned by
law.
- “real rights were legal rights, and it was the role of law makers, and not natural rights
advocates, to generate rights and determine their limits”
- He advocated that they 'can hardly be seen as giving justiciable rights in courts and
other institutions of enforcement’
- Also that human rights are alien to some cultures which may prefer to prioritize other
principles, such as respect for authority
- Karl Marx:
• Viewed rights as emphasizing individualism, detracting from collective emancipation and
equity.
• For Marx, these rights stressed the individual’s egoistic preoccupations
- Marx had a vision of a future community in which all needs would be satis ed, and in
which there would be no con icts of interests and, therefore, no role for rights or their
enforcement
• Modern rights theorists have sought to justify the existence and importance of rights by
reference to some overriding value, such as freedom, autonomy, or equality
- Some philosophers have suggested we abandon searching for a “theory” to justify human
rights as the emergence of such has nothing to do with moral knowledge, but about
hearing sad and sentimental stories (Richard Rorty)
• Feminists continue to highlight the failure of human rights to address structural inequality
between the sexes, issues of private violence against women, and the need for greater
inclusion of women in decision making —> however reorienting these rights could be
considered as a measure to reinforce stereotypes of women as victims
• At another level, as references to human rights feature increasingly in the discourse of
Western leaders, some fear that human rights are becoming instrumentalized, deployed as
excuses for intervention by powerful countries in the political, economic, and cultural life of
weaker countries from the South
Milan Kundera on Human Rights
• Story about the parked car ne (let o without a ne) and the unemployed protest at an
expensive wine store:
- the gesture of protest against a violation of human rights
• For Kundera, it is the contradiction between the French revolutionary proclamations of rights
and the existence of concentration camps in Russia that triggered the relatively recent
Western enthusiasm for human rights
• “The world has become man's right and everything in it has become a right: the desire for
love the right to love, the desire for rest the right to rest, the desire for friendship the right to
friendship, the desire to exceed the speed limit to right to exceed the speed limit, the desire
for happiness the right to happiness, the desire to publish a book the right to publish a book,
the desire to shout in the street in the middle of the night the right to shout in the street” —>
The proliferation of rights (e.g., the right to happiness, rest, etc.) risks trivializing core
human rights principles
• Kundera’s essay pointed out several things:
- 1) for some people today, human rights are obvious, self-evident, and simply logical
- 2) human rights are claims that automatically occur to one once one feels hard done by
- 3) a shared sense of grievance provides powerful succour for those claiming their 'rights'.
When those of us who feel aggrieved stand together in protest we nd strength through
solidarity
• Invoking our human rights has become a way to challenge laws that we feel are unjust
(even now laws are struck down for not conforming)
- 4) Human rights are important as instruments for change in the world.
fi
fl
ff
fi
fi
fi
fi
fi
 - 5) Human rights outrage can quickly be made to seem ridiculous, even hypocritical, as
certain Western governments selectively sanction and support human rights violations
- 6) The sense of solidarity amongst those who believe they are the victims of a human
rights violation can transcend class, gender, and other distinctions (Sense of
connectedness that keeps the world of human rights moving)
- 7) It is the story of struggles concerning injustice, inhumanity, and better government
Limits to rights reasoning:
• Prioritizing criminals rights over the rights of law abiding citizens (Britain)
• Mary Anne Glednon —> “Emphasis on rights is sometimes seen as undermining participatory
politics”
- Tensions arise when rights con ict or compete, making it di cult to prioritize or resolve
disputes.
- Emphasizing individual autonomy can overshadow collective responsibility and societal
cohesion.
• not everyone agrees that emphasizing individual rights as a way to organize society is
the best way to ensure a fair distribution of opportunities, wealth, and development
Session 2: Introduction to Human Rights II
READINGS:
International Human Rights Law and Practice
The European Human Rights System
• Overview:
- The European Convention on Human Rights (ECHR) and the European Court of Human
Rights (ECtHR) are the comerstones of the larger European human rights architecture
• Developed under the Council of Europe (CoE) as response to WW2 (1949)
• CoE: Aimed to promote unity, safeguard shared ideals, and enhance social and
economic progress. —> “maintenance and further realization of human rights and
fundamental freedoms”
- Membership hinges on the rule of law and respect for human rights.
- Today is primary body in HR (standard setting & monitoring)
- Expanded to 47 member states, encompassing Eastern Europe, the Caucasus, and
parts of Asia.
• ECHR:
- Adopted in 1950, e ective in 1953.
- Focused initially on civil and political rights.
- Inspired by the Universal Declaration of Human Rights (UDHR) —> Drafter by Sir
David Maxwell
- Due to its political focus, CoE adopted the European Social Charter in 1961, with the
European Committee of Social Rights (ECSR) becoming its main supervisory body.
The Charter's aim was to secure 'the enjoyment of social rights.. without
discrimination' (preamble), with a strong focus on the right to work.
- Article 2(1) right to life and Article 6 right to a fair trail
- Article 13 —> requires states to provide an e ective remedy in case of breach of any
of the Convention rights
- However there were several notable omissions recognized in the ECHR —> ex. In
1952, the right to property, education and to free elections
• And further protocols such as the prohibition of imprisonment for debt, the right of
appeal in criminal matters, compensation for wrongful conviction and the right not
to be punished twice
• Closed some of these gaps
• Freedom of movement, the prohibition of expulsion of nationals, the prohibition of
collective expulsion of aliens, and procedural safeguards relating to the expulsion
of aliens, were also recognized
• Further protocols addressed issues like the death penalty (abolished by Protocols 6
and 13) and discrimination (Protocol 12).
- However, Protocol rati cations have been uneven, leading to fragmented
protection.
• Key Institutions:
- European Commission of Human Rights (1954–1998): was competent to receive
individual complaints and to bring them before the court where states had recognized its
competence to do so;
ff
fi
fl
ff
ffi
 • However in 1998, the Commission was abolished and a court with 2 chambers was
created, allowing direct individual access to the ECtHR
- European Court of Human Rights (ECtHR): Operational from 1959. Could hear inter-
state cases and individual complaints brought before it by the Commission provided the
state concerned had accepted its jurisdiction;
- Committee of Ministers (CoM): Supervises enforcement of ECtHR judgments.
Responsible for the enforcement of judgments (two tiered system)
• The ECtHR: structure and functions
- 47 judges (one per member state), elected by the CoE Parliamentary Assembly.
- The Court sits in 'single-judge formations' (admissibility), committees of three judges and a
Chamber of seven judges deciding on admissibility and merits, as well as a Grand
Chamber (GC) of seventeen judges
• The GC ensures consistency and develops jurisprudence but is not strictly an appeal
body.
• The GC may decide to hear a case where a Chamber relinquishes jurisdiction or where a
party requests referral following a Chamber judgment
- By 2014, issued almost 18,000 judgments - Individual complaints dominate the docket.
(Not so many inter-state cases)
- Can only issue 3 advisory opinions —> but once Protocol 16 is in place parties can
request this from the court
• Jurisprudence of the ECtHR
- Development of the ECtHR's jurisprudence
• Initially, cases concerned with right to liberty and security, fair trail and to freedom of
expression (landmark cases)
- Only in early 1990s that the number of decision began to grow —> brought about a
signi cant shift that led the Court increasingly to consider both systemic and serious,
large-scale violations in di erent contexts
- Addressed a large amount of systemic issues, e.g., structural violations in Turkey,
Poland, and post-communist states. (Romania, Bulgaria, Poland, Russia and Ukraine)
• The ECtHR has made a major and in uential contribution to the development of
international human rights law
- Jurisprudence evolved to cover environmental concerns, sexual orientation, and
minority rights.
- The ECtHRs interpretation of the ECHR
• The ECtHR has developed a number of important doctrines in its interpretation of the
ECHR
- Developed a coherent understanding of the Convention
- Considers the ECHR as a "living instrument," interpreted in light of present-day
conditions.
• They have emphasis on proportionality: balancing public interest and individual rights.
- Margin of appreciation: Deference to national authorities, varying by context (e.g.,
public morals vs. political speech).
• Gives states some discretion in applying Convention guarantees, particularly when
determining what measures are necessary to restrict rights on grounds such as
public morals, which involve certain value judgements
• Based on the principle of subsidiarity!
• States have been given a fairly broad margin where there is a European consensus,
where they make value judgements and where con icting rights or interests need to
be balanced, for example restricting freedom of expression on grounds of public
moral and the protection of rights of others
- However, such as in areas where interference may encroach on the core of a
right such as political freedom of expression, the Court has been much less
generous trusting the assessment of contracting states
Article: De Barca on Samuel Moyn’s - Not Enough: Human Rights in an Unequal World.
• Moyn critiques the human rights movement for failing to address or challenge material
inequality.
- He argues that even in a world where everyone has dignity, freedom, and material
su ciency, the vast wealth gap between the richest and the rest is unacceptable and
immoral.
ffi
fi
ff
fl
fl
 - He claims the HR movement has prioritized civil and political liberties over addressing
economic disparities.
- Moyn views the human rights movement as a passive observer that has failed to confront
the rise of neoliberalism.
- He claims the movement has "humanized" rather than resisted economic inequality and
the ideology of market fundamentalism.
- Moyn critiques the movement for setting goals focused on ensuring a baseline of
su ciency rather than aspiring toward true equality.
• He dismisses the achievements of human rights activists as limited to "status equality"
(e.g., combating political repression and restraining violence), which he considers less
urgent than material redistribution.
• Historical Analysis:
- Moyn provides a rich intellectual history of welfare and social rights, tracing debates from
the French Revolution to modern movements such as the New International Economic
Order of the 1970s.
• He highlights the tension between su ciency and equality in these debates.
- Moyn brings attention to the systemic failure of international human rights to address
growing global economic disparities.
• He situates this critique within broader leftist scholarship on structural injustices in
international law.
• Key Critiques
- 1. Overemphasis on Material Inequality:
• Moyn identi es closing the wealth gap as the paramount goal but fails to justify why this
should overshadow all other human rights concerns.
• He criticizes the movement for its inability to impose a "ceiling" on inequality but o ers
little detail on how such a ceiling could be achieved.
- 2. Naïve Assumptions About Status Equality:
• Moyn suggests that issues of racial, gender, and LGBTQ+ equality are now widely
accepted, which de Búrca argues is demonstrably false:
- Racial Equality: Persistent issues like police violence and mass incarceration in the
U.S. highlight ongoing struggles.
- Gender Equality: Violence against women and systemic inequities remain prevalent
globally.
- LGBTQ+ Rights: Homophobic and transphobic discrimination persists, and
consensual same-sex relationships are still criminalized in many countries.
- 3. False Dichotomy Between Status Equality and Material Equality:
• de Búrca challenges Moyn’s implicit distinction between civil/political rights and socio-
economic rights, emphasizing their interconnectedness:
- For example, racial injustice in the U.S. is deeply tied to economic inequality.
• Gender equality movements address both socio-economic issues (e.g., poverty,
reproductive rights) and civil/political issues (e.g., harassment, participation).
- 4. Dismissive of Achievements:
• Moyn downplays the successes of the human rights movement, such as its role in
combating authoritarianism and advancing civil liberties, which remain critical in many
regions.
- 5. Ambiguity in Solutions:
• While critiquing human rights, Moyn points vaguely toward socialism as an alternative
but fails to provide a concrete vision:
- How would a socialist system achieve material equality while avoiding past failures?
- How would it integrate commitments to broader rights and freedoms?
• Re ections
• Moyn attributes the failures of socio-economic justice primarily to the human rights
movement, ignoring broader political and economic forces, including the dominance of
neoliberalism and the abdication of responsibility by democratic systems.
• While Moyn's critique draws attention, it risks undermining the human rights movement
without o ering constructive alternatives.
• de Búrca suggests that human rights and material redistribution are not mutually
exclusive.
ffi
fl
ff
fi
ffi
ff
 • The human rights movement must address its shortcomings without abandoning its
foundational ideals.
Case: TYRER v. THE UNITED KINGDOM 1978
• Facts
- Tyrer (15), alongside three other boys, assaulted a fellow student who had reported them
for bringing beer to school.
- He had no prior criminal history.
- He was sentenced to three strokes of the birch (a spanking) under isle of man law under
Section 56(1) of the Petty Sessions and Summary Jurisdiction Act 1927.
- Tyrer appealed his sentenced, but the appeal was dismissed.
- The punishment was carried out later that day in private at a police station, with the
presence of his father and a medical doctor
• Legal issues:
- Tyrer brought a complaint before the ECHR: Whether the judicial corporal punishment
in icted on him violated Article 3 of the ECHR, which “prohibits torture or inhuman or
degrading treatment or punishment.”
• Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
- Whether punishment was discriminatory, violating Article 14, in conjunction with Article 3
• Article 14 - PROHIBITION OF DISCRIMINATION: “The enjoyment of the rights and
freedoms set forth in this Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property, birth or other status”
- Arguments:
• Said that the punishment was degrading and violated his dignity, constituting a breach
of Art 3.
• Government of the Isle of Man: corporal punishment was a long-standing local
tradition and served as a deterrent, aligning with local cultural and legal requirements
under Article 63(3)
- Article 63(3): “The provisions of this Convention shall be applied in such territories
with due regard, however, to local requirements.”
• Argued it did not outrage public opinion and was an e ective deterrent.
• Argued that the “torture” did not reach the level of severity (it did not penetrate the
skin, only made it sore and swell)
• NOT degrading because it was carried out in private and the fact that it was
imposed as an alternative to imprisonment
- Ruling:
• The ECHR held:
- The punishment was degrading and violated Article 3
- It was found that the humanization involved went beyond the level inherent in judicial
punishment, undermining the applicant’s dignity and physical integrity.
- While some punishments such as imprisonment may be humiliating, they don’t meet
the threshold for “degrading punishment” under Article 3.
- A punishment can still be degrading even if it’s carried out privately.
- Concluded that local requirements under Art 63(3) could not justify a breach of
Article 3
- The court declined to rule on the Article 14 discrimination claim, as the violation of
Article 3 was su cient.
- Also held the living doctrine that the ECHR is not a static law and must uctuate
depending on present-day conditions
- Dissension:
• Judge Sir Gerald Fitzmaurice dissented, arguing that the punishment was not inherently
degrading and emphasized the importance of considering local cultural norms.
- Isle of Man: is a self-governing British Crown Dependency with its own distinct legal
system
Session 3: The Convention as a living document
READINGS:
Nussberger: The European Court of Human Rights; Living Instrument, pp. 76-84
fl
ffi
ff
fl
 Living Instrument Doctrine
• a) Dynamic interpretation:
- European societal norms and values have evolved signi cantly between 1950 and 2020,
a ecting family structures, gender roles, religion, lifestyles, and labour relations (changes in
perceptions of what is ‘normal’ and ‘socially acceptable’)
• New societal priorities, e.g., climate change, sustainability, and data protection, require
human rights interpretations to adapt dynamically.
• Yes maybe not all ‘social progress’ is the same for all EU countries (di ers in West and
East) but the static application of 1950s values of human rights risks making the
European Convention on Human Rights (ECHR) irrelevant.
• Very speci c circumstances developments in society have motivated the Member States
to adopt new Protocols codifying the changed values and de ning new guarantees
- Ex. the abolition of the death penalty where Protocol No 6 and Protocol No 13 set out
the progress made
• The court guarantees that human rights are interpreted in a dynamic way, not a static
way!!
- The Tyrer v. United Kingdom case introduced the "living instrument" concept,
emphasizing interpretation aligned with contemporary (present-day) conditions (e.g.,
corporal punishment deemed degrading in Article 3).
- Marckx v. Belgium applied this principle to eliminate discriminatory treatment of children
born out of wedlock. (The case concerned the century-long tradition of treating children
born out of wedlock di erently from children born to married parents)
- Dudgeon v. United Kingdom extended the doctrine to decriminalize homosexual acts,
re ecting evolving moral standards.
- Gradual societal transitions create challenges for binary "yes-or-no" decisions by the
Court.
• b) Assessment of transitions:
- Changes in societal norms are often gradual, creating gray areas that complicate binary
judgments. (Complicated because in concrete cases, the court can only give a yes-or-no
alternative)
• Example: Evolving legal recognition of transgender rights, culminating in Christine
Goodwin v. United Kingdom, where the Court recognized the untenable position of
post-operative transsexuals without legal recognition of being a new sex —> “the
unsatisfactory situation in which postoperative transsexuals live in an intermediate zone
as not quite one gender or the other is no longer sustainable.”
- The Court promotes constant progress, re ecting increased human rights standards.
- Open questions:
• How to assess societal changes objectively without overstepping judicial authority.
• Balancing progressive interpretations with legal security (knowing the outcome of a case
based on the law) and state consent (the scope of a State’s consent to be bound by a
treaty is debated).
• Addressing regression and potential lowering of human rights standards.
- Does the living-instrument doctrine necessarily imply an improvement of human rights
or can it also mean lowering standards already achieved?
• c) Evidentiary basis
- For the assessment of these changes, the Court relies on comparative law, analyzing:
• Legislation across Member States (in order to asses the status quo of the legislation or
to nd any trends)
• International treaties and soft law (mirroring conceptions held by international
organizations or other international bodies)
• Reform projects and expert reports.
- Examples:
• Marckx case referenced 2 conventions elaborated by the Council of Europe (only
rati ed by a few states), and a reform project in Belgium—> limited international
conventions and evolving domestic laws. (quite a thin fundament to build on)
• Christine Goodwin case cited emerging European and international consensus on
transgender rights, though evidence was sparse.
• In other cases the Court can, however, refer to converging legislation in many Member
States and make out a ‘European consensus’
ff
fl
fi
fi
fi
ff
fl
fi
fi
ff
 • The approach, while thorough, is not immune to critique, particularly from dissenting
judges.
• d) Lowering of standards
- Backward developments occasionally occur, often as judicial responses to national court
dialogues or external criticism.
- Example: Prisoners' voting rights:
• Hirst v. United Kingdom declared automatic disenfranchisement disproportionate.
• Frödl v. Austria introduced judicial intervention for proportionality.
• Scoppola No. 3 v. Italy allowed legislative discretion, criticized for lowering previously
achieved standards.
- Balancing rights often results in a zero-sum scenario —> —improving the human rights
situation of one person will automatically lower the protection of his or her opponent. (e.g.,
press freedom vs. privacy, maternal vs. paternal rights).
• e) Living-instrument doctrine and legal security
- Unlimited reinterpretation of new standards risks undermining the Court's authority and
legal security.
- The Court maintains a balance by respecting precedents while cautiously adapting
interpretations.
- Legal security ensures the predictability of judgments while accommodating necessary
progress.
• The Court is ‘not formally bound to follow its previous judgments, in the interests of legal
certainty and foreseeability it should not depart, without good reason, from its own
precedents
- Counterarguments (e.g., Russia's objection to being bound by unforeseeable changes) fail
to acknowledge the need for authentic treaty interpretation as a dynamic process.
Case: Fedotova and Others v. Russia (2023)
Article 8: [Link] has the right to respect for his private and family life, his home and his
correspondence.
Article 12: “Men and women of marriageable age have the right to marry and to found a family,
according to the national laws governing the exercise of this right.”
Article 14: Everyone must enjoy the rights enshrined in the European Convention on Human
Rights regardless of skin color, sex, language, political or religious beliefs or origins.
Applicants' Situation:
• The applicants, comprising three same-sex couples, attempted to have their relationships
legally recognized in Russia.
• Their requests were denied based on domestic legislation de ning marriage exclusively as a
union between a man and a woman.
- This denial left them without any legal framework to protect their relationships.
Court's Analysis:
• The ECtHR examined whether the absence of legal recognition for same-sex couples
constituted a violation of Article 8.
• The Court reiterated that while Article 8 primarily aims to protect individuals from arbitrary
interference by public authorities, it also imposes positive obligations on states to ensure
e ective respect for private and family life.
• The Court noted a clear ongoing trend among Council of Europe member states toward legal
recognition of same-sex couples, with a majority having legislated to that e ect.
- This trend was further supported by positions from various international bodies advocating
for such recognition.
Margin of Appreciation:
• The Court acknowledged that states have a certain margin of appreciation in how they
recognize and protect same-sex relationships.
- However, given the evolving consensus and the signi cant impact on individuals' personal
and social identity, this margin is considerably reduced.
• The Court emphasized that the absence of any legal framework for recognition and
protection of same-sex couples fails to strike a fair balance between the applicants' rights
and the community's interests.
Public-Interest Arguments:
ff
fi
fi
ff
 • The Russian Government argued that traditional family values and the prevailing views of
the majority justi ed the lack of legal recognition for same-sex couples.
• The Court dismissed these arguments, stating that protecting the traditional family cannot
justify denying same-sex couples legal recognition and protection.
- It further asserted that access to rights for a minority should not depend on the
acceptance of the majority.
• The Russian Government also argued that they were no longer victims since the couples
were no longer together (inadmissible)
• They also argued that allowing for such will promote homosexuality among minors
(inadmissible)
• Russia wanted to have the case decision be based on Article 12 due to the wording of the
article
Conclusion:
• The ECtHR concluded that Russia's failure to provide any form of legal recognition and
protection for same-sex couples violated Article 8 of the Convention.
• The Court held that states are required to provide a legal framework o ering adequate
recognition and protection for same-sex relationships, though the exact form of such
recognition may vary.
- This decision underscores the necessity for member states to adapt their legal systems to
ensure the rights of same-sex couples are respected and protected.
• This judgment aligns with the Court's previous rulings emphasizing the importance of legal
recognition for same-sex couples and re ects the broader trend toward acknowledging and
protecting diverse family structures within the Council of Europe member states.
Case: Case Opinion 2/13 pursuant to Article 218(11) TFEU — Draft international agreement
— Accession of the European Union to the European Convention for the Protection of
Human Rights and Fundamental Freedoms — Compatibility of the draft agreement with the
EU and FEU Treaties, ECLI:EU:C:2014:2454 (Dec. 18, 2014)
Article 218 (11) of the TFEU: 11. A Member State, the European Parliament, the Council or
the Commission may obtain the opinion of the Court of Justice as to whether an agreement
envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the
agreement envisaged may not enter into force unless it is amended or the Treaties are
revised.
Context:
• Purpose of the Opinion:
- The European Commission sought an opinion under Article 218(11) TFEU to assess
whether the draft agreement for EU accession to the ECHR aligns with EU treaties.
• EU accession to the ECHR would enable individuals to challenge EU institutions for
human rights violations under this framework, showcasing the EU's commitment to
human rights.
• The ECHR and Its Importance:
- The ECHR is a cornerstone for human rights protection in Europe, overseen by the
European Court of Human Rights (ECtHR).
- EU accession to the ECHR would signify the EU's commitment to human rights, allowing
individuals to challenge EU institutions for ECHR violations.
• EU Legal Framework:
- Article 6(2) TEU explicitly mentions EU accession to the ECHR.
• However, the process must respect EU law's autonomy and speci c institutional
framework!!
Key issues:
• Autonomy of EU Law:
- A central concern was whether EU accession to the ECHR might jeopardize the autonomy
of EU law, as recognized in CJEU case law.
- The Court emphasized that EU law forms a unique legal order, distinct from international
law frameworks.
- The CJEU ensures that EU law is interpreted and applied consistently across all Member
States.
• Article 344 TFEU:
fi
fl
fi
ff
 - Article 344 prohibits Member States from resolving disputes concerning EU law outside EU
judicial structures.
- The draft agreement needed to ensure that disputes involving EU law would remain under
CJEU jurisdiction.
• Co-Respondent Mechanism:
- The draft agreement introduced a mechanism for the EU and Member States to jointly
defend cases before the ECtHR.
- The Court scrutinized whether this mechanism could infringe on the CJEU's exclusive role
in interpreting EU law.
• Concern: This mechanism could blur responsibilities between the EU and Member
States, undermining the CJEU's role.
• Prior Involvement of the CJEU:
- The draft included provisions for CJEU review of cases before their referral to the ECtHR.
- The Court evaluated whether these provisions adequately safeguarded its interpretative
monopoly.
• Common Foreign and Security Policy (CFSP):
- The CJEU noted limited judicial review in CFSP matters, raising concerns about
compatibility with ECHR principles.
Decision and Reasoning:
• Incompatibility with EU Law:
- The Court found the draft agreement incompatible with EU law due to potential risks to:
• The autonomy of the EU legal order.
• The exclusive jurisdiction of the CJEU under Article 344 TFEU.
• The internal coherence of the EU's judicial system.
- Speci c concerns included:
• Insu cient safeguards to ensure disputes involving EU law stayed within EU judicial
structures.
• The co-respondent mechanism's potential to blur responsibilities between the EU and
Member States.
• Challenges in applying the prior involvement procedure, particularly in complex or
CFSP-related cases.
Broader Implications:
• Institutional Dynamics:
- The decision re ects the CJEU's insistence on maintaining EU law's supremacy and
autonomy.
- It highlighted tensions between EU integration and external legal commitments.
• Human Rights Protections:
- While the EU Charter of Fundamental Rights provides robust protections, the judgment
delayed the possibility of individuals holding EU institutions accountable under the ECHR
framework.
• Future Accessions:
- The Court's opinion necessitated signi cant revisions to the draft agreement to address
these legal and institutional concerns.
- It underscored the complexity of aligning EU and ECHR legal systems.
Case: Stefano Melloni v. Ministerio Fiscal, Case C399/11 (2013)
Factual Background
• Stefano Melloni was prosecuted in Italy for fraudulent bankruptcy.
• During the proceedings, he ed and was tried in absentia, having appointed legal counsel to
represent him.
• The Italian court convicted him and sentenced him to ten years in prison.
- This conviction was upheld through all levels of the Italian judiciary.
• Subsequently, Italy issued a European Arrest Warrant seeking Melloni's surrender from Spain,
where he was located.
• The Spanish court authorized the surrender, but Melloni challenged this decision, arguing that
his surrender without a guarantee of retrial in Italy would violate his right to a fair trial under
the Spanish Constitution
Legal Issues
• The Spanish Constitutional Court referred several questions to the CJEU:
ffi
fi
fl
fl
fi
 - 1. Whether the Framework Decision on the EAW allows the executing judicial authority
to make the surrender conditional upon the possibility of a retrial in the issuing
Member State when the person was convicted in absentia.
- 2. If the Framework Decision precludes such a condition, whether it is compatible with
the right to a fair trial and the rights of defense as enshrined in Articles 47 and 48 of the
Charter of Fundamental Rights of the European Union (the Charter).
- 3. Whether Article 53 of the Charter permits a Member State to apply its national
standard of fundamental rights protection, which is higher than that provided by EU
law, to refuse execution of a European arrest warrant.
CJEU's Analysis and Judgment
• 1. Interpretation of the Framework Decision:
- The CJEU examined Article 4a(1) of the Framework Decision 2002/584/JHA, as amended
by Framework Decision 2009/299/JHA, which deals with the execution of EAWs issued for
the purpose of executing sentences rendered in absentia.
- The Court noted that the Framework Decision enumerates speci c circumstances under
which the executing authority must surrender the person without the possibility of a
retrial, particularly when the person was aware of the trial and had appointed legal
counsel.
• Since Melloni had appointed lawyers who represented him during his trial, the Court
concluded that the Spanish authorities could not condition his surrender on the
possibility of a retrial in Italy.
• 2. Compatibility with the Charter:
- Addressing the second question, the CJEU a rmed that the Framework Decision is
compatible with the rights to a fair trial and defense as protected by Articles 47 and 48
of the Charter.
- The Court emphasized that while the right to be present at one's trial is fundamental, it is
not absolute!!.
• A person can waive this right, explicitly or implicitly, provided the waiver is made
voluntarily and unequivocally.
- In Melloni's case, his decision to appoint legal counsel and not attend the trial
constituted such a waiver.
• 3. Application of National Standards under Article 53 of the Charter:
- Regarding the third question, the CJEU held that Article 53 of the Charter does not allow a
Member State to apply its national standard of fundamental rights protection to refuse the
execution of an EAW when such refusal would undermine the primacy, unity, and
e ectiveness of EU law.
- The Court reasoned that permitting Member States to apply higher national standards
could compromise the uniform application of the Framework Decision and disrupt the
principles of mutual trust and recognition that underpin the EAW system.
Implications of the Judgment
• The Melloni judgment has signi cant implications for the relationship between EU law and
national constitutional protections:
- Primacy of EU Law: The decision reinforces the doctrine that EU law takes precedence
over national laws, including constitutional provisions. Member States cannot invoke
higher national standards to override EU legal instruments.
- Mutual Trust and Recognition: The ruling underscores the importance of mutual trust
among Member States in recognizing and executing judicial decisions, a cornerstone of
the EAW system. Allowing individual Member States to impose additional conditions
based on national standards would erode this trust and hinder judicial cooperation.
- Uniformity in Fundamental Rights Protection: While Member States can provide more
extensive protection of fundamental rights, such measures must not compromise the
e ectiveness of EU law. The Melloni case clari es that in areas fully harmonized by EU law,
national authorities must adhere to the standards set by EU legislation, even if national
constitutions o er higher protections.
Session 4: Proportionality
READINGS:
Nussberger: The European Court of Human Rights; Proportionality, pp. 96-98
Proportionality test and overall assessment
ff
ff
ff
fi
ffi
fi
fi
 • The court’s jurisprudence is extensive —> extensive case law on each article of the
convention
- Although it cannot be systematized, there are some recurring argument patterns (most
prominently ‘proportionality analysis' and 'overall assessment’)
• Proportionality
- Articles 8 - 11 provide a basis for the analysis of proportionality as they state:
• “There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
- When there is an interference of a right, the court’s analysis of potential has three steps:
• 1. it assesses the legal basis in the light of rule of law requirements
• 2. the legitimate aim of the interference
• 3. the proportionality in the guise of 'necessity in a democratic society’
- Most controversial issues are debated within step 3
• “Necessity within a democratic society” implies a just balance between the protection of
the general interest of the Community and the respect due to fundamental human
rights while attaching particular importance to the latter.
- Weighting the interests of community vs the individual
• In cases between individuals, the court must balance the interest of the private
parties equally
- The ECtHR has not developed a theory of ‘proportionality’ (German Constitutional Court
has)
• However they are similar to each other, in whatever manner it is conducted, assessing
what interests are more important also depends on personal preferences
• In order to enhance the foreseeability and objectivity the Court has a list of factors to be
taken into account in the proportionality analysis
- The lists have been prepared for:
• Contlicts between the individual's right to respect for his or her private life and
the publishing companies' right to freedom of expression, and
• con icts between the rights of foreigners to stay in the country and the
community's interest of deporting them in case of convictions for serious crimes
• This is also a means of proceduralism —> if the national courts have applied the same
criteria as the Court, it will apply the von Hannover formula nding a violation would
require strong reasons.
- Otherwise the Court would decline to substitute its view for that of the domestic
courts.
• Since human rights con icts are so varied, most areas will remain a free-hand exercise
- Within guidance provided by existing case-law
• The Court mainly applies the proportionality analysis when the words ‘necessity in a
democratic society’ are not seen in the Article!!
• Overall assessment:
- Another argumentation pattern
- This technique is used in Article 6 (“a fair and public hearing”) cases where the Court
examines 'the impact of the restriction on the overall fairness of the proceedings' and
decides whether the proceedings as a whole were fair
Case: Gorzelik and Others v. Poland (2004)
Article 11: Freedom of association
• 1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for the
protection of his interests.
• 2. No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others. This Article
shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration of the State.
fl
fl
fi
 Background:
• In December 1996, Jerzy Gorzelik and 190 other individuals sought to establish an
association named the "Union of People of Silesian Nationality" in Poland.
• They applied for o cial registration with the Katowice Regional Court.
• The primary objective of this association was to represent individuals identifying as
Silesian—a group with a distinct cultural and historical background in southwestern Poland.
• The Polish authorities, however, denied the registration.
- The refusal was based on the assertion that recognizing Silesians as a "national minority"
could potentially allow the association to bypass certain electoral laws, particularly the 5%
threshold required for political representation in the Polish parliament.
- The authorities expressed concerns that the association's true intent was to gain electoral
advantages rather than to promote cultural or ethnic interests.
Legal proceedings:
• Following the refusal, the applicants contended that the denial infringed upon their right to
freedom of association as protected by Article 11 of the European Convention on Human
Rights.
- They argued that the authorities had arbitrarily denied their association's registration,
thereby impeding their ability to collectively express and promote their cultural identity.
- The case progressed through the Polish judicial system, ultimately reaching the European
Court of Human Rights.
- The central question before the ECtHR was whether the Polish authorities' refusal to
register the association constituted a violation of Article 11.
Court Analysis and Judgement:
• In its assessment, the ECtHR acknowledged that the refusal to register the association did
constitute an interference with the applicants' freedom of association.
- However, the Court emphasized that such interference could be justi ed if it was
"prescribed by law," pursued a "legitimate aim," and was "necessary in a democratic
society.”
• The Court recognized the government's concerns about maintaining the integrity of its
electoral system and preventing potential abuses that could arise from groups seeking
undue advantages by claiming national minority status.
- It was noted that the applicants could have addressed the authorities' concerns by
making minor modi cations to the association's name or its memorandum (changing
the name so that it wasn’t an organization), which would not have hindered their
ability to achieve their stated objectives.
• Ultimately, the ECtHR concluded that the interference with the applicants' freedom of
association was proportionate to the legitimate aims pursued by the Polish authorities.
- The Court a rmed the “direct relationship between democracy, pluralism and the
freedom of association” and “ that only convincing and compelling reasons can
justify restrictions on that freedom.”
- “The disputed restriction on the establishment of the association was essentially
concerned with the label which the association could use in law – with whether it
could call itself a “national minority” – rather than with its ability “to act collectively in
a eld of mutual interest”. As such, it did not go to the core or essence of freedom of
association.”
- Therefore, the Court held that there was no violation of Article 11 in this case
• The national authorities had therefore not overstepped their margin of appreciation in
considering that there had been a pressing social need, at the moment of registration, to
regulate the free choice of an association to call itself an “organisation of a national
minority”, in order to protect the existing democratic institutions and election procedures
in Poland.
• The refusal to register the association had been “necessary in a democratic society”.
Case: Oršuš and Others v. Croatia (2010)
Article 2 of Protocol 1: an individual right to education
Article 6: Everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.
Article 14: The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language, religion,
fi
ffi
ffi
fi
fi
 political or other opinion, national or social origin, association with a national minority,
property, birth or other status.
Background:
• The applicants, 15 Croatian nationals of Roma descent, attended primary schools in the
Međimurje County of Croatia.
• They were placed in separate classes composed solely of Roma students, ostensibly due
to their insu cient pro ciency in the Croatian language.
- The curriculum in these Roma-only classes was reportedly reduced by up to 30%
compared to the standard curriculum.
• Statistics indicated that only 16% of Roma children aged 15 completed primary
education, compared to 91% of the general population, and the dropout rate among
Roma pupils was 84%, signi cantly higher than the national average.
- They also submitted a psychological study which reported that segregated education
produced emotional and psychological harm in Roma children, both in terms of self-
esteem and development of their identity
Domestic Legal Proceedings:
• In April 2002, the applicants initiated legal proceedings against their respective schools,
alleging racial discrimination and violations of their right to education.
- They contended that their segregation into Roma-only classes was discriminatory and
detrimental to their educational development.
• The Croatian municipal and constitutional courts dismissed their claims, accepting the
argument that the segregation was a lawful measure to address the Roma children's
inadequate command of the Croatian language
ECtHR Proceedings:
• Dissatis ed with the domestic courts' decisions, the applicants lodged a complaint with the
ECtHR, alleging violations of Article 6 (right to a fair trial) and Article 14 (prohibition of
discrimination) of the European Convention on Human Rights, in conjunction with Article 2 of
Protocol No. 1 (right to education).
- They argued that their segregation was based on ethnic discrimination rather than
language pro ciency and that the length of the domestic proceedings was excessive
Judgement:
• On July 17, 2008, a Chamber of the ECtHR found a violation of Article 6 due to the
excessive length of the domestic proceedings (more than 4 years) but held that there was no
violation of Article 14 in conjunction with Article 2 of Protocol No. 1.
- The Chamber concluded that the segregation was based on language pro ciency and not
ethnicity, and thus did not constitute discrimination.
• Upon referral, the Grand Chamber re-examined the case and delivered its judgment on
March 16, 2010.
- The Government had not shown that such practice had been applied in respect of any
other pupils with insu cient knowledge of Croatian in any other part of the country. Such
practice could therefore hardly have been regarded as common or general practice
designed to address the problems of children who lacked adequate command of the
language of instruction.
- The Court further noted that there was no established programme for addressing the
special needs of Roma children with insu cient command of Croatian that would include a
time-frame for the various phases of their acquisition of the necessary language skills.
- The Court also noted that safeguards such as extra language courses were not provided to
some of the students
- The Court unanimously upheld the nding of a violation of Article 6 due to the protracted
length of the domestic proceedings.
- By a narrow majority of nine votes to eight, the Court also found a violation of Article 14
in conjunction with Article 2 of Protocol No. 1.
- The majority held that the placement of the applicants in Roma-only classes lacked
su cient safeguards to ensure that the State had adequately considered their special
needs as members of a disadvantaged group.
- The Court emphasized that while addressing language de ciencies is a legitimate aim, the
means employed must be proportionate and accompanied by adequate safeguards to
prevent discrimination. The absence of clear criteria for transferring students to mixed
classes and the inde nite duration of the segregation were particularly concerning
ffi
fi
ffi
fi
fi
ffi
fi
fi
fi
ffi
fi
fi
 • Following the judgment, the Croatian government was obligated to take measures to
eliminate discriminatory practices in its education system and to integrate Roma children
into mainstream classes.
• Damages: Article 41: EUR 4,500 to each of the applicants in respect of non-pecuniary
damage.
Dissenting Opinions:
• The eight dissenting judges contended that the di erential treatment was based solely on
language pro ciency, not ethnicity, and thus fell within the State's margin of appreciation.
• They argued that the placement in separate classes was a temporary measure aimed at
improving language skills and that the applicants' poor school attendance contributed to
their prolonged segregation.
• The dissenters emphasized that the measures were not intended to discriminate but to
address genuine educational needs.
Session 5: ARTICLE 2 AND THE RIGHT TO LIFE
Article 2:
• [Link]’s right to life shall be protected by law. No 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.
• 2. Deprivation of life shall not be regarded as in icted in contravention of this Article
when it results from the use of force which is no more than absolutely necessary:
- (a)in defence of any person from unlawful violence;
- (b) in order to e ect a lawful arrest or to prevent the escape of a person lawfully
detained;
- (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
READINGS:
Case: McCann and Others v. the United Kingdom (1995)
Facts of the Case
- Background
• On 6 March 1988, three suspected members of the Irish Republican Army (IRA)—Daniel
McCann, Mairéad Farrell, and Sean Savage—were shot and killed by members of the
British Special Air Service (SAS) in Gibraltar. The British authorities suspected them of
planning a terrorist bombing as part of the IRA’s armed campaign against the United
Kingdom.
• Events Leading to the Shooting
- The British intelligence services received information that the three individuals were
preparing to detonate a car bomb in Gibraltar. (The suspects parked a car in a crowded
area and proceeded on foot. Believing they possessed a remote detonator, Special Air
Service (SAS) soldiers confronted them)
- The British authorities had been tracking their movements and believed they posed an
imminent threat.
- Undercover members of the SAS, acting on orders, engaged them in a lethal force
operation on the streets of Gibraltar, shooting all three.
- The SAS soldiers later testi ed that they opened re because they believed the suspects
were reaching for detonators, which could have triggered a massive explosion.
- However, no weapons, explosives, or detonators were found on the bodies of the
deceased or in the surrounding area.
• However, a second car registered to one of the suspects, located in Spain, was found to
contain explosives.
Procedural History
• The families of the deceased challenged the lawfulness of the killings, arguing that they
amounted to an extrajudicial execution.
• The case was initially examined in domestic inquiries in the UK, which concluded that the
soldiers had acted lawfully.
• The applicants (the families) then brought the case to the European Court of Human
Rights (ECHR), alleging that the UK had violated Article 2 (Right to Life) of the European
Convention on Human Rights.
Arguments Presented
fi
ff
fi
ff
fl
fi
 Applicants (Families of the Deceased)
The families of McCann, Farrell, and Savage argued that:
• The killings were an unlawful use of force under Article 2 of the ECHR.
• The British authorities should have taken non-lethal measures, such as arresting the
suspects instead of killing them.
• The operation was poorly planned and executed, making lethal force unnecessary.
• The government misled the SAS soldiers into believing that the suspects posed an
immediate danger, which was not true.
UK Government's Defense
The UK government defended the actions of the SAS, arguing that:
• The soldiers acted in self-defense, believing that the suspects were about to trigger an
explosion.
• The operation was based on intelligence reports, which indicated that a bomb attack was
imminent.
• The authorities had a duty to prevent a terrorist attack and protect the public.
• The ECHR should not second-guess military and intelligence decisions in counterterrorism
situations.
Judgment of the Court
On 27 September 1995, the European Court of Human Rights ruled in a split decision (10 votes
to 9) that the UK had violated Article 2 of the Convention.
Key Findings:
• The Court did not nd that the SAS soldiers had intentionally carried out an extrajudicial
execution. It accepted that they genuinely believed they were acting in self-defense.
- However, the Court criticized the planning and control of the operation by the British
authorities.
• The use of lethal force was not "absolutely necessary", as required under Article 2.
• The British government failed to properly assess whether the suspects actually posed an
immediate threat.
• Alternative non-lethal measures (such as arresting the suspects earlier) were not
adequately considered.
• The intelligence was awed, and there was no proper veri cation of whether the
suspects had explosives.
Key Legal Precedents Set by the Case
• State authorities must plan military or law enforcement operations carefully to
minimize the risk to human life.
• The case reinforced the strict interpretation of Article 2, establishing that states must
ensure that security forces do not use excessive force unnecessarily.
• Governments must exercise strict control over lethal force operations to prevent
arbitrary killings.
Impact and Signi cance
The McCann judgment is considered a landmark case in human rights law for clarifying the
obligations of states under Article 2.
Key E ects:
1. Strengthened Human Rights Protections:
◦ This case reinforced that Article 2 applies not only to direct killings by state
agents but also to how security operations are planned and executed.
2. Reformed Counterterrorism Operations:
◦ The case in uenced how European states conduct security and
counterterrorism operations, particularly when dealing with suspected terrorists.
3. Higher Standards for the Use of Force:
◦ The ruling established that states must take all possible precautions before
resorting to lethal force.
Conclusion
• The European Court of Human Rights held the UK responsible for violating Article 2, not
because of the actions of the SAS soldiers themselves but due to the de cient planning and
control of the operation.
ff
fl
fi
fi
fl
fi
fi
 - Paragraph 2 does not primarily de ne instances where it is permitted intentionally to kill an
individual, but describes situations where it is permitted to "use force" which may result,
as an unintended outcome, in the loss of life - the use of force must be no more than
"absolutely necessary" for the achievement of one of the purposes set out in sub-
paragraphs (a), (b) or (c).
• This case set an important precedent on state responsibility in counterterrorism
operations, ensuring that the use of lethal force is subject to strict legal scrutiny.
• ARTICLE 50 OF THE CONVENTION
- A. Pecuniary and non-pecuniary damage: not appropriate to make award since terrorist
suspects had been intending to plant bomb in Gibraltar - claim dismissed.
- B. Costs and expenses: partial reimbursement awarded.
- Conclusion: respondent State to pay speci ed sums to applicants (unanimously).
Case: Pretty v. the United Kingdom (2002)
Facts of the Case
- Background
• The applicant, Diane Pretty, was a 43-year-old British national su ering from Motor
Neurone Disease (MND), an incurable and degenerative neurological condition that leads to
progressive muscle weakness, paralysis, and ultimately respiratory failure.
• As her disease progressed, she became paralyzed from the neck down and required tube
feeding.
• Her intellect remained una ected, and she had full mental capacity to make decisions
regarding her own care and future.
- Request for Assisted Suicide
• While suicide itself was decriminalized under UK law, assisting someone to commit suicide
remained a criminal o ense under Section 2(1) of the Suicide Act 1961, punishable by up
to 14 years in prison.
- “it remains a criminal o ence for a third party to assist or encourage another to commit
suicide”
• Mrs. Pretty wished to end her life before the disease reached its nal painful stages, but
she was physically incapable of doing so without help.
• She requested that her husband be allowed to assist her in dying without facing
prosecution.
• Her solicitor wrote to the Director of Public Prosecutions (DPP) on 27 July 2001, seeking
an undertaking that her husband would not be prosecuted.
• On 8 August 2001, the DPP refused, stating that he had no power to grant such
immunity.
Procedural History
1. Judicial Review in the UK Courts
• Mrs. Pretty applied for judicial review, arguing that the refusal of immunity violated
her rights under Articles 2, 3, 8, 9, and 14 of the European Convention on Human
Rights (ECHR).
• The Divisional Court rejected her claims on 17 October 2001, ruling that:
- The DPP had no power to give immunity from prosecution.
- The Suicide Act was not incompatible with the ECHR.
• She appealed to the House of Lords, which dismissed her appeal on 29 November
2001, upholding the Divisional Court’s ruling.
2. Application to the European Court of Human Rights (ECHR)
• On 21 December 2001, Mrs. Pretty led an application with the European Court of
Human Rights (ECHR). (Was accepted base on article 29 of the ECHR “the European
Court of Human rights may give “advisory opinions on legal questions concerning the
interpretation of the present Convention”.”
• A public hearing was held on 19 March 2002.
• Judgment was delivered on 29 April 2002.
Arguments Presented
Applicant (Mrs. Pretty)
Mrs. Pretty argued that the UK’s refusal to allow her husband to assist in her suicide violated her
rights under the European Convention on Human Rights:
ff
ff
ff
fi
fi
fi
ff
fi
 1. Article 2 (Right to Life)
◦ She argued that the right to life includes the right to choose how and when to
die.
◦ The State should not interfere with her decision to end her life with assistance.
2. Article 3 (Prohibition of Inhuman or Degrading Treatment)
◦ The su ering and indignity she would endure in the nal stages of her disease
amounted to inhuman and degrading treatment.
◦ The State had an obligation to prevent this su ering by allowing assisted
suicide.
3. Article 8 (Right to Respect for Private and Family Life)
◦ The right to personal autonomy includes the right to control one’s own body,
including decisions about death.
◦ The UK’s absolute ban on assisted suicide disproportionately interfered with
her private life.
4. Article 9 (Freedom of Thought, Conscience, and Religion)
◦ She argued that her wish to die was based on a deeply held personal belief, and
the UK’s law prevented her from acting according to her conscience.
5. Article 14 (Prohibition of Discrimination)
◦ She claimed that the law discriminated against disabled people because able-
bodied individuals could commit suicide without assistance, while disabled
people like her were denied the same ability.
UK Government's Defense
The UK government opposed all claims, arguing that:
• Article 2 does not grant a right to die—it is designed to protect life, not end it.
• There is no obligation under Article 3 to facilitate death as a way to prevent su ering.
• Article 8 does not include a right to assisted suicide.
• The law prohibiting assisted suicide was necessary to protect the vulnerable from
abuse and coercion.
• The Suicide Act applied equally to all individuals and was not discriminatory.
Judgment of the Court
On 29 April 2002, the European Court of Human Rights (Fourth Section) delivered its
judgment, ruling against Mrs. Pretty on all grounds.
Key Findings:
1. Article 2 (Right to Life)
◦ The Court held that Article 2 does not confer a right to die.
◦ The State is required to protect life, not to allow its termination.
◦ There was no violation.
2. Article 3 (Prohibition of Inhuman or Degrading Treatment)
◦ While the Court recognized Mrs. Pretty’s su ering, it ruled that the UK was not
responsible for her disease.
◦ Failure to allow assisted suicide did not amount to inhuman or degrading
treatment.
◦ There was no violation.
3. Article 8 (Right to Respect for Private and Family Life)
◦ The Court accepted that the right to private life includes personal autonomy
and decisions about one’s body.
◦ However, the UK’s ban on assisted suicide was justi ed to protect vulnerable
individuals from potential abuse. (Was proportionate “justi ed as necessary in a
democratic society.”)
◦ There was no violation.
4. Article 9 (Freedom of Thought, Conscience, and Religion)
◦ The Court found no evidence that Mrs. Pretty’s belief in assisted suicide was
restricted. Her views re ected her commitment to the principle of personal
autonomy, her claim was a restatement of the complaint under Article 8.
◦ There was no violation.
5. Article 14 (Prohibition of Discrimination)
ff
fl
ff
ff
fi
fi
fi
ff
 ◦ The Court held that the law applied equally to all individuals.
◦ There was no violation.
Impact and Signi cance
The ruling in Pretty v. the United Kingdom is a landmark case in European human rights law
concerning assisted suicide and end-of-life rights.
• Key Legal Precedents Set:
- No right to die under the ECHR: Article 2 protects life but does not include a right to
end it.
- Legal bans on assisted suicide are justi ed: Governments can criminalize assisted
suicide to protect the vulnerable.
- Personal autonomy has limits: The right to private life does not extend to assisted
suicide.
• Broader Implications:
- This case reinforced legal prohibitions on euthanasia and assisted suicide across many
European countries.
- It highlighted the ethical and legal tension between individual autonomy and state
interest in protecting life.
- Subsequent cases on assisted suicide (e.g., Haas v. Switzerland, 2011) have followed
the principles set in Pretty.
Conclusion
• The European Court of Human Rights ruled unanimously in favor of the UK, concluding
that its ban on assisted suicide did not violate the ECHR.
• While recognizing Mrs. Pretty’s su ering, the Court determined that the UK’s laws were
necessary to protect society and that the right to life does not include a right to die.
Case: Haas v. Switzerland (2011)
Facts of the Case
Background
• The applicant, Ernst G. Haas, was a Swiss national born in 1953.
• He had been su ering from a serious bipolar a ective disorder for over 20 years and had
been hospitalized multiple times for psychiatric treatment.
• He had attempted suicide twice in the past and had become a member of Dignitas, an
association in Switzerland that facilitates assisted suicide.
• Due to his condition, he believed that his quality of life was unbearable, and he wished to
end his life in a digni ed and painless manner.
Request for Assisted Suicide
• In Switzerland, assisted suicide is legal as long as the person assisting is not acting from
sel sh motives (Article 115 of the Swiss Criminal Code).
- However, access to sodium pentobarbital, the lethal drug used for assisted suicide,
required a medical prescription.
• Haas sought to obtain sodium pentobarbital without a prescription, arguing that his
mental condition made it impossible for him to live with dignity.
Rejections by Authorities
• June 2005: The Swiss authorities refused his request, stating that sodium pentobarbital is a
controlled substance and requires a prescription from a doctor.
• July 2005: The Federal Department of Public Health con rmed that Swiss law did not
impose an obligation on the state to provide a means for assisted suicide.
• August 2005: The Canton of Zürich’s Health Department upheld the decision.
• December 2005: The Federal Department of the Interior also dismissed Haas’ appeal,
stating that only doctors could issue prescriptions for such substances.
Appeal to the Swiss Federal Court
• Haas appealed to the Swiss Federal Court, arguing that:
- Article 8 of the ECHR guaranteed his right to choose the time and manner of his death.
- The requirement of a medical prescription interfered with this right.
• November 2006: The Federal Court rejected his appeal, stating that:
- The right to self-determination does not include a right to state-assisted suicide.
fi
ff
fi
fi
ff
fi
ff
fi
 - The State has a fundamental duty to protect life, even in cases where an individual is
seeking to end their own life.
- The prescription requirement is necessary to prevent impulsive suicides and protect
vulnerable individuals.
Subsequent Attempts to Obtain Sodium Pentobarbital
• May 2007: Haas contacted 170 psychiatrists in Switzerland to obtain a prescription.
• None agreed to provide him with the lethal drug.
- Many cited ethical concerns, while others believed his condition was treatable.
• July 2007: Haas submitted an application to the European Court of Human Rights
(ECHR), claiming that Switzerland’s refusal violated his right to private life under Article 8.
Arguments Presented
Applicant (Haas)
Haas argued that the Swiss authorities violated his right to private life (Article 8 ECHR) by:
1. Preventing him from accessing assisted suicide in a digni ed manner:
◦ He did not want to risk a failed suicide attempt, which could result in severe
su ering or disability.
◦ Sodium pentobarbital is the only e ective and painless method of suicide.
2. Placing an undue burden on mentally ill individuals:
◦ Able-bodied individuals can end their own lives without requiring state
permission.
◦ By requiring a prescription, the law discriminates against disabled people who
need assistance.
3. Ignoring his autonomy and right to self-determination:
◦ Article 8 should protect an individual’s right to choose how and when to die.
4. Making his right theoretical rather than practical:
◦ He tried 170 psychiatrists, but none agreed to help.
◦ This proved that, in practice, his right to a digni ed death was being denied.
Swiss Government’s Defense
The Swiss Government opposed the claim, arguing that:
1. The Swiss law does not prohibit assisted suicide but sets safeguards:
◦ The requirement for a medical prescription ensures that suicide is a free and
informed choice, not a rash or coerced decision.
◦ This prevents abuse and protects vulnerable individuals from impulsive actions.
2. The State has a duty to protect life under Article 2 (Right to Life):
◦ Article 2 does not create a right to die.
◦ The State must ensure safeguards to prevent suicide based on treatable
mental conditions.
3. Other means of ending life were available to Haas:
◦ He was not physically incapable of suicide.
◦ He could have ended his life by other means.
4. The case was di erent from Pretty v. the UK (2002):
◦ Unlike Diane Pretty, who had a degenerative disease and was physically unable
to commit suicide, Haas was not at the terminal stage of an illness.
◦ He was not being prevented from ending his life, only from obtaining a lethal
drug without medical supervision.
Judgment of the Court
The ECHR ruled unanimously against Haas, concluding that Switzerland had not violated
Article 8.
Key Findings:
1. There is no right to assisted suicide under Article 8:
◦ The Court rea rmed that the right to private life does not include a right to
state-assisted suicide.
◦ Switzerland’s requirement of a medical prescription was a justi ed safeguard.
2. The State has a legitimate interest in protecting life:
◦ The prescription requirement helps ensure that suicide is a well-considered
decision.
ff
ffi
ff
ff
fi
fi
fi
 ◦ This is especially important in cases of mental illness, where a wish to die may
be temporary or linked to a treatable disorder.
3. Switzerland’s law was proportionate:
◦ The State has a margin of appreciation (leeway) in setting conditions for assisted
suicide.
◦ Requiring a psychiatric evaluation and a doctor’s prescription is reasonable.
4. The law does not make suicide impossible:
◦ The Court acknowledged that Switzerland’s laws were already relatively
permissive.
◦ Other means of suicide remained available to the applicant.
Final Decision:
Switzerland did not violate Article 8. The requirement to obtain a medical prescription was
justi ed and proportionate.
Impact and Signi cance
Legal Precedents Set by the Case:
• Article 8 does not guarantee an absolute right to die or to obtain assisted suicide.
• States have a duty to protect life, and requiring medical safeguards is a legitimate
regulation.
• Laws on assisted suicide must balance individual autonomy with the protection of
vulnerable individuals.
• Mental illness cases require heightened safeguards.
Broader Implications:
• This ruling reinforced state regulations on assisted suicide across Europe.
• It contrasted with more permissive laws in Belgium, Luxembourg, and the Netherlands,
which allow euthanasia under speci c conditions.
• The case has been cited in later judgments regarding end-of-life decisions and
physician-assisted suicide.
Conclusion
• The ECHR upheld Switzerland’s legal framework, ruling that its prescription requirement
for lethal drugs was necessary to protect public health and prevent abuse.
• While acknowledging Haas’ su ering, the Court prioritized the need for safeguards in
assisted suicide cases, particularly for individuals with mental health conditions.
Session 6: ARTICLE 2 AND THE RIGHT TO LIFE (CONT.)
READINGS:
Nussberger: The European Court of Human Rights; European Consensus, pp. 84-88
European Consensus as a legal term
• "European consensus" refers to the level of uniformity present in the legal frameworks of
the member States of the Council of Europe on a particular topic.
- Sounds impossible due to di erences in history and culture, however perceptions have
changed in a similar way throughout Europe
• Consensus does not necessarily imply unanimity - if there is a small minority of States not
following the general trend, the Court would still claim that there is 'nearly a consensus’ or at
least speak of 'a consensus amongst a substantial majority of the Contracting States of the
Council of Europe’
• When gradually States opt for a speci c solution, the Court would detect an 'emerging
consensus', it may also observe certain tendencieso or circumscribe homogeneous legal
regulations in other ways.
• In some situations there is no consensus at all, concerning mostly delicate moral questions
(ex. Incest, biological father challenging step fathers, homosexual partnerships, surrogate
motherhood or euthanasia)
Methodological approach
• The ECtHR bases its comparative law analysis on legal systems of Council of Europe
Member States.
• In some cases, the Court includes legal developments outside Europe
- Allows to broaden the scope (ex. In Christine Goodwin’s case where EU had not been
making much progress in advancing transexual rights)
fi
fi
ff
ff
fi
fi
 - It may also be explained by more pragmatic reasons when the information on non-
European States was part of research provided by the parties and not excluded by the
Court
• ex. Case of Stubing: the German FCC had based its nding on a comparative research
on the criminalization of incest worldwide.
• (ex. Africa in Sitaropolous and Giakoumopoulous v Greece: concerning the right to
vote from abroad —> the Court even included practice in Africa in its analysis
• Issues with the methodology:
- Simple country-counting (the amount of countries with a certain regulation) lacks depth.
(No weighting)
- Divergent legislation in microstates vs. large states is treated equally.
• e.g. in the abortion case of A, B and C v Ireland
- Regional patterns (e.g., Western vs. Eastern Europe) may be overlooked.
• e.g. in the case of sexual self-determination and LGBT rights?
- Choice of reference points (e.g., university bans vs. school bans on religious symbols)
a ects the outcome
• The critique of using the wrong yardstick is a decisive element in Judge Tulkens'
dissenting vote in the case Leyla Sahin v Turkey
- It is unclear if reference to emerging trends is a 'must or an option for the court
• In Bayatyan v Armenia: the court considers it a must
• However in other cases, the court if far more prudent
- Subjective element in the comparative element —> countries can be counted in or out (no
xed methodology)
- Unclear what is a 'substantial minority' contradicting the existence of consensus
• Hirst v the United Kingdom - a minority of thirteen States not allowing prisoners voting
was neglected
• Ahrens v Germany - a minority of nine states with legislation not allowing presumed
biological fathers to challenge the position of the mother's husband as legal father' was
deemed to be relevant
Functions of Consensus
• Key function: De nes the margin of appreciation (level of discretion states have).
• If there is broad consensus among European states on how a right should be protected
(e.g., banning capital punishment), the ECtHR will apply a narrow margin.
• If there is no clear consensus or signi cant variation in how states handle an issue
(e.g., assisted suicide, same-sex marriage recognition), states get a wider margin.
- Used to justify dynamic interpretation of the European Convention on Human Rights
(ECHR). (central piece in the living-instrument architecture)
- Helps harmonize human rights standards across countries.
• A, B and C v Ireland: 'Indeed, one of the paramount functions of the case-law is to
gradually create a harmonious application of human rights protection, cutting across the
national boundaries of the Contracting States and allowing the individuals within their
jurisdiction to enjoy, without discrimination, equal protection regardless of their place of
residence’
- Can predict acceptability of Court rulings:
• If a ruling contradicts widespread legal norms, implementation may be di cult
- e.g., prisoner voting rights in Russia and the UK
• The dissenting judges had stressed the fact that not only had thirteen countries
excluded prisoners' voting rights, but many of them had considered this prohibition
even as one of the fundamental principles of democracy and written it into their
Constitution
- Caused many problems in executing these judgements
• The Court aims for progressive human rights development, not regression (e.g.,
restricting free speech due to emerging restrictive laws is not justi ed).
- As stated in the preamble of the Convention, it aims for ‘the achievement of greater
unity’ not the opposite!
Case: Vo v. France (2004)
- Legal Issue: Whether the unintentional killing of a fetus should be classi ed as unintentional
homicide under Article 2 (Right to Life) of the European Convention on Human Rights
Facts of the Case
fi
ff
fi
fi
fi
fi
fi
ffi
 Background
• The applicant, Thi-Nho Vo, a Vietnamese-born French national, was pregnant when she
attended Lyon General Hospital on 27 November 1991 for a routine check-up during her
sixth month of pregnancy.
• On the same day, another woman with a similar name (Thi Thanh Van Vo) was scheduled to
have a contraceptive coil removed at the same hospital.
• Due to a mix-up in identity, Dr. G. mistakenly assumed the applicant was the patient for
the coil removal.
• Without properly verifying her condition, the doctor attempted to remove the coil,
accidentally piercing the amniotic sac, causing signi cant loss of amniotic uid.
Medical Consequences
• The applicant was immediately admitted to the hospital, and further tests revealed that the
amniotic uid had not replenished, making it impossible for the pregnancy to continue.
• On 5 December 1991, a therapeutic abortion was performed on medical grounds.
• An autopsy of the fetus showed that it was between 20 and 21 weeks old, weighed 375
grams, and was not viable outside the womb.
Procedural History
Criminal Complaint and Proceedings in France
• On 11 December 1991, the applicant and her partner led a criminal complaint, alleging:
1. Unintentional injury to the applicant
2. Unintentional homicide of the fetus
• The rst expert medical report concluded that there was no evidence of external
violence or malformations, meaning the fetus would likely have survived if not for the
doctor's mistake.
Trial Court Decision (1996)
• Dr. G. was prosecuted for unintentional homicide, but the Lyon Criminal Court
acquitted him.
• The court ruled that a 20-21 week-old fetus was not legally a "human person" under
French criminal law, so unintentional homicide could not apply.
Appeal Court Decision (1997)
• The Lyon Court of Appeal overturned the acquittal, ruling that:
◦ French law guarantees the respect of human life "from the beginning of life."
◦ The doctor’s negligence directly caused the death of the fetus, which was
su cient to qualify as unintentional homicide.
◦ Dr. G. was sentenced to a six-month suspended prison term and a ne of
10,000 francs.
French Supreme Court (Court of Cassation) Decision (1999)
• The French Supreme Court overturned the conviction, ruling that:
◦ The o ense of "unintentional homicide" under Article 221-6 of the French
Criminal Code applies only to persons born alive.
◦ Since French law does not de ne a fetus as a person, unintentional homicide
could not apply.
◦ The case was dismissed without further retrial.
Application to the European Court of Human Rights (ECHR)
• The applicant, Mrs. Vo, submitted her case to the ECHR on 20 December 1999,
arguing that:
1. The lack of criminal punishment for the death of her fetus violated Article 2
(Right to Life) of the European Convention on Human Rights.
2. The French legal system failed to protect the right to life of her unborn child.
• The case was initially assigned to the Third Section of the ECHR but was later referred to
the Grand Chamber due to its importance.
Arguments Presented
Applicant (Mrs. Vo)
• The applicant claimed that:
1. A fetus should be recognized as a "person" under Article 2.
2. The right to life applies from the moment of conception.
ffi
fi
ff
fl
fi
fi
fi
fi
fl
 3. The French legal system failed to protect the fetus, since the doctor’s actions
led to death without criminal consequences.
4. If the fetus had been injured but survived, the doctor could have been convicted
of unintentional injury—so logically, its death should have resulted in a
homicide charge.
French Government’s Defense
• The French government opposed the claim, arguing that:
1. Article 2 does not apply to fetuses since the term "everyone" in the Convention
applies only to born persons.
2. There is no European consensus on whether a fetus has a right to life.
3. Criminal punishment is not the only way to protect life—France allows civil
lawsuits for medical negligence.
4. The State has a margin of appreciation (discretion) in de ning when life begins.
Judgment of the Court
On 8 July 2004, the ECHR ruled (14 votes to 3) in favor of France, nding no violation of
Article 2.
Key Findings:
1. Article 2 does not explicitly de ne when life begins.
2. There is no European consensus on the legal status of a fetus.
3. Each State can decide whether a fetus has legal personhood.
4. France was not required to apply criminal sanctions, as other legal remedies (e.g., civil
compensation) were available.
• The applicant could have brought an action for damages against the authorities on
account of the doctor’s negligence
5. Article 2 does not require States to criminalize unintentional fetal deaths.
Conclusion:
• The ECHR rejected the claim that Article 2 protects fetuses as persons.
• France was not required to recognize unintentional fetal deaths as homicide.
• The lack of criminal prosecution did not violate human rights law.
Impact and Signi cance
Legal Precedents Set by the Case:
• A fetus does not have an explicit right to life under the ECHR.
• States have discretion ("margin of appreciation") in de ning fetal legal status.
• Governments are not required to criminalize unintentional fetal deaths.
Broader Implications:
• This case has been widely cited in debates on fetal rights, abortion, and bioethics.
• It upheld France’s approach, allowing civil, but not criminal, remedies for medical
errors a ecting unborn children.
• The ruling in uences cases involving medical negligence, fetal personhood, and
abortion laws across Europe.
Conclusion
• The ECHR’s Grand Chamber ruled in favor of France, concluding that Article 2 does not
require States to criminalize the unintentional killing of a fetus. The case remains a key
precedent on fetal rights and state obligations under the European Convention on
Human Rights.
Case: A, B and C v. Ireland (2010)
• Legal Issue: Whether Ireland’s restrictive abortion laws violated the rights of women under
the European Convention on Human Rights (ECHR), particularly under Article 8 (Right to
Private Life), Article 3 (Prohibition of Inhuman and Degrading Treatment), and Article 14
(Prohibition of Discrimination).
Facts of the Case
Background
• The case involved three applicants (A, B, and C), all of whom were women residing in
Ireland who had traveled to England for abortions because they could not legally access
abortion services in Ireland.
ff
fl
fi
fi
fi
fi
fi
 • Ireland had one of the most restrictive abortion laws in Europe, prohibiting abortion except
when there was a real and substantial risk to the life of the mother.
- Abortion is prohibited under Irish criminal law by sections 58 and 59 of the O ences
Against the Person Act 1861.
• The applicants argued that Irish law disproportionately burdened women by forcing them
to travel abroad for an abortion, leading to nancial, medical, and emotional distress.
Circumstances of Each Applicant
Applicant A
• Unintended pregnancy despite using contraception.
• Had four children, one with a disability, and was living in poverty.
• Had struggled with alcoholism and had been working towards regaining custody of her
children.
• Believed that carrying the pregnancy to term would jeopardize her ability to reunite with
her children.
• Borrowed money at high interest rates to travel to England for an abortion.
• Su ered medical complications (excessive bleeding) upon her return but was afraid to
seek medical help in Ireland.
Applicant B
• Became pregnant unintentionally.
• Took the morning-after pill, but doctors warned of a possible ectopic pregnancy
(which was later ruled out).
• Unmarried and not nancially prepared for a child.
• Was forced to travel alone to England for an abortion.
• Clinic sta advised her to tell Irish doctors she had a miscarriage if she needed post-
abortion medical care.
• Experienced post-abortion complications (blood clotting) but was afraid to disclose
the abortion to Irish doctors.
Applicant C
• Had been diagnosed with a rare form of cancer and had undergone chemotherapy.
• Was unaware that she was pregnant when she underwent cancer-related medical tests,
which could have harmed the fetus.
• Doctors in Ireland refused to advise her on the impact of pregnancy on her cancer
due to the "chilling e ect" of Irish law.
- ‘Chilling e ect’ —> the strict criminalization of abortion created an atmosphere of fear
and uncertainty for both pregnant women and medical professionals. This e ect
discouraged doctors from providing necessary information and services to women,
even when their health or life was at risk.
• She traveled to England for an abortion and su ered complications from an incomplete
abortion.
• Irish doctors did not provide adequate post-abortion care, forcing her to self-manage
the medical complications.
Procedural History
1. Application to the ECHR
◦ On 15 July 2005, A, B, and C led an application against Ireland before the
European Court of Human Rights (ECHR), claiming violations of Articles 3, 8,
and 14 of the European Convention on Human Rights.
2. Third-Party Interventions
◦ Multiple organizations, including pro-life and pro-choice advocacy groups,
submitted arguments.
◦ The Lithuanian government intervened due to Applicant C’s nationality.
3. Grand Chamber Hearing
◦ On 7 July 2009, the Third Section of the ECHR relinquished the case to the
Grand Chamber, given its legal and moral complexity.
◦ A public hearing took place on 9 December 2009 in Strasbourg.
Arguments Presented
Applicants (A, B, and C)
• Article 3 (Prohibition of Inhuman and Degrading Treatment)
ff
ff
ff
ff
fi
fi
fi
ff
ff
ff
 ◦ The restriction on abortion caused physical and mental su ering, forcing them to
travel abroad in secrecy.
◦ Irish law ignored the well-being of pregnant women, particularly in cases of
health risks and social hardship.
• Article 8 (Right to Private and Family Life)
◦ The criminalization of abortion interfered with women’s personal autonomy and
bodily integrity.
◦ Women were forced to leave their country to obtain a legal medical service.
◦ Irish law created unnecessary distress by restricting access to medical
counseling.
• Article 14 (Prohibition of Discrimination)
◦ Irish abortion law discriminated against women, particularly poor women who
could not a ord to travel.
◦ Women who needed an abortion due to health risks (but not life-threatening
conditions) were unfairly excluded from accessing legal abortion in Ireland.
Irish Government’s Defense
• Ireland’s constitutional protections for the “unborn” were the result of a democratic
referendum (1983).
• Another referendum in 1992 resulted in the Thirteenth and Fourteenth Amendments
to the Constitution, which lifted a previously existing ban on travelling abroad for
abortion and allowed information about lawfully available abortions abroad to be
disseminated in Ireland
• The right to life of the unborn is protected equally to the right of the mother.
• There was no legal obligation under the ECHR to allow abortion on demand.
• Alternative options existed, including:
◦ Travel to another country for abortion.
◦ Adoption as an alternative to termination.
• Irish law did not prevent post-abortion medical care, and there was no evidence that
doctors discriminated against women who had abortions abroad.
Judgment of the Court
On 16 December 2010, the ECHR Grand Chamber issued its ruling, nding:
1. No Violation of Article 3 (Inhuman and Degrading Treatment)
◦ The Court ruled that Ireland’s abortion law did not amount to inhuman or
degrading treatment.
◦ The applicants were not forced to carry pregnancies to term against their will.
◦ The hardship of traveling abroad for an abortion was not su cient to establish
a violation.
2. No Violation of Article 8 (Right to Private Life) for A and B
◦ The Court acknowledged that the restriction interfered with their private life but
found that:
▪ Ireland had a wide margin of appreciation in protecting the right to life of
the unborn.
- Although there was a consensus amongst a substantial majority of the
Contracting States towards allowing abortion on broader grounds than
those accorded under Irish law, that consensus did not decisively narrow
the broad margin of appreciation of the State.
- Since there was no European consensus on the scienti c and legal
de nition of the beginning of life and since the rights claimed on behalf of
the foetus and those of the mother were inextricably interconnected, the
margin of appreciation accorded to the State as regards how it protected
the unborn necessarily translated into a margin of appreciation as to how it
balanced the con icting rights of the mother
▪ The ability to travel for an abortion provided a su cient legal
alternative.
▪ The interference was in accordance with the law and pursued the legitimate aim of
the protection of the profound moral values of a majority of the Irish people as
re ected in the 1983 referendum
fl
fi
ff
fl
ffi
fi
ff
ffi
fi
 3. Violation of Article 8 (Right to Private Life) for C
◦ The Court ruled in favor of Applicant C, nding that:
▪ She had a right to a legal abortion in Ireland due to the risk to her life.
▪ Ireland failed to provide clear legal guidelines on accessing an abortion
when a woman’s life was at risk.
▪ The legal uncertainty forced C to leave the country unnecessarily,
violating her right to private life.
▪ Article 41: EUR 15,000 to the third applicant in respect of non-pecuniary damage.
4. No Violation of Article 14 (Discrimination)
◦ The Court rejected the argument that Ireland’s abortion law discriminated
against women.
Final Decision:
• Applicant A & B: No violation of human rights.
• Applicant C: Violation of Article 8 (Right to Private Life).
• Ireland was ordered to revise its legal framework to provide clarity on when abortion
is permitted to save the life of a woman.
Impact and Signi cance
Legal Precedents Set by the Case:
• Abortion is a matter of national discretion (“margin of appreciation”):
◦ The ECHR rea rmed that States can regulate abortion laws according to
national values.
• Governments must provide clear legal frameworks:
◦ Ireland was obligated to provide a clear legal mechanism for accessing abortion
when a woman’s life is at risk.
Broader Implications:
• This ruling pressured Ireland to reform its abortion laws.
• Led to the Protection of Life During Pregnancy Act (2013), which clari ed the legal basis
for life-saving abortions in Ireland.
• Helped shape future abortion law discussions in Europe.
Conclusion
• The ECHR ruled in favor of Ireland’s restrictive abortion laws, except in cases where a
woman’s life was at risk. This case played a key role in Ireland’s abortion law reforms and
remains a landmark ruling in European human rights law.
Session 7: ARTICLE 3 AND THE PROHIBITION OF TORTURE, INHUMAN, OR DEGRADING
TREATMENT OR PUNISHMENT
Article 3: Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
READINGS:
Case: Kafkaris v. Cyprus (2008)
Article 3: Prohibition of torture
Article 5: Right to Liberty and Security
Article 7: No punishment without law
Facts of the Case
Background
• The applicant, Mr. Panayiotis Agapiou Panayi (alias Kafkaris), a Cypriot national, was
convicted of premeditated murder in 1989.
• He was sentenced to mandatory life imprisonment by the Limassol Assize Court for killing
a businessman and his two children by planting a car bomb in 1987.
• At the time of sentencing, life imprisonment was legally interpreted as a 20-year
sentence under prison regulations.
- the Prison (General) Regulations, as amended, stipulated that life prisoners were eligible
for remission of up to a quarter of their sentence. For that purpose, imprisonment for life
was de ned as meaning imprisonment for twenty years.
• However, a later ruling by the Cypriot Supreme Court clari ed that life imprisonment
means imprisonment for the remainder of the prisoner’s natural life.
fi
ffi
fi
fi
fi
fi
 • On arrival to prison - the applicant was also noti ed by the prison authorities that with good
behaviour he would qualify for release in 2002.
• Due to this legal shift, Kafkaris remained in prison beyond 20 years and was denied
release.
Procedural History
Domestic Proceedings in Cyprus
• 1989: Kafkaris was sentenced to mandatory life imprisonment.
• 1992: The Cypriot Supreme Court ruled that life imprisonment means imprisonment for
the rest of the convict's natural life.
• 2002: Kafkaris' scheduled release date (calculated as 20 years minus good behavior
deductions) was not honored due to the change in legal interpretation.
• 2004: Kafkaris led a habeas corpus application, arguing that his continued detention was
unlawful and arbitrary, but the Supreme Court of Cyprus rejected his appeal.
• 2004: He led an application with the ECHR, claiming that his continued imprisonment
violated his human rights under Articles 3, 5, and 7.
Arguments Presented
Applicant (Kafkaris)
• Article 3 (Prohibition of Inhuman and Degrading Treatment):
◦ Being sentenced to life without a possibility of parole amounted to inhuman and
degrading treatment.
◦ He su ered severe mental distress due to the uncertainty surrounding his
sentence.
◦ His prison conditions were poor, which exacerbated his su ering.
• Article 5 (Right to Liberty and Security):
◦ His continued detention beyond 20 years was unlawful, as the law at the time of
his sentencing interpreted life imprisonment as 20 years.
◦ The change in interpretation violated his legitimate expectation of release.
• Article 7 (No Punishment Without Law):
◦ He was misled by Cypriot law into believing that his sentence was limited to 20
years.
◦ The retroactive change in the legal meaning of "life imprisonment" e ectively
increased his sentence after conviction, violating the principle of legality.
Government of Cyprus
• Article 3 (Prohibition of Inhuman Treatment)
◦ Life imprisonment is a legitimate penalty for premeditated murder.
◦ Cyprus allows presidential clemency as a form of review for life sentences,
meaning that Kafkaris was not completely denied hope.
◦ His prison conditions were adequate and did not amount to inhuman or
degrading treatment.
• Article 5 (Right to Liberty and Security)
◦ The applicant’s detention was based on a lawful court decision and was not
arbitrary.
◦ The Supreme Court's ruling that life imprisonment meant "for the remainder of
natural life" was a legal interpretation, not a retrospective increase in
punishment.
• Article 7 (No Punishment Without Law)
◦ There was no retroactive increase in his punishment. The law already provided
for life imprisonment, and its meaning was clari ed by the Supreme Court.
◦ The regulations interpreting life as 20 years were secondary laws, which could
not override the Criminal Code’s provision for life sentences.
Judgment of the Court
On 12 February 2008, the ECHR Grand Chamber issued its ruling, nding:
1. No Violation of Article 3 (Prohibition of Inhuman and Degrading Treatment)
• The mere fact of a life sentence without parole does not automatically constitute
inhuman or degrading treatment.
ff
fi
fi
fi
fi
ff
fi
ff
 • However, a lack of a proper review mechanism for life sentences could, in some cases,
violate Article 3.
• Since the President of Cyprus had the power to grant clemency, the applicant was not
completely deprived of hope.
2. No Violation of Article 5 (Right to Liberty and Security)
• The applicant’s detention was lawful because he was serving a life sentence imposed
by a court.
• The Supreme Court’s ruling that life means natural life did not render his detention
arbitrary.
3. Violation of Article 7 (No Punishment Without Law)
• The Court found that the legal uncertainty surrounding his sentence violated Article 7.
• At the time of sentencing, Cypriot prison regulations indicated that life meant 20 years,
creating a reasonable expectation of release.
• The subsequent judicial ruling changed the interpretation of his sentence, meaning
that he e ectively received a harsher punishment after conviction.
• This violated the principle of legality, which prohibits the retroactive application of
criminal penalties.
Final Decision:
• Article 3: No violation.
• Article 5: No violation.
• Article 7: Violation found.
• Compensation - Article 41 – Finding of a violation constituted in itself su cient just
satisfaction for any non-pecuniary damage.
• Cyprus a wide margin of appreciation in its interpretation and enforcement of life
imprisonment laws, particularly regarding Articles 3 and 5, but took a stricter approach
under Article 7.
Impact and Signi cance
Legal Precedents Set by the Case:
• Clari ed the legality of life sentences without parole under Article 3, emphasizing that:
◦ A life sentence is not inhuman per se, but there must be some form of review.
• Expanded protections under Article 7 (No Punishment Without Law):
◦ If an individual is sentenced under unclear or misleading legal conditions, it
violates their right not to be subjected to retroactive penalties.
• Highlighted the importance of legal certainty:
◦ A lack of clarity in sentencing laws can violate human rights.
Broader Implications:
• The ruling in uenced penal law in Cyprus and other countries, prompting reforms in life
sentencing policies.
• Strengthened the requirement for transparency in sentencing laws to avoid violating
Article 7 of the ECHR.
Conclusion
• The ECHR ruled that Cyprus violated Article 7 of the European Convention on Human
Rights by failing to provide legal certainty regarding life sentences. However, the Court
found no violation of Articles 3 or 5, as the applicant’s detention was lawful and he was
not subjected to inhuman treatment.
• This case remains a landmark decision on life imprisonment, the principle of legality, and
the need for sentencing clarity in Europe.
Case: Vinter and Others v. The United Kingdom (2013)
Facts of the Case
Background
• The case involved three British applicants: Douglas Gary Vinter, Jeremy Neville Bamber,
and Peter Howard Moore, all of whom were convicted of multiple murders and sentenced
to whole-life orders.
• The applicants argued that a life sentence with no possibility of review or parole
amounted to inhuman and degrading treatment, violating Article 3 of the European
Convention on Human Rights.
fi
ff
fl
fi
ffi
 Circumstances of Each Applicant
1. Douglas Gary Vinter
• Convicted of murdering his wife in 2008 after previously serving a life sentence for
another murder (1996).
• The trial judge imposed a whole-life order, concluding that his crimes fell into the
category of "exceptionally serious o enses."
• The Court of Appeal upheld the sentence.
2. Jeremy Neville Bamber
• Convicted in 1986 for murdering his adoptive parents, sister, and her two young
children.
• His trial judge recommended a minimum sentence of 25 years, but the Home Secretary
later imposed a whole-life order.
• The UK courts reviewed his case but rea rmed the whole-life order.
3. Peter Howard Moore
• Convicted in 1996 for murdering four men in sexually motivated attacks.
• The trial judge imposed a whole-life order, stating that he should never be released.
• His appeal was dismissed.
Procedural History
1. Applications to the ECHR
◦ On 11 December 2009, 17 December 2009, and 6 January 2010, the three
applicants led complaints before the European Court of Human Rights (ECHR).
◦ They claimed that whole-life orders violated Article 3 (Prohibition of Inhuman or
Degrading Treatment).
2. Chamber Judgment (17 January 2012)
◦ A seven-judge Chamber of the Fourth Section of the ECHR ruled, by four votes
to three, that there was no violation of Article 3.
◦ The Chamber found that whole-life sentences did not violate human rights as
long as a prisoner could theoretically be granted compassionate release.
3. Grand Chamber Review (9 July 2013)
◦ The applicants appealed to the Grand Chamber.
◦ A public hearing was held on 28 November 2012.
◦ The Grand Chamber overruled the Chamber judgment, nding a violation of
Article 3.
Arguments Presented
Applicants (Vinter, Bamber, and Moore)
• Whole-life sentences violate Article 3 by subjecting prisoners to an irreducible
punishment, depriving them of all hope of release.
• The UK’s release mechanism (Secretary of State's discretion for compassionate
release) was not an e ective review, making their sentences de facto irreducible.
• European human rights principles emphasize rehabilitation—perpetual imprisonment
denies the possibility of reform.
• The case law of the ECHR (e.g., Kafkaris v. Cyprus, 2008) suggested that an
"irreducible" life sentence might be inhuman.
United Kingdom Government
• Whole-life sentences were necessary and proportionate for the most serious crimes.
• Public protection and retribution justi ed keeping the worst o enders in prison for life.
• The Crime (Sentences) Act 1997 gave the Secretary of State the power to release
prisoners on compassionate grounds, meaning that whole-life orders were not
technically irreducible.
• UK law already complied with ECHR standards because life prisoners could appeal
against their sentences.
Judgment of the Court
On 9 July 2013, the ECHR Grand Chamber ruled as follows:
1. Violation of Article 3 (Prohibition of Inhuman and Degrading Treatment)
• Whole-life orders violated Article 3 because they lacked any real possibility of review.
fi
ff
ff
fi
ffi
fi
ff
 • The Court emphasized that "hope of release" is a fundamental human right and that life
sentences must have a review mechanism.
• The UK’s discretionary compassionate release system was insu cient, as it was
based on political discretion (Secretary of State) rather than an independent judicial
process.
• A life prisoner must have some possibility of release, even if unlikely, to align with
evolving European human rights standards.
• The Court emphasized:
- Prisoners must have a prospect of release and a review mechanism.
- Continued detention must be justi ed by penological reasons (e.g., rehabilitation,
deterrence, public protection).
- Denying any opportunity for review contradicts human dignity and international standards.
- A review should occur no later than 25 years after sentencing, with periodic reviews
hereafter.
2. No Immediate Release Required
• The judgment did not require the immediate release of the applicants.
• The UK was given an obligation to introduce a mechanism for reviewing whole-life
sentences within a reasonable timeframe.
Final Decision:
• Violation of Article 3 found.
• The UK was ordered to introduce a review mechanism but not required to release the
applicants.
Impact and Signi cance
Legal Precedents Set by the Case:
• Whole-life sentences must have a review mechanism:
◦ A system must exist where a prisoner can apply for release after a certain
period.
• Compassionate release is not enough:
◦ A politically controlled review (by the Secretary of State) is not su cient; a
judicial or independent review is required.
• "Hope of release" is a fundamental principle of human dignity:
◦ Even the worst criminals must have some legal avenue for potential release.
◦ The ECHR granted the UK a narrow margin of appreciation regarding whole-life
orders (life sentences without parole)
Impact on UK Law:
• This judgment pressured the UK government to reform its life sentence policies.
• In 2014, the UK Court of Appeal ruled that whole-life orders remain lawful, but clari ed
that prisoners could challenge them if they became disproportionate over time.
• The UK maintained that judicial discretion in sentencing was still valid, but adjustments
were made to allow for review in exceptional cases.
Broader Implications:
• Strengthened European standards on life imprisonment and rehabilitation.
• In uenced sentencing laws across Europe, requiring states to ensure review
mechanisms for life sentences.
• Reinforced the principle that punishment should include the potential for
rehabilitation.
Conclusion
• The ECHR ruled that the UK’s whole-life orders violated Article 3 because they o ered
no real prospect of release or sentence review. This case set a landmark precedent,
reinforcing the principle that life sentences must always allow for some form of review in
order to respect human dignity.
• The ruling led to legal adjustments in the UK and shaped European human rights law on
life imprisonment.
Judge Power-Forde - Right to Hope:
• Article 3 encompasses what might be described as "the right to hope". It goes no further
than that. The judgment recognizes, implicitly, that hope is an important and constitutive
fl
fi
fi
ffi
ffi
ff
fi
 aspect of the human person. Those who commit the most abhorrent and egregious of acts
and who in ict untold su ering upon others, nevertheless retain their fundamental humanity
and carry within themselves the capacity to change. Long and deserved though their prison
sentences may be, they retain the right to hope that, someday, they may have atoned for the
wrongs which they have committed. They ought not to be deprived entirely of such hope. To
deny them the experience of hope would be to deny a fundamental aspect of their humanity
and to do that would be degrading»
Session 8: ARTICLE 3 AND THE PROHIBITION OF TORTURE, INHUMAN, OR DEGRADING
TREATMENT OR PUNISHMENT (CONT.)
READINGS:
Case: Murray v. the Netherlands (2016)
Legal Issue: Whether the imposition of a whole-life sentence on a mentally impaired prisoner
without the possibility of rehabilitation violated Article 3 (Prohibition of Inhuman and Degrading
Treatment) of the European Convention on Human Rights (ECHR).
Facts of the Case
Background
• Applicant: Mr. James Clifton Murray, a Dutch national born in 1953 in Aruba.
• Crime: Convicted of murdering a six-year-old girl in Curaçao in 1979. The murder was
an act of revenge against the child’s aunt, who was Murray’s ex-girlfriend.
• Sentence: Initially sentenced to 20 years in prison, but upon appeal, the Joint Court of
Justice of the Netherlands Antilles increased the sentence to life imprisonment in 1980.
• Mental Health Concerns: Murray had serious mental health issues, including antisocial
personality disorder and cognitive limitations. However, the court did not impose a
psychiatric treatment order due to lack of facilities in Curaçao.
Procedural History
Domestic Proceedings in the Netherlands
• 1979: Convicted of murder and sentenced to life imprisonment.
• 1980: His appeal was rejected, and life imprisonment was con rmed.
• 2012: After 33 years in prison, Murray requested a review of his life sentence under new
laws in Curaçao, but the court denied release, citing high recidivism risk and lack of
rehabilitation.
• 2013: Diagnosed with terminal cancer, he was granted a pardon and released.
• 2014: Murray passed away on 26 November 2014, but his family continued the case at
the ECHR.
Application to the ECHR
• 2010: Murray applied to the ECHR, arguing that his life sentence with no real prospect
of release or rehabilitation violated Article 3 (Prohibition of Inhuman and Degrading
Treatment).
• 2013: The Chamber ruled there was no violation of Article 3, but the case was referred to
the Grand Chamber.
• 2016: The Grand Chamber ruled in favor of Murray, nding a violation of Article 3.
Arguments Presented
Applicant (Murray & His Representatives)
• His life sentence was de facto irreducible because the pardon system was
discretionary and not based on clear legal criteria.
• He was mentally impaired but never received proper psychological or psychiatric
treatment.
• The state failed to provide rehabilitation, violating human dignity and Article 3.
• The review of his sentence in 2012 was awed, as it focused only on recidivism risk, not
on whether he had a real chance of reform.
Government of the Netherlands
• Murray’s life sentence was lawful, and there was a possibility of release through the
pardon system.
• Periodic sentence reviews were introduced in 2011, meaning Murray had access to a
fair review process.
fl
ff
fl
fi
fi
 • His mental health issues did not render his imprisonment inhuman, and he had
access to medical care.
Judgment of the Court
On 26 April 2016, the ECHR Grand Chamber issued its ruling, nding:
1. Violation of Article 3 (Prohibition of Inhuman and Degrading Treatment)
• Life imprisonment without a real possibility of release is inhuman:
◦ The Netherlands failed to provide an adequate mechanism for reviewing
whole-life sentences.
◦ The pardon system was unreliable and did not meet human rights standards.
• Rehabilitation is a fundamental human right:
◦ The state had a positive obligation to o er rehabilitation programs.
◦ Murray was mentally impaired but never received adequate treatment during
his 33 years in prison.
• Sentence reviews must be meaningful:
◦ The 2012 review was inadequate because it focused only on recidivism risk
rather than assessing whether Murray had changed.
◦ No meaningful steps were taken to help him reintegrate into society.
2. No Immediate Release Ordered
• The ECHR did not require the Netherlands to release Murray at the time of the judgment.
• However, the ruling obliged the Netherlands to reform its whole-life sentence system,
ensuring real opportunities for release and rehabilitation.
Final Decision:
• Violation of Article 3 found.
• The Netherlands was ordered to reform its life sentence review system.
Impact and Signi cance
Legal Precedents Set by the Case
• Whole-life sentences must have a meaningful review process:
◦ Sentence reviews must consider rehabilitation possibilities, not just risk
assessments.
• Mentally impaired prisoners require proper care:
◦ States have a duty to ensure psychiatric treatment for life prisoners with
mental disabilities.
• The pardon system is not an adequate review mechanism:
◦ The Netherlands had to establish a formal sentence review system instead of
relying on political discretion for pardons.
Impact on Dutch Law
• The ruling forced the Netherlands to reform its life sentencing laws.
• It reinforced the right to hope, ensuring that prisoners have access to rehabilitation
and fair reviews.
Broader Implications
• Strengthened human rights protections for life prisoners across Europe.
• Emphasized the importance of rehabilitation, even for the most serious crimes.
• In uenced sentencing policies in multiple jurisdictions, ensuring that whole-life
sentences remain subject to periodic review.
Conclusion
• The ECHR ruled that the Netherlands violated Article 3 by failing to provide a real
possibility of release and rehabilitation for Murray, a mentally impaired life prisoner. This
case set a landmark precedent for the treatment of life prisoners with mental health
issues and reinforced the principle that all life sentences must be subject to review.
Margin of Appreciation – Did the Netherlands Have a Wide or Narrow Margin?
The Netherlands had a narrow margin of appreciation.
Why?
• Fundamental human dignity issue:
◦ The ECHR ruled that hope of release is essential to human dignity, limiting state
discretion.
• European consensus on life sentences:
fl
fi
ff
fi
 ◦ Most European countries have review mechanisms for life sentences.
• Failure to provide adequate treatment:
◦ Murray was mentally impaired, and the state had a duty to o er psychiatric
care, reducing discretion.
• Conclusion:
- The Netherlands was not given broad discretion because the case involved human
dignity, mental health rights, and rehabilitation obligations under Article 3.
Case: Hutchinson v. The United Kingdom (2017)
Legal Issue: Whether the imposition of a whole-life order (life imprisonment without the
possibility of parole) in the United Kingdom violated Article 3 (Prohibition of Inhuman and
Degrading Treatment) of the European Convention on Human Rights (ECHR).
Facts of the Case
Background
• Applicant: Arthur Hutchinson, a British national born in 1941.
• Crime: In October 1983, Hutchinson broke into a family home, murdered three members
of the family, and raped their 18-year-old daughter.
• Conviction: In 1984, Hutchinson was convicted of:
◦ Three counts of murder,
◦ Aggravated burglary, and
◦ Rape.
• Sentence: The trial judge initially recommended a minimum term of 18 years but later
indicated that this was a "genuinely life" case.
• Whole-Life Order: In 1988, the UK Secretary of State for the Home O ce imposed a
whole-life order, meaning Hutchinson would never be eligible for release.
Procedural History
Domestic Proceedings in the UK
• 2003: The Criminal Justice Act 2003 transferred sentencing powers to the courts,
allowing judges to impose whole-life orders.
• 2008: Hutchinson applied to the UK High Court for a review of his sentence, arguing that
the whole-life order was disproportionate. The court dismissed his application.
• 2013: The UK Court of Appeal upheld the legality of whole-life orders, nding that
there was a possibility of release under exceptional circumstances.
Application to the ECHR
• 2008: Hutchinson led an application with the European Court of Human Rights
(ECHR), arguing that:
◦ His whole-life order violated Article 3 of the ECHR.
◦ The UK’s compassionate release system was too restrictive to be a real
prospect of release.
• 2015 (Fourth Section Judgment): The ECHR initially ruled in his favor, nding a
violation of Article 3.
• 2017 (Grand Chamber Review): The UK appealed the ruling, and the Grand Chamber
overturned the violation ruling.
Arguments Presented
Applicant (Hutchinson)
• Whole-life sentences violate Article 3 because they amount to inhuman and degrading
treatment if there is no realistic prospect of release.
• The UK’s compassionate release mechanism (Section 30 of the Crime (Sentences)
Act 1997) was too restrictive, as it only allowed release in cases of terminal illness or
severe incapacitation.
• His case was indistinguishable from Vinter and Others v. the UK (2013), where the
ECHR had ruled against whole-life orders due to the lack of a clear release
mechanism.
United Kingdom Government
• Whole-life sentences were necessary and proportionate for the most serious crimes.
• Compassionate release was a valid and su cient review mechanism, meaning the
sentence was not truly irreducible.
fi
ffi
ff
ffi
fi
fi
 •The UK’s legal framework had evolved since Vinter (2013), with domestic courts
con rming that Section 30 must be interpreted in line with human rights standards.
• The Court of Appeal ruling in R v. McLoughlin (2014) clari ed that the Secretary of
State was required to consider Article 3 when reviewing release applications.
Judgment of the Court
On 17 January 2017, the ECHR Grand Chamber issued its ruling, nding:
1. No Violation of Article 3 (Prohibition of Inhuman and Degrading Treatment)
• Whole-life orders in the UK do not violate human rights because:
1. The Secretary of State has a duty to consider human rights law when reviewing
compassionate release applications.
2. There is a legal avenue for prisoners to challenge their continued detention if
their circumstances change.
3. The Court of Appeal had clari ed the UK’s legal position in 2014, making the
system su ciently certain.
• The UK’s system was now compliant with Article 3, unlike in Vinter and Others (2013),
where the legal framework lacked clarity.
2. The UK’s Review System Is Su ciently Clear and Certain
• The Court accepted the UK government’s position that the Secretary of State’s
discretion to release whole-life prisoners under Section 30 was a valid review
mechanism.
• Unlike in Vinter, where the lack of certainty about release options led to a violation of
Article 3, the clari cations provided by UK courts in 2014 were su cient.
Final Decision:
• No violation of Article 3 found.
• Hutchinson’s whole-life order remained valid under UK law.
Impact and Signi cance
Legal Precedents Set by the Case
• Whole-life sentences are compatible with Article 3 if a clear and meaningful review
mechanism exists.
• Compassionate release (even if rarely granted) is su cient to make a whole-life
sentence legally reducible.
• Vinter and Others (2013) was distinguished, showing that legal developments can shift
the interpretation of human rights compliance.
Impact on UK Law
• The ruling con rmed the validity of whole-life orders in the UK.
• It ensured that the UK must continue to apply a human rights-based approach to
release reviews.
• Prisoners now have a legal path to argue for release under exceptional
circumstances, though such cases remain rare.
Broader Implications
• This ruling in uenced other European cases on life imprisonment, reinforcing the
importance of review mechanisms.
• Other countries with strict life sentencing laws (e.g., Poland, Hungary, and Bulgaria)
referenced this case when defending their penal policies.
Conclusion
• The ECHR ruled that the UK’s whole-life orders do not violate Article 3, as there is a
valid, albeit limited, mechanism for reviewing life sentences. The decision reversed the
Court’s previous ruling in Vinter and Others (2013), marking a key moment in the legal
debate on irreducible life sentences in Europe.
Margin of Appreciation – Did the UK Have a Wide or Narrow Margin?
The UK had a relatively wide margin of appreciation.
Why?
• National discretion in criminal justice:
◦ The ECHR rea rmed that states have broad discretion in setting sentencing
laws, as long as they comply with human rights standards.
• Legal clarity since Vinter (2013):
fi
ffi
fl
ffi
fi
fi
fi
fi
ffi
ffi
fi
fi
ffi
 ◦ Unlike in Vinter, where uncertainty about release options led to a violation of
Article 3, the UK’s legal position had since been clari ed by the Court of Appeal
(2014).
• Compassionate release as a valid review mechanism:
◦ The Court accepted that review mechanisms do not have to guarantee release,
only that they provide a genuine opportunity for reconsideration.
◦ Conclusion: The ECHR deferred to the UK’s legal framework, granting it a wide margin
of appreciation in deciding how to handle whole-life orders. This marked a shift from
Vinter, reinforcing the principle that states can impose life sentences if they allow for
some possibility of release.
◦ NOTE: Not much changed legally with compassionate grounds of the UK law in between
Vinter case and this case, mainly the clearness of the process (the only thing they changed
is that the Secretary of State has to abide by the convention of human rights when looking
over reviews)
Dissenting opinion
• Judge Pinto de Albuquerque —> thought that there was a violation (inadequate parole
framework, lack of clear guidelines, concerns regarding political interference)
- Was there a big change in overall views between Vinter and Hutchison case
Session 9: ARTICLE 5 AND THE RIGHTS TO LIBERTY AND SECURITY
Article 5:
- 1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law:
• a the lawful detention of a person after conviction by a competent court;
• b the lawful arrest or detention of a person for non-compliance with the lawful order of a
court or in order to secure the ful lment of any obligation prescribed by law;
• c the lawful arrest or detention of a person e ected for the purpose of bringing him before
the competent legal authority on reasonable suspicion of having committed an o ence or
when it is reasonably considered necessary to prevent his committing an o ence or eeing
after having done so;
• d the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
• e the lawful detention of persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants;
• f the lawful arrest or detention of a person to prevent his e ecting an unauthorised entry into
the country or of a person against whom action is being taken with a view to deportation or
extradition.
- 2 Everyone who is arrested shall be informed promptly, in a language which he understands, of
the reasons for his arrest and of any charge against him.
- 3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this
article shall be brought promptly before a judge or other o cer authorised by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.
- 4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.
- 5 Everyone who has been the victim of arrest or detention in contravention of the provisions of
this article shall have an enforceable right to compensation.
READINGS:
Case: Engel and Others v. the Netherlands (1976)
Legal Issue: Whether the disciplinary penalties imposed on Dutch conscript soldiers violated
Articles 5 (Right to Liberty and Security), 6 (Right to a Fair Trial), 10 (Freedom of Expression),
11 (Freedom of Assembly and Association), and 14 (Prohibition of Discrimination) of the
European Convention on Human Rights (ECHR).
Facts of the Case
Background
• The ve applicants were conscript (the compulsory enlistment in a national service)
soldiers in the Netherlands Armed Forces.
fi
fi
ff
fi
ffi
ff
ff
ff
fl
 • They were subjected to various disciplinary penalties for alleged military o enses,
including:
◦ Unauthorized absences, disobedience, and insubordination.
◦ Participation in the publication and distribution of critical materials about the
army.
◦ 1. Unauthorized Absence (AWOL - Absence Without Leave)
◦ Some of the applicants were punished for leaving their posts without
permission.
◦ In the military, unauthorized absence is considered a serious breach
of discipline.
◦ 2. Insubordination & Disobedience
◦ Some soldiers failed to follow orders given by their superiors.
◦ Disobedience in a military context can disrupt operational
e ectiveness and is strictly regulated.
◦ 3. Participation in Publishing and Distributing Critical Materials
◦ The soldiers published and distributed materials criticizing the Dutch
Armed Forces.
◦ Their writings reportedly challenged military discipline and hierarchy.
◦ The authorities viewed this as a potential threat to military order.
◦ 4. Encouraging Other Soldiers to Join a Conscripts’ Organization
◦ Some of the applicants were involved in an informal soldiers'
association advocating for better conditions and rights for
conscripts.
◦ The military discouraged such activities, seeing them as a risk to
cohesion and order.
◦ 5. Other Minor Disciplinary Infractions
◦ Some applicants were punished for failing to comply with minor
military regulations.
◦ This included actions such as failure to report on time, refusal to
wear proper military attire, and disrespecting superior o cers.
• The penalties included:
◦ Light Arrest (restriction to barracks),
◦ Aggravated Arrest (restriction with additional con nement),
◦ Strict Arrest (complete isolation in cells),
◦ Committal to a Disciplinary Unit (long-term detention in a strict regime).
Military Disciplinary System in the Netherlands
• Under the Military Discipline Act (1903), commanding o cers could impose non-judicial
punishments on soldiers for minor disciplinary infractions.
• A ected soldiers could appeal to a "complaints o cer" and, as a last resort, to the
Supreme Military Court (Hoog Militair Gerechtshof).
Procedural History
Domestic Proceedings in the Netherlands
• The applicants challenged their penalties before the military hierarchy, but their
complaints were mostly rejected or marginally reduced.
• They then led applications before the European Commission of Human Rights,
arguing that their disciplinary punishments violated the ECHR.
Application to the ECHR
• 1971-1972: The applicants lodged complaints before the European Commission of
Human Rights.
• 1974: The Commission found violations of Article 5 (Right to Liberty and Security) and
referred the case to the Court.
• 1976: The ECHR Grand Chamber issued its judgment, ruling on Articles 5, 6, 10, 11,
and 14.
Arguments Presented
Applicants' Arguments
• Their punishments amounted to unlawful deprivation of liberty, violating Article 5.
ff
ff
fi
fi
ffi
ffi
ffi
ff
 • The military disciplinary proceedings lacked proper judicial guarantees, violating Article
6.
• Their right to freedom of expression (Article 10) was violated when they were punished
for publishing and distributing critical writings.
• Their right to freedom of assembly (Article 11) was violated due to disciplinary actions
against their involvement in a conscript association.
• They were discriminated against (Article 14) compared to civilian defendants who had
access to better procedural safeguards.
Dutch Government's Arguments
• The disciplinary penalties were necessary to maintain military discipline and did not
amount to deprivation of liberty under Article 5.
• Military disciplinary proceedings complied with fair trial guarantees because appeals
to the Supreme Military Court were available.
• Restrictions on expression and association were necessary for maintaining military
order.
• The applicants were treated fairly in comparison to other servicemen, meaning there
was no discrimination under Article 14.
Judgment of the Court
1. Article 5 (Right to Liberty and Security) – Partial Violation Found
• Light Arrest and Aggravated Arrest did not constitute a deprivation of liberty:
◦ The Court ruled that restrictions within military barracks were a normal part of
military discipline and did not amount to a violation of Article 5.
• Strict Arrest and Committal to a Disciplinary Unit amounted to deprivation of liberty:
◦ The applicants were physically locked up and excluded from military duties,
which constituted deprivation of liberty under Article 5.
◦ However, since the Supreme Military Court had reviewed and con rmed the
sentences, the Court found no violation of Article 5(1).
• Delays in reviewing some of the applicants’ cases violated Article 5(4):
◦ The Court held that appeals were not handled speedily, constituting a violation
of Article 5(4).
2. Article 6 (Right to a Fair Trial) – Not Applicable
• The Court ruled that military disciplinary cases were not “criminal” in nature, so Article
6 protections did not apply.
3. Article 10 (Freedom of Expression) – No Violation Found
• The applicants were punished for publishing writings critical of the military.
• However, the Court ruled that the restrictions were justi ed in maintaining military
discipline and fell within the limitations allowed under Article 10(2).
4. Article 11 (Freedom of Assembly and Association) – No Violation Found
• The applicants argued that their association with a military conscripts’ organization led
to retaliation.
• The Court found that military discipline justi ed limitations on soldiers' associational
rights and ruled no violation of Article 11.
5. Article 14 (Prohibition of Discrimination) – No Violation Found
• The applicants claimed that military personnel were treated unfairly compared to
civilians.
• The Court found no unjusti ed di erence in treatment.
Final Decision:
• Violation of Article 5(4) (delayed judicial review of some punishments).
• No violation of Articles 5(1), 6, 10, 11, or 14.
Impact and Signi cance
Legal Precedents Set by the Case
• Clari ed the scope of “deprivation of liberty” under Article 5 in a military context.
• Con rmed that disciplinary restrictions in the military do not necessarily amount to
deprivation of liberty.
• Rea rmed that military discipline can justify restrictions on fundamental freedoms.
Impact on Dutch Law
ffi
fi
fi
fi
fi
ff
fi
fi
fi
 • The case led to reforms in Dutch military disciplinary law:
◦ Abolition of strict arrest and committal to a disciplinary unit in 1974.
◦ More robust legal safeguards for military personnel.
Broader Implications
• Strengthened the understanding of fair trial rights in military justice.
• Set clearer guidelines on when disciplinary con nement becomes “deprivation of
liberty” under Article 5.
• In uenced military law reforms across Europe, ensuring greater human rights
protections for military personnel.
Conclusion
• The ECHR ruled that the Netherlands violated Article 5(4) (Right to Speedy Review) but
upheld the military disciplinary system in all other respects. The case established
important principles on the balance between military discipline and human rights and
in uenced military law reforms in the Netherlands and beyond.
Margin of Appreciation – Did the Netherlands Have a Wide or Narrow Margin?
The Netherlands had a relatively wide margin of appreciation.
Why?
• Military discipline is a matter of state sovereignty, allowing broad discretion.
• The Court accepted that maintaining order in the armed forces justi ed restrictions
on freedoms.
• The ruling deferred to the Dutch government’s approach, except where judicial review
delays were unreasonable.
• Conclusion: The Court granted the Netherlands a wide margin of appreciation in
managing military discipline, but required timely judicial review of punishments under
Article 5(4).
Case: El-Masri v. The Former Yugoslav Republic of Macedonia (2012)
Legal Issue: Whether the arrest, detention, and transfer of Khaled El-Masri by Macedonian
authorities in cooperation with the CIA amounted to violations of Articles 3, 5, 8, and 13 of
the European Convention on Human Rights (ECHR).
Facts of the Case
Background
• Applicant: Khaled El-Masri, a German national of Lebanese origin born in 1963.
• Incident Date: 31 December 2003 – 29 May 2004.
• Location: Macedonia, Afghanistan, and Albania.
• Key Issue: Extraordinary rendition—El-Masri was abducted, detained, and forcibly
transferred to a CIA black site in Afghanistan where he was subjected to inhuman and
degrading treatment.
• Rendition refers to the covert transfer of individuals from one country to another
without legal extradition procedures.
• Extraordinary rendition is a more extreme form, where the CIA captures, detains, and
transfers individuals without judicial oversight, often sending them to countries
where they may face torture
Events Leading to the Case
1. Arrest at Macedonian Border (31 December 2003)
• El-Masri traveled by bus from Germany to Skopje, Macedonia.
• Macedonian border o cials suspected his passport was forged and detained him.
• He was taken to a hotel in Skopje and held incommunicado for 23 days, interrogated
about alleged links to terrorist groups. —> U.S. intelligence confused Khaled El-Masri with
another person who had a similar name and was suspected of having links to Al-Qaeda.
2. Transfer to CIA Rendition Team (23 January 2004)
• Macedonian authorities handed him over to CIA operatives at Skopje Airport.
• He was beaten, stripped, hooded, shackled, sodomized with a suppository, drugged,
and forced onto a plane.
3. Detention and Interrogation in Afghanistan (January – May 2004)
• Held at a secret CIA-run facility, known as "Salt Pit," near Kabul.
fl
fl
ffi
fi
fi
 • Repeatedly interrogated, abused, kept in solitary con nement, and denied access to
legal assistance.
• He went on hunger strikes and was force-fed through a nasal tube.
• U.S. authorities realized they had mistaken him for someone else, but he was still
detained for weeks after this discovery —> Instead of immediately releasing him, they
kept him detained for another two months to cover up their mistake
4. Release via Albania (28 May 2004)
• Without any formal acknowledgment, El-Masri was blindfolded, placed on a ight, and
abandoned in Albania.
• He was left in a remote rural area, eventually making his way to Germany, where he
reported the incident.
Procedural History
Domestic Proceedings in Macedonia
• Macedonian authorities denied any involvement in his abduction and refused to
investigate his claims.
• No prosecution or judicial review was conducted by Macedonia.
International Investigations
• Council of Europe (Marty Report 2006 & 2007) and European Parliament (Fava Inquiry
2007) con rmed El-Masri’s allegations.
• German authorities issued arrest warrants for 13 CIA agents but were unable to
prosecute due to lack of U.S. cooperation.
• U.S. courts dismissed El-Masri’s civil case, citing "state secrets" doctrine. (allows the
government to withhold information from discovery when disclosure would be inimical to
national security)
Application to the ECHR
• 20 July 2009: El-Masri lodged an application before the European Court of Human
Rights (ECHR).
• 2012: The Grand Chamber heard the case.
Arguments Presented
Applicant (El-Masri)
• His abduction, detention, and treatment constituted torture and inhuman treatment
(Article 3).
• His detention was arbitrary and unlawful (Article 5 – Right to Liberty and Security).
• His forced disappearance violated his right to privacy (Article 8).
• He had no e ective legal remedy in Macedonia (Article 13 – Right to an E ective
Remedy).
Government of Macedonia
• Denied any involvement in unlawful detention or transfer.
• Claimed that El-Masri entered and exited Macedonia legally.
• Argued that he was not detained or handed over to foreign authorities.
• Challenged the credibility of international reports linking Macedonia to CIA rendition
(state-sponsored kidnapping in another jurisdiction and transfer to a third state) ights.
• NOTE: CIA rendition, particularly extraordinary rendition, is widely regarded as illegal
under international law and many national legal systems. However, the U.S. government
has defended it as a national security tool, arguing that it is necessary for
counterterrorism operations.
Judgment of the Court
1. Violation of Article 3 (Prohibition of Torture and Inhuman Treatment)
• Substantive Violation:
◦ The Court ruled that El-Masri had been subjected to torture, inhuman, and
degrading treatment in Macedonia and during his CIA transfer.
◦ The Macedonian government’s actions facilitated his treatment at the hands of
the CIA.
• Procedural Violation:
◦ Macedonia failed to investigate his allegations.
◦ Authorities were complicit in covering up his detention and transfer.
fi
ff
fi
ff
fl
fl
 2. Violation of Article 5 (Right to Liberty and Security)
• El-Masri was arbitrarily detained in Macedonia and later in CIA custody without any legal
basis.
• The Court ruled that his detention lacked any legal justi cation and due process.
3. Violation of Article 8 (Right to Private and Family Life)
• His enforced disappearance and arbitrary detention constituted a grave violation of
his right to respect for private and family life.
4. Violation of Article 13 (Right to an E ective Remedy)
• Macedonia failed to provide any legal avenue for El-Masri to seek redress.
• No e ective investigation was conducted, violating Article 13.
Final Decision:
• Macedonia was found guilty of multiple human rights violations.
• Awarded El-Masri €60,000 in damages.
• The ruling reinforced the illegality of extraordinary renditions under European human
rights law.
Impact and Signi cance
Legal Precedents Set by the Case
• First time the ECHR held a state accountable for involvement in the CIA’s
extraordinary rendition program.
• Established that complicity in torture, even by allowing foreign agents to act on a
state’s soil, constitutes a violation of Article 3.
• Set stronger standards for investigating claims of enforced disappearances and
illegal detentions.
Impact on Macedonia
• Strengthened international pressure on Macedonia for human rights reforms.
• The case damaged Macedonia’s reputation, particularly within the Council of Europe
and EU accession talks.
Broader Implications
• In uenced cases involving secret detentions and CIA black sites in Europe.
• Encouraged greater scrutiny over national security practices that violate human
rights.
• Reinforced the absolute prohibition of torture under the ECHR.
Conclusion
• The ECHR ruled that Macedonia had actively participated in El-Masri’s unlawful
detention, torture, and rendition, violating Articles 3, 5, 8, and 13. This landmark judgment
exposed the CIA’s extraordinary rendition program and reinforced state responsibility in
counterterrorism operations.
Margin of Appreciation – Did Macedonia Have a Wide or Narrow Margin?
Macedonia had a very narrow margin of appreciation.
Why?
• Absolute prohibition of torture: There is no margin of appreciation for violations of
Article 3.
• Enforced disappearances are grave human rights violations with strict international
obligations.
• The Court applied strict scrutiny, given the severity of the human rights abuses.
Conclusion:
The Court gave Macedonia almost no discretion in this case. Torture, secret detentions, and
extraordinary renditions are absolutely prohibited under human rights law.
Session 10: ARTICLE 5 AND THE RIGHTS TO LIBERTY AND SECURITY (CONT.)
READINGS:
Case: James, Wells and Lee v. The United Kingdom (2012)
Legal Issue: Whether the detention of prisoners beyond their tari expiry due to the failure to
provide rehabilitative courses violated Article 5(1) and (4) (Right to Liberty and Security &
Right to a Speedy Review of Detention) of the European Convention on Human Rights
(ECHR).
fl
ff
fi
ff
fi
ff
 Facts of the Case
Background
• Applicants:
• 1. Brett James (Born 1985)
• Crime: Convicted of robbery with a knife.
• Sentence: Two-year minimum tari (minimum term) but was kept in prison
beyond that period due to lack of access to rehabilitation programs.
• Issue: Unable to complete required o ender behavior programs, meaning
he could not prove he was no longer a danger to society.
• 2. Nicholas Wells (Born 1983)
• Crime: Convicted of robbery with a weapon and assault.
• Sentence: One-year minimum tari but remained imprisoned inde nitely
because he was unable to complete rehabilitation courses.
• Issue: His parole was denied not because he was proven dangerous, but
because the system failed to provide him the necessary means to
demonstrate rehabilitation.
• 3. Je rey Lee (Born 1965)
• Crime: Convicted of wounding with intent to cause grievous bodily
harm (GBH).
• Sentence: Nineteen-month minimum tari , but like the others, he was
detained inde nitely.
• Issue: No access to rehabilitation programs, meaning he could not prove he
was safe for release.
• All three were sentenced to Indeterminate Sentences for Public Protection (IPP) under
Section 225 of the Criminal Justice Act 2003.
• IPP sentences are similar to life sentences, requiring Parole Board approval for release.
• Each applicant served their minimum term ("tari ") but remained detained inde nitely
due to their inability to complete rehabilitation programs.
• Their continued detention was due to systemic failures in the prison system that
prevented them from accessing the necessary rehabilitative courses to demonstrate that
they no longer posed a risk to the public.
Introduction of IPP Sentences (2005)
• IPP sentences were introduced under the Criminal Justice Act 2003.
• Sentences were imposed if the individual was convicted of a “serious o ence” and
deemed a risk for reo ending.
• Parole Board release was only possible after serving the minimum tari AND proving
that the risk had diminished.
• A large number of prisoners were given IPP sentences with short tari s (e.g., 2-3
years), overwhelming the prison system.
• Insu cient rehabilitative programs were available, leaving prisoners trapped in
inde nite detention.
Circumstances of the Applicants
• Each applicant had a short minimum term ("tari ") but could not access the required
rehabilitation programs to prove their reduced risk.
• Lack of resources meant they remained in prison long past their tari expiry.
• The applicants argued that their detention had become arbitrary and there was no
e ective review mechanism (Article 5).
Procedural History
Domestic Proceedings in the UK
• Judicial review proceedings were initiated by each applicant.
• The High Court ruled that their continued detention was unlawful due to the failure of
the Secretary of State to provide the necessary courses.
• However, the Court of Appeal overturned this decision, ruling that the detention was
lawful but acknowledged systemic failures.
• The House of Lords dismissed the appeals, nding no breach of Article 5 but criticized
the government’s failure to provide necessary rehabilitation.
Application to the ECHR
ff
fi
ffi
ff
fi
ff
ff
ff
ff
ff
fi
ff
ff
fi
ff
ff
ff
ff
fi
 • The applicants lodged a case with the ECHR on 7 May 2009 (James) and 27 October
2009 (Wells & Lee).
• The case was admitted and merged into a single judgment by the Fourth Section.
Arguments Presented
Applicants (James, Wells, and Lee)
• Their post-tari detention violated Article 5 § 1 (Right to Liberty) because:
◦ The purpose of IPP sentences was to protect the public, not to punish
inde nitely.
◦ Failure to provide rehabilitative courses prevented them from proving they
were no longer dangerous.
◦ Their detention became arbitrary (unrestrained and autocratic in the use of
authority) as it no longer served a legitimate public safety purpose.
• Article 5 § 4 (Right to a Speedy Review of Detention) was violated because:
◦ The Parole Board lacked meaningful information to assess whether they were
still dangerous.
◦ Their continued detention was not properly reviewed, making the process an
empty exercise.
UK Government
• The applicants were lawfully detained under UK law.
• The Parole Board had the nal decision on their release, and the government was not
responsible for delays.
• The government acknowledged problems in the system but argued that these did not
amount to a violation of Article 5.
• They contended that rehabilitation was not a right but an optional policy consideration.
Judgment of the Court
1. Violation of Article 5 § 1 (Unlawful Detention Beyond Tari )
The Court ruled that the UK violated Article 5 § 1.
• The applicants' continued detention was no longer justi ed once they had served their
minimum terms.
• The failure to provide rehabilitation programs resulted in arbitrary detention (in which
there has been no proper due process of law or order.)
• The UK government had created a system where prisoners were unable to
demonstrate their safety for release, making their detention unlawful.
2. No violation of Article 5 § 4 (Right to a Speedy Review of Detention)
The Court ruled that the UK did not violate Article 5 § 4.
• The Parole Board was still able to review their cases regularly, even if the lack of
rehabilitation programs made it di cult for them to prove they were no longer a risk.
• Article 5(4) requires that detainees have a judicial process to review the legality of their
detention, but it does not necessarily guarantee a successful outcome or immediate
release.
• The main issue was the state’s failure to provide rehabilitation programs, which the Court
addressed under Article 5(1), not Article 5(4).
Final Decision:
• The UK was found guilty of violating Article 5 § 1
• The Court awarded each applicant nancial compensation for the harm su ered due
to their unlawful detention. (awarded the rst applicant EUR 3,000, the second applicant
EUR 6,200 and the third applicant EUR 8,000)
Impact and Signi cance
Legal Precedents Set by the Case
• Con rmed that inde nite detention without proper rehabilitative opportunities is
unlawful under Article 5.
• Established that states must ensure prisoners have a realistic chance of release
when serving preventive sentences.
• Required the UK to reform its IPP sentencing system.
Impact on the UK Prison System
• The case highlighted systemic failures in the UK’s criminal justice system.
fi
fi
ff
fi
fi
fi
ffi
fi
fi
fi
ff
ff
 • Led to reforms in the IPP sentence system.
• Eventually, the UK abolished IPP sentences in 2012 through the Legal Aid, Sentencing
and Punishment of O enders Act 2012.
Conclusion
• The ECHR found that the UK’s failure to provide rehabilitation programs led to unlawful
inde nite detention, violating Article 5§1. This case set an important precedent for the
rights of prisoners serving indeterminate sentences and led to reforms in the UK’s
sentencing laws.
Margin of Appreciation – Did the UK Have a Wide or Narrow Margin?
The UK had a narrow margin of appreciation.
Why?
• Article 5 (Right to Liberty) is a fundamental right, and any restrictions must be strictly
justi ed.
• Inde nite detention without proper review is an extreme measure that must be
proportionate.
• The UK’s failure was systemic and avoidable, making a narrow margin of appreciation
appropriate.
• Conclusion: The Court gave the UK little discretion and ruled that detaining prisoners
beyond their tari period without providing rehabilitative opportunities was unlawful.
Case: Del Río Prada v. Spain (2013)
Legal Issue: Whether the retroactive application of the "Parot Doctrine" violated Article 7 (No
Punishment Without Law) and Article 5 (Right to Liberty and Security) of the European
Convention on Human Rights (ECHR).
Facts of the Case
Background
• Applicant: Inés del Río Prada, a Spanish national born in 1958, was a member of ETA, a
Basque separatist terrorist organization.
• Convictions: Between 1988 and 2000, she was convicted in eight separate criminal
cases for terrorist o enses, including:
◦ Being a member of a terrorist organization.
◦ Murder (multiple counts) (24 to be exact)
◦ Possession of explosives and weapons.
◦ Forgery and use of false documents.
◦ Attempted murder.
Sentencing and Maximum Imprisonment
• In total, she received more than 3,000 years of imprisonment for her crimes.
• However, under Article 70.2 of the Spanish Criminal Code of 1973, the maximum time a
person could serve in prison was 30 years (regardless of total sentences).
• The Spanish National Court (Audiencia Nacional) determined in 2000 that she would be
eligible for release on 2 July 2008, considering the remissions (sentence reductions for
good behavior and work done in prison).
Introduction of the "Parot Doctrine" (2006)
• In 2006, the Spanish Supreme Court adopted the "Parot Doctrine", ruling that sentence
reductions should no longer apply to the maximum 30-year sentence, but instead to
each individual sentence before being combined. (The 'Parot doctrine' ensures that
remission for work done in prison is deducted from the total sentence rather than the 30-
year limit under Spanish law.)
• As a result, del Río Prada's release date was recalculated, extending her imprisonment
until 27 June 2017, nearly nine years longer than expected.
• Del Río Prada challenged the decision, arguing that it was retroactively applied to her
case, violating her right to no harsher punishment than what was in e ect at the time
of her crimes.
Procedural History
Domestic Proceedings in Spain
• The applicant appealed to the Audiencia Nacional, arguing that the retroactive
application of the Parot Doctrine violated her rights.
fi
fi
fi
ff
ff
ff
ff
 • The Audiencia Nacional rejected her appeal on 10 July 2008.
• She led an amparo appeal with the Spanish Constitutional Court, which declared it
inadmissible on 17 February 2009.
• After exhausting domestic remedies, she led an application to the European Court of
Human Rights (ECHR) on 3 August 2009.
ECHR Chamber Judgment (2012)
• In 2012, a Chamber of the ECHR found violations of Article 7 and Article 5 and ruled
in favor of del Río Prada.
• Spain appealed, and the case was referred to the Grand Chamber.
Arguments Presented
Applicant (Del Río Prada)
• Violation of Article 7 (No Punishment Without Law):
◦ The "Parot Doctrine" was applied retroactively, increasing her prison term
beyond what was foreseeable at the time of sentencing.
◦ At the time of her sentencing, Spanish law clearly applied sentence reductions
to the maximum 30-year term.
◦ The Supreme Court's new interpretation in 2006 changed the legal framework to
her detriment, violating the principle of legal certainty.
• Violation of Article 5 (Right to Liberty and Security):
◦ The legal basis for her continued detention after 2 July 2008 was not valid,
making her continued imprisonment arbitrary.
◦ She had a legitimate expectation of release based on the law and practice at the
time of her sentencing.
Spanish Government
• No Violation of Article 7:
◦ The Parot Doctrine was merely an interpretation of existing law, not a new law.
◦ It did not retroactively impose a new sentence, but rather clari ed how
remissions should be applied.
• No Violation of Article 5:
◦ The continued detention was lawful under Spanish law, since the Parot Doctrine
was validly applied by Spanish courts.
◦ Public safety concerns justi ed the measure, as del Río Prada was convicted of
multiple acts of terrorism.
Judgment of the ECHR (Grand Chamber, 2013)
1. Violation of Article 7 (Retroactive Application of Harsher Punishment)
The Court ruled that Spain violated Article 7 of the ECHR.
• The Parot Doctrine was applied retroactively, leading to a longer term of
imprisonment than was foreseeable at the time of sentencing.
• A clear and established legal framework in Spain before 2006 allowed sentence
reductions to be applied to the maximum 30-year limit.
• The Supreme Court's 2006 reinterpretation substantially changed the rules to the
applicant’s detriment, which violated the principle of legal certainty.
2. Violation of Article 5 (Arbitrary Detention)
The Court ruled that Spain violated Article 5 § 1 of the ECHR.
• Del Río Prada should have been released on 2 July 2008.
• The Parot Doctrine lacked a legal basis under Spanish law at the time of sentencing,
making her continued detention after that date unlawful and arbitrary.
Final Decision:
• The Court ordered Spain to immediately release del Río Prada.
• Spain was required to pay her €30,000 in damages and €1,500 in legal costs.
Impact and Signi cance
Legal Precedents Set by the Case
• Con rmed that changes in sentencing policy cannot be retroactively applied to
increase imprisonment.
• Established that prisoners have the right to expect sentence reductions based on the
legal framework at the time of conviction.
fi
fi
fi
fi
fi
fi
 • Strengthened the principle of legality and protection against retrospective
punishment in Europe.
Impact in Spain
• The ruling led to the release of del Río Prada and a ected dozens of other ETA
prisoners sentenced under similar circumstances.
• The Spanish government complied with the ruling but faced domestic controversy over
the release of ETA members.
• The "Parot Doctrine" was e ectively nulli ed, forcing Spain to reform its sentencing
system.
Conclusion
• The ECHR ruled that Spain’s retroactive application of the Parot Doctrine violated the
fundamental principles of no punishment without law (Article 7) and protection against
arbitrary detention (Article 5). The judgment reinforced legal certainty in sentencing and
prisoners' rights across Europe.
Margin of Appreciation – Did Spain Have a Wide or Narrow Margin?
Spain had a narrow margin of appreciation.
Why?
• Article 7 violations are among the most serious breaches of human rights, allowing
little to no discretion for states.
• The ECHR strictly enforces the principle of legal certainty in criminal law.
• Retroactive application of a harsher punishment is a clear violation, leaving no room
for national interpretation.
• Conclusion: The Court gave Spain almost no discretion, reinforcing the strict
application of non-retroactivity in criminal sentencing.
Session 11: ARTICLE 6 AND THE RIGHT TO A FAIR TRIAL & ARTICLE 7 AND THE FREEDOM
OF PUNISHMENT WITHOUT LAW
Article 6: Right to a fair trail
1. In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
2. Everyone charged with a criminal o ence shall be presumed innocent until proved guilty
according to law.
3. Everyone charged with a criminal o ence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he
has not su cient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.
Article 7: No punishment without law
1. No one shall be held guilty of any criminal o ence on account of any act or omission which
did not constitute a criminal o ence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the
time the criminal o ence was committed.
ffi
ff
ff
ff
ff
ff
fi
ff
ff
 2. 2. This Article shall not prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.
Case: Golder v. the United Kingdom (1975)
Legal Issue: Whether the refusal of a prisoner’s right to consult a lawyer to initiate civil
proceedings violated Article 6 (Right to a Fair Trial) and Article 8 (Right to Respect for
Correspondence) of the European Convention on Human Rights (ECHR).
Facts of the Case
Background
• Applicant: Sidney Elmer Golder, a British national born in 1923, was convicted of
robbery with violence in 1965 and sentenced to 15 years in prison.
• While serving his sentence in Parkhurst Prison (Isle of Wight, UK), an incident occurred
on 24 October 1969, during which there was a riot in the prison recreation area.
• A prison o cer (Mr. Laird) accused Golder of attacking him during the riot, although
there was no direct evidence of Golder's involvement.
Consequences for Golder
• Golder was placed in segregation and interrogated by the police.
• On 7 November 1969, another prison o cer testi ed that Golder had not participated
in the riot.
• Despite this, Golder remained in segregation, and accusations remained in his prison
record.
Golder's Request to Consult a Lawyer
• 20 March 1970: Golder petitioned the UK Home Secretary for permission to consult a
solicitor to le a libel lawsuit against the prison o cer (Mr. Laird) for making a false
accusation.
• 6 April 1970: The Home Secretary denied his request without providing a reason.
• Under UK prison rules at the time, prisoners needed the Home Secretary’s approval to
contact a lawyer for civil cases unrelated to their criminal conviction.
Golder’s Legal Complaint
• Golder was released on parole on 12 July 1972.
• He led a complaint before the European Commission of Human Rights (EComHR),
arguing that the UK violated his right to a fair trial (Article 6) and his right to
correspondence (Article 8).
• The case was referred to the European Court of Human Rights (ECHR) in 1973.
Procedural History
Domestic Proceedings in the UK
• Golder had no e ective remedy in the UK legal system since prisoners had no
guaranteed right of access to a lawyer for civil matters.
Proceedings Before the European Court of Human Rights
• The European Commission of Human Rights (EComHR) ruled in favor of Golder,
stating that Article 6 guarantees a right of access to the courts and that the UK’s
restriction was unlawful.
• The UK government appealed the decision to the ECHR.
Arguments Presented
Applicant (Golder)
• Violation of Article 6 (Right to a Fair Trial):
◦ The UK prevented him from consulting a lawyer, e ectively blocking his ability
to access the courts.
◦ Access to a lawyer is a fundamental requirement to exercise the right to a fair
trial.
◦ The right to a fair trial must include the right to bring a civil claim, not just the
right to defend oneself in existing proceedings.
• Violation of Article 8 (Right to Respect for Correspondence):
◦ The refusal to allow him to contact a lawyer was an unjusti ed interference
with his right to communicate.
fi
ffi
fi
ff
ffi
fi
ffi
ff
fi
 ◦ Even if his letters were not directly censored, preventing him from writing at all
was an extreme restriction.
UK Government
• No Violation of Article 6:
◦ Article 6 only applies to cases where a person is already in court proceedings,
not when someone is seeking to start a lawsuit.
◦ There is no general right of access to the courts under the Convention; it only
guarantees fair procedures once a case has been initiated.
◦ Restrictions on prisoners’ access to lawyers were necessary for prison discipline
and security.
• No Violation of Article 8:
◦ The Home Secretary had broad discretion over prisoner correspondence for
security reasons.
◦ Preventing Golder from writing to a lawyer was a reasonable measure to maintain
prison order.
Judgment of the ECHR
1. Violation of Article 6 (Right to a Fair Trial)
The Court ruled that the UK violated Article 6.
• For the rst time, the ECHR ruled that Article 6 includes a fundamental "right of
access to the courts."
• The right to a fair trial would be meaningless if individuals were prevented from
initiating legal proceedings.
• The refusal to let Golder consult a lawyer e ectively denied him access to justice.
• The UK’s restriction was disproportionate and unjusti ed.
2. Violation of Article 8 (Right to Correspondence)
The Court ruled that the UK violated Article 8.
• The UK’s refusal constituted an unjusti ed interference with Golder’s correspondence
rights.
• The restriction was not necessary for prison security and did not meet the
requirements of a "democratic society."
• Even preventing a prisoner from starting a letter counts as interference under Article
8.
Final Decision:
• The ECHR ordered the UK to comply with the ruling but did not award nancial
compensation, stating that the recognition of a violation was su cient just
satisfaction.
Impact and Signi cance
Legal Precedents Set by the Case
• Established that Article 6 guarantees the "right of access to the courts."
• Con rmed that preventing someone from contacting a lawyer can violate Article 6.
• Clari ed that even preventing a letter from being written violates Article 8.
Impact on the UK
• The UK had to reform its prison regulations to allow prisoners greater access to legal
representation for civil matters.
• The ruling strengthened prisoners’ rights across Europe, ensuring they could not be
arbitrarily denied access to justice.
Conclusion
• The ECHR ruled that the UK violated both Article 6 and Article 8 by denying a prisoner
access to a lawyer to initiate legal proceedings. This case set a major precedent for the
right to access the courts, making it one of the most important human rights
judgments in Europe.
Margin of Appreciation – Did the UK Have a Wide or Narrow Margin?
The UK had a narrow margin of appreciation.
Why?
• Article 6 is a fundamental right, and limitations on the right to a fair trial are very strictly
controlled.
fi
fi
fi
fi
fi
ff
fi
ffi
fi
 • The restriction was disproportionate and not justi ed by security concerns.
• The Court ruled that no country can arbitrarily block access to justice.
• Conclusion: The Court gave the UK little discretion, reinforcing the absolute nature of
the right of access to the courts.
Case: Jones and Others v. the United Kingdom (2014)
Legal Issue: Whether the grant of immunity in civil proceedings to the Kingdom of Saudi
Arabia and its o cials violated Article 6 (Right to a Fair Trial) of the European Convention on
Human Rights (ECHR).
Facts of the Case
Background
• Applicants: Four British nationals:
1. Ronald Grant Jones (born 1953)
2. Alexander Hutton Johnston Mitchell (born 1955)
3. William James Sampson (born 1959, also held Canadian nationality)
4. Leslie Walker (born 1946)
• Allegations:
1. The applicants were arrested and detained in Saudi Arabia between 2000 and
2001 under allegations of involvement in a bombing campaign in Riyadh.
• The attacks targeted Western expatriates and were initially blamed on a rivalry
between Western alcohol traders in Saudi Arabia.
• The applicants strongly denied any involvement in terrorism or illegal alcohol
trade.
2. They claimed they were tortured by Saudi o cials, including:
▪ Severe beatings
▪ Sleep deprivation
▪ Suspension by their arms
▪ Drugging
▪ In the case of Mr. Sampson, anal rape
• The UK privately lobbied for their release, but Saudi Arabia refused to
acknowledge allegations of torture.
• After diplomatic pressure, the applicants were eventually released without formal
charges.
3. The applicants later obtained medical reports con rming that their injuries were
consistent with torture.
Legal Action in the UK
• The applicants sued the Kingdom of Saudi Arabia and its o cials in UK courts,
claiming damages for torture.
• The cases were dismissed by UK courts on the grounds of state immunity under the
State Immunity Act 1978.
• State immunity is a principle in international law that protects foreign states and their
o cials from being sued in national courts. It is based on sovereign equality—one
state cannot judge another state in its courts without consent.
• They argued that this denied them access to justice, violating their rights under Article 6
of the ECHR.
Procedural History
Domestic Proceedings in the UK
Jones v. Saudi Arabia (2003-2006)
• March 2001: Mr. Jones was injured in a bomb explosion in Riyadh and subsequently
arrested and tortured.
• May 2002: Jones led a lawsuit in the UK High Court against:
◦ The Saudi Arabian Ministry of the Interior
◦ Lieutenant Colonel Abdul Aziz (his alleged torturer)
• February 2003: Saudi Arabia argued that state immunity applied under the State
Immunity Act 1978.
• July 2003: UK High Court ruled in favor of Saudi Arabia, stating that both the state and
its o cials were immune from prosecution.
ffi
ffi
ffi
fi
ffi
fi
fi
ffi
 Mitchell, Sampson, and Walker v. Saudi O cials (2004)
• The other three applicants led separate lawsuits against four Saudi o cials, including:
◦ Two Saudi policemen
◦ The Deputy Governor of the prison
◦ The Saudi Minister of the Interior (who allegedly sanctioned the torture)
• The UK High Court dismissed the cases, citing state immunity.
Appeal to the UK Court of Appeal (2004)
• The Court of Appeal ruled that Saudi Arabia had state immunity but allowed the claims
against individual o cials to proceed.
House of Lords Judgment (2006)
• The UK government and Saudi Arabia appealed to the House of Lords.
• June 2006: The House of Lords ruled in favor of Saudi Arabia, dismissing all claims,
stating:
◦ Saudi Arabia was immune under international law.
◦ Saudi o cials also had immunity because their actions were attributable to
the state.
◦ There was no international legal precedent to override this immunity.
Proceedings Before the European Court of Human Rights (ECHR)
• July & September 2006: The applicants led complaints with the ECHR, arguing that
state immunity unfairly denied them access to justice in violation of Article 6 of the
ECHR.
• 2009: The case was communicated to the UK government.
• 2014: The ECHR delivered its nal judgment.
Arguments Presented
Applicants (Jones and Others)
• Violation of Article 6 (Right to a Fair Trial):
◦ The UK’s refusal to hear their case due to state immunity e ectively denied
them access to justice.
◦ The prohibition of torture is a jus cogens (peremptory) norm, meaning it
overrides other legal protections, including state immunity.
◦ Saudi Arabia’s o cials should not be immune since they were responsible for
committing serious human rights violations.
UK Government
• No Violation of Article 6:
◦ State immunity is a well-established rule of international law.
◦ The UK was merely following international legal norms, which grant foreign
states immunity from civil lawsuits.
◦ There is no recognized exception for torture in international civil cases—only in
criminal cases (e.g., the Pinochet case).
◦ Denying jurisdiction did not violate Article 6, as state immunity is a legitimate
restriction on the right to access courts.
Judgment of the ECHR (Fourth Section, 2014)
1. No Violation of Article 6 (State Immunity for Saudi Arabia)
The Court ruled that the UK did NOT violate Article 6 by granting Saudi Arabia immunity.
• State immunity is a general rule of international law, and it cannot be overridden by
human rights claims in civil cases.
• The UK followed accepted international practice, meaning there was no arbitrary
denial of justice.
• The principle of state immunity applies even in cases of alleged torture, unless
international law explicitly provides an exception.
2. No Violation of Article 6 (State Immunity for Saudi O cials)
The Court ruled that the UK did NOT violate Article 6 by granting immunity to Saudi o cials.
• The House of Lords had correctly ruled that acts of state o cials were attributable to
the state itself, meaning the o cials shared the state's immunity.
• There was no clear international legal consensus that foreign o cials lose immunity in
civil lawsuits for torture.
ffi
ffi
ffi
fi
ffi
fi
fi
ffi
ffi
ffi
ff
ffi
ffi
ffi
 • The ECHR cannot "create" new exceptions to state immunity; this must be developed
through customary international law.
Final Decision:
• The ECHR dismissed the case, upholding the UK's decision to grant Saudi Arabia and
its o cials immunity.
Impact and Signi cance
Legal Precedents Set by the Case
• Con rmed that state immunity applies even in cases of torture.
• Established that Article 6 does not override state immunity.
• Clari ed that individual o cials also enjoy immunity if their acts are attributable to
the state.
Impact on International Law
• This case reinforced the principle that jus cogens norms (such as the prohibition of
torture) do NOT automatically override state immunity in civil cases.
• The decision has been criticized for limiting the ability of torture victims to seek
redress through civil lawsuits.
Conclusion
• The ECHR ruled that the UK was justi ed in granting Saudi Arabia and its o cials
immunity, even in a case of alleged torture. While torture is prohibited under
international law, state immunity remains a procedural barrier to civil claims against
foreign governments and their o cials.
Margin of Appreciation – Did the UK Have a Wide or Narrow Margin?
The UK had a wide margin of appreciation.
Why?
• State immunity is well-established in international law, giving states discretion in
applying it.
• There was no clear international rule requiring the UK to allow civil lawsuits against
Saudi Arabia.
• The ECHR cannot create new exceptions to immunity—it must follow existing
international legal norms.
• Conclusion: The UK had broad discretion to apply state immunity, and the ECHR
upheld its decision.
Case: Navalnyy and O tserov v. Russia (2016)
Legal Issues: Right to a Fair Trial (Article 6), No Punishment Without Law (Article 7), and
Abuse of Rights (Article 18).
Facts of the Case
Background
• Applicants:
◦ Aleksey Anatolyevich Navalnyy – A political activist, opposition leader, anti-
corruption campaigner, and lawyer.
◦ Petr Yuryevich O tserov – A businessman, formerly Director of Vyatskaya
Lesnaya Kompaniya (VLK), a timber trading company.
• Charges:
◦ Both applicants were convicted of embezzlement under Article 160 § 4 of the
Russian Criminal Code.
◦ Navalnyy was accused of organizing the embezzlement, while O tserov was
accused of facilitating it.
The Timber Sales Contract Between Kirovles and VLK
• In 2009, Navalnyy served as a volunteer advisor to the Governor of the Kirov region to
enhance transparency in state property management.
• Kirovles, a state-owned timber company, was nancially struggling.
• Navalnyy suggested involving private intermediaries, leading to a contract with
O tserov’s company, VLK. (an intermediary buyer)
• Kirovles agreed to sell timber to VLK, which would then resell it to customers for a 7%
commission.
fi
fi
ffi
fi
fi
fi
fi
ffi
ffi
fi
fi
fi
ffi
 • This contract was fraudulent and deliberately structured to extract pro ts at Kirovles’
expense
• Kirovles could have sold timber directly to buyers at a higher price without involving
VLK.
• Navalnyy pressured Kirovles’ director into signing the agreement with VLK.
• O tserov and Navalnyy knowingly organized the scheme to pro t from state assets.
• The deal caused Kirovles to lose 16 million rubles ($500,000 USD).
• The contract lasted from April to September 2009, but was later terminated.
Criminal Investigation and Trial
• In 2010, Russian authorities opened an investigation into Kirovles’ nancial activities.
• The initial inquiry found no evidence of wrongdoing.
• However, in 2012, the Russian Investigative Committee reopened the case.
• Kirovles' former director, X, was arrested and agreed to a plea bargain, testifying
against the applicants.
• In 2013, Navalnyy and O tserov were found guilty and sentenced to:
◦ Navalnyy – 5 years in prison (later reduced to a suspended sentence).
◦ O tserov – 4 years in prison (also later reduced to a suspended sentence).
◦ Both were ned 500,000 RUB.
• The case was highly political, as Navalnyy was an outspoken critic of the Russian
government.
Arguments Presented
Applicants’ Arguments
• Violation of Article 6 (Right to a Fair Trial):
◦ The trial was not impartial.
◦ The key witness (Kirovles’ former director) had been pressured into a plea
bargain.
◦ The court relied on evidence from another case (X’s trial) without proper cross-
examination.
◦ They were denied access to key nancial documents.
• Violation of Article 7 (No Punishment Without Law):
◦ The transaction was a legitimate business deal, not embezzlement.
- Key defense points:
• The 7% commission was a fair market rate for intermediaries.
• Kirovles voluntarily agreed to the deal without coercion.
• There was no evidence that they personally pro ted from the arrangement.
• No law required Kirovles to sell timber directly, and it had the right to
choose its sales strategy.
• The prosecution criminalized a common business practice that occurs in many
industries.
◦ The law was applied in an arbitrary and unforeseeable manner.
• Violation of Article 18 (Restrictions on Rights for Political Purposes):
◦ The prosecution was politically motivated.
◦ The case aimed to suppress Navalnyy’s political activity.
Russian Government’s Arguments
• No Violation of Article 6:
◦ The trial was conducted lawfully.
◦ The applicants were given full access to legal representation.
◦ The plea bargain was a legitimate legal process.
• No Violation of Article 7:
◦ The applicants intended to misappropriate state assets.
◦ The court had clear legal grounds for the conviction.
• No Violation of Article 18:
◦ The case was a criminal matter, not political persecution.
Judgment of the ECHR
Violation of Article 6 (Right to a Fair Trial)
The Court ruled that Russia violated Article 6:
fi
fi
fi
fi
fi
fi
fi
fi
fi
 • The trial was unfair due to:
◦ Use of evidence from a separate case (X’s trial), which the applicants could
not challenge.
◦ Reliance on a plea bargain statement from a key witness under pressure.
◦ Denial of access to crucial nancial documents.
◦ The court did not adequately assess the applicants’ arguments.
Violation of Article 7 (No Punishment Without Law)
The Court ruled that Russia violated Article 7:
• The conviction lacked a legal basis:
◦ The transaction was a legitimate business contract.
◦ There was no precedent for classifying it as embezzlement.
◦ The legal interpretation was arbitrary.
Inadmissibility of Article 18 (Political Persecution)
The Court did NOT nd a violation of Article 18.
• While acknowledging the political context, the Court did not nd conclusive evidence
that the prosecution was purely politically motivated.
Impact and Signi cance
• Political Implications:
◦ The ruling con rmed that Navalnyy’s trial was unfair and politically motivated.
◦ It damaged Russia’s reputation in human rights courts.
• Legal Precedents:
◦ States must ensure due process, even in high-pro le cases.
◦ Business transactions should not be arbitrarily criminalized.
• E ect on Russia’s Legal System:
◦ Russia has ignored ECHR rulings in political cases, showing a trend of judicial
suppression.
Conclusion
• The ECHR ruled against Russia, nding serious violations of the right to a fair trial and
the principle of legality. The case highlighted political manipulation of the judicial
system to suppress opposition gures like Navalnyy. However, the ECHR did not formally
recognize the case as purely politically motivated under Article 18.
• EUR 8,000 each in respect of non-pecuniary damage; claims in respect of pecuniary damage
dismissed.
Margin of Appreciation – Did Russia Have a Wide or Narrow Margin?
Russia had a narrow margin of appreciation.
• Why?
◦ The case involved fundamental rights (fair trial, legality of punishment).
◦ There was no reasonable legal justi cation for the conviction.
◦ The ECHR strictly limits state discretion in politically sensitive cases.
Session 12: ARTICLE 9 FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
Article 9: Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as
are prescribed by law and are necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or for the protection of the
rights and freedoms of others.
READINGS
Book: Nussberger: The European Court of Human Rights; Subsidiarity, p. 95
Subsidiarity: Subsidiarity is the principle of allowing the individual members of a large
organization to make decisions on issues that a ect them, rather than leaving those decisions to
be made by the whole group
• Introduction to Subsidiarity in the ECHR
- Subsidiarity is a fundamental principle of the ECHR’s legal framework.
ff
fi
fi
fi
fi
fi
fi
fi
ff
fi
fi
 - The doctrine dictates that the primary responsibility for securing human rights lies with
the High Contracting Parties (Member States).
- The European Court of Human Rights (ECtHR) plays a supervisory role, intervening
only when national authorities fail to uphold the rights guaranteed under the Convention.
• ‘A rming that the High Contracting Parties, in accordance with the principle of
subsidiarity, have the primary responsibility to secure the rights and freedoms de ned
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.’
• Protocol No. 15 and Its Impact
- Adopted in 2013 but not yet entered into force at the time of writing.
- Adds a new recital to the Preamble of the Convention a rming that:
• States have the primary responsibility to secure rights.
• They enjoy a margin of appreciation ( exibility in how they apply rights).
• The Court retains supervisory jurisdiction over state decisions.
- This new recital reinforces the Court’s existing jurisprudence rather than introducing a
major shift.
- However, it has sparked debate over whether it limits the Court’s role.
• Debate: The Court’s Limits and the ‘Living Instrument’ Doctrine
- Some critics argue that the ECtHR has overstepped its role, becoming too activist in
interpreting human rights dynamically.
- The living instrument doctrine refers to the idea that the Convention evolves over time
to re ect societal changes.
- Protocol No. 15 acts as a reminder for the Court to respect the limits of its role.
• This revision lies in the centre of the political debate about the Court ‘going too far’ and
blurring the roles of legislator and judiciary with its livinginstrument doctrine
- The Court’s response has been greater emphasis on judicial self-restraint to maintain
legitimacy.
• Case Study: S.A.S. v France (2014)
- A landmark case regarding France’s ban on wearing the burka in public places.
- The Court ruled that it must respect national decisions based on democratic
processes.
- Key argument: The Court must acknowledge the "choice of society" when a
democratically elected legislature balances rights.
- First time the Court explicitly stated that it should accept national decisions if based on
legitimate democratic processes.
• The "Age of Subsidiarity”
- Judge Robert Spano describes the Court’s new approach as "the age of subsidiarity”.
- Increasing emphasis on procedural legitimacy rather than substantive intervention.
- The Court now focuses on whether national processes were fair and reasonable, rather
than simply imposing its own interpretation.
• Conclusion
- Subsidiarity is not a radical change, but rather a reinforcement of existing principles.
- The balance between national sovereignty and human rights protection remains central to
the Court’s role.
- The trend toward self-restraint raises questions about how far the Court should go in
deferring to national governments while ensuring e ective human rights protection.
Case: Lautsi and Others v. Italy (2011)
Article 2 of Protocol No. 1 Right to education
No person shall be denied the right to education. In the exercise of any functions which it
assumes in relation to education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with their own religious and
philosophical convictions.
Legal Issues: Freedom of Religion (Article 9), Right to Education (Article 2 of Protocol No. 1)
Facts of the Case
Background
• Applicants:
ffi
fl
fl
ff
ffi
fi
 ◦ Soile Lautsi, an Italian national.
◦ Her two sons, Dataico and Sami Albertin, who attended a state school in Abano
Terme, Italy.
• What happened?
◦ In 2001-2002, the applicants noticed that a cruci x was displayed in their
children’s classrooms.
◦ Lautsi objected, arguing that the presence of cruci xes in state-school
classrooms violated secularism (the separation of religion from civil a airs
and the state) and the right to education in conformity with her beliefs.
◦ She formally requested the removal of cruci xes, but the school’s governing
body refused.
◦ She appealed to the Veneto Administrative Court, which dismissed her claim,
stating that cruci xes were a part of Italian cultural heritage.
◦ The Italian Consiglio di Stato (Supreme Administrative Court) upheld this
ruling.
• Legal Basis of Cruci xes in Classrooms
◦ The obligation to display cruci xes in state schools came from Fascist-era
regulations (1924 & 1928 Royal Decrees).
◦ The Italian government argued that the cruci x was a cultural and identity-
linked symbol, not just a religious one.
• Application to the ECHR
◦ Lautsi led a complaint with the ECHR in 2006, arguing that the presence of
cruci xes violated Article 9 (Freedom of Religion) and Article 2 of Protocol No.
1 (Right to Education in Conformity with Parental Beliefs).
Arguments Presented
Applicants’ Arguments (Lautsi and her sons)
• Violation of Article 9 (Freedom of Religion):
◦ The cruci x is a religious symbol and its compulsory presence in classrooms
amounts to state endorsement of Christianity.
◦ Non-Christian children may feel excluded or pressured to conform.
◦ The display of the cruci x violated religious neutrality in state education.
• Violation of Article 2 of Protocol No. 1 (Right to Education)
◦ Parents have a right to educate their children in conformity with their beliefs.
◦ The presence of a religious symbol interferes with secular or non-religious
parents’ rights.
Italian Government’s Arguments
• No Violation of Religious Freedom (Article 9)
◦ The cruci x is a cultural and historical symbol, not just a religious one.
◦ It represents Italy’s national identity, values, and civilization, including
tolerance, mutual respect, and human dignity.
◦ It is a “passive symbol” that does not impose religious beliefs.
• No Violation of Educational Rights (Article 2 of Protocol No. 1)
◦ The cruci x does not interfere with education or limit parental in uence on
children’s beliefs.
◦ It does not force students to practice religion.
◦ The state has a margin of appreciation in balancing religion and secularism.
Interventions by Third Parties
• The Chamber judgment (2009): The ECHR initially ruled in favor of Lautsi, nding that
Italy violated Article 9 and Article 2 of Protocol No. 1.
• The case was referred to the Grand Chamber, where several European states
(Armenia, Bulgaria, Greece, Russia, etc.) supported Italy, arguing that the presence of
religious symbols in state institutions was a national decision.
Judgment of the ECHR (Grand Chamber, 2011)
1. No Violation of Article 9 (Freedom of Religion)
The Court ruled that the presence of cruci xes did not violate religious freedom.
• The cruci x was a passive symbol and did not involve active religious indoctrination.
fi
fi
fi
fi
fi
fi
fi
fi
fi
fi
fi
fi
fi
fi
fi
fl
ff
fi
 • The mere presence of a religious symbol does not restrict freedom of belief.
2. No Violation of Article 2 of Protocol No. 1 (Right to Education)
The Court ruled that the presence of cruci xes did not interfere with parental rights.
• The educational environment in Italy remained pluralistic and neutral.
• The Italian system did not impose religious instruction.
• Parents still had full freedom to educate their children in line with their beliefs.
Impact and Signi cance
• Political and Social Debate:
◦ The case sparked controversy across Europe, with some arguing for strict
secularism and others defending cultural traditions.
◦ Several European governments supported Italy, fearing that a ruling against
cruci xes would force them to remove religious symbols.
• Legal Precedent:
◦ This ruling rea rmed the state’s margin of appreciation in religious matters.
◦ Passive religious symbols in state institutions do not automatically violate
religious neutrality.
• Reversal of the Chamber Decision:
◦ The ECHR’s 2009 ruling (which supported Lautsi) was overturned.
◦ The Grand Chamber emphasized pluralism and national discretion.
Conclusion
• The ECHR ruled in favor of Italy, stating that cruci xes in classrooms did not violate
religious freedom or the right to education. The Court accepted Italy’s argument that the
cruci x had cultural signi cance beyond religion and gave states a wide margin of
appreciation in regulating religious symbols.
Wide Margin of Appreciation Given to Italy
The Court recognized that states have the right to regulate their own relationship with
religion.
• Italy had the discretion to maintain cruci xes in classrooms as part of its cultural
identity.
• There was no European consensus on the issue, meaning the Court had to respect
national traditions.
Case: S.A.S. v. France (2014)
Legal Issues: Freedom of Religion (Article 9), Private Life (Article 8), Discrimination (Article
14), Freedom of Expression (Article 10), Right to Education (Article 2 of Protocol No. 1)
Facts of the Case
Background
• Applicant: A French Muslim woman (her identity was protected).
• She voluntarily wore a niqab and burqa (full-face veils), believing this was an expression
of her religious faith and cultural identity.
• She was not pressured by family to wear the veil and removed it in situations requiring
identity veri cation (e.g., security checks).
Legal Context
• France passed Law No. 2010-1192, which banned concealing the face in public
places, including streets, shops, public transport, and government buildings.
- Authorities argued that full-face veils prevent proper identi cation, posing security risks.
- The law applied to all face coverings (e.g., masks, balaclavas, and helmets), not just
religious ones.
- France had already passed a law in 2004 banning religious symbols in public schools,
which justi ed extending restrictions to other public spaces.
- The government claimed that full-face veils symbolized female subjugation and wanted to
protect women from coercion by families or religious communities.
- France has a strong tradition of secularism (laïcité), meaning strict separation of religion
and state.
- France introduced a new public interest concept: "Living Together" (Le Vivre Ensemble).
• The government argued that:
- Facial visibility is essential for social interaction and integration.
fi
fi
fi
fi
ffi
fi
fi
fi
fi
fi
fi
 - Full-face veils create social separation, preventing participation in public life.
- The ban was intended to promote social cohesion and prevent religious isolation.
• The law came into e ect on 11 April 2011.
• Punishment for violating the ban: A ne of €150 or a citizenship course (educational
program designed to teach individuals about French laws, values, and principles of
secularism)
Applicant’s Complaint
• She claimed the ban violated her human rights under the European Convention on
Human Rights (ECHR), speci cally:
◦ Article 8 (Right to Private Life)
◦ Article 9 (Freedom of Religion)
◦ Article 10 (Freedom of Expression)
◦ Article 11 (Freedom of Assembly)
◦ Article 14 (Discrimination)
• She argued that the law targeted Muslim women, reinforcing stereotypes and
discrimination.
Arguments Presented
Applicant’s Arguments (S.A.S.)
• Violation of Religious Freedom (Article 9):
◦ The ban prevented her from practicing her religion freely.
◦ Wearing the niqab was her personal choice, not imposed by anyone.
◦ The government failed to show how wearing a veil harmed public order.
• Violation of Private Life (Article 8)
◦ The law interfered with her personal identity and autonomy.
◦ Her clothing choices were part of her cultural and religious identity.
• Violation of Freedom of Expression (Article 10)
◦ Clothing is a form of personal expression, and the ban restricted her ability to
express her faith.
• Violation of Non-Discrimination (Article 14)
◦ The law disproportionately targeted Muslim women.
◦ It reinforced Islamophobia and social exclusion.
French Government’s Arguments
• Public Safety
◦ Full-face veils prevent proper identi cation, which is necessary for public
security.
• Gender Equality
◦ The government argued that the veil symbolizes female subservience.
◦ France promotes gender equality, and the ban was intended to prevent
oppression of women.
• “Living Together” (Le Vivre Ensemble)
◦ The government introduced the concept of “living together” as a new aspect of
public order.
◦ In public spaces, facial visibility is essential for social interaction and
integration.
• No Religious Discrimination
◦ The law was not religiously motivated, as it applied to all forms of face-covering
(e.g., masks, balaclavas).
◦ It aimed to protect fundamental democratic values.
Interventions by Third Parties
• Amnesty International, Open Society Justice Initiative, and other human rights
groups opposed the ban.
• The Belgian government supported France, stating that similar laws were being
introduced in Belgium and other European states.
Judgment of the ECHR (Grand Chamber, 2014)
The Court ruled that the ban was LEGAL and did NOT violate the ECHR.
1. No Violation of Article 9 (Freedom of Religion)
ff
fi
fi
fi
 • The Court recognized that the law limited religious freedom.
• However, the ban pursued legitimate aims, particularly:
◦ Public safety
◦ “Living together” (social interaction)
• The restriction was proportionate and fell within France’s margin of appreciation.
2. No Violation of Article 8 (Right to Private Life)
• While the law a ected personal choices, it did not completely prevent religious
expression.
• The state’s interest in regulating social interaction justi ed the restriction.
3. No Violation of Article 10 (Freedom of Expression)
• Clothing can be a form of expression, but states can restrict it for legitimate reasons.
• The ban was not intended to silence religious expression, but to promote social
cohesion.
4. No Violation of Article 14 (Discrimination)
• The law applied to all face coverings, not just Islamic veils.
• The Court did not nd evidence that Muslim women were speci cally targeted.
France Had a “Wide Margin of Appreciation”
• The ECHR recognized that states have discretion in balancing religious freedom and
public order.
• The “living together” principle was considered a valid reason for limiting individual
freedoms.
Dissenting Opinions
Judges Nussberger and Jäderblom (Dissenting)
The dissenting judges argued that the law violated Article 9 (religious freedom) and Article
8.
• “Living together” is not a legitimate reason to restrict religious freedom.
• The ban marginalized Muslim women, rather than liberating them.
• It reinforced stereotypes and social exclusion.
Impact and Signi cance
• Legal Precedent: This case upheld state authority to regulate religious symbols in
public spaces.
• Expansion of Public Order: The Court accepted “living together” as a legitimate
public interest.
• Increased Restrictions in Europe: Other European countries used this ruling to justify
similar bans (Belgium, Denmark, Netherlands, Austria, etc.).
• Continued Controversy: Human rights groups criticized the ruling, arguing that it
disproportionately a ected Muslim women.
Conclusion
• The ECHR ruled in favor of France, stating that the ban on full-face veils was justi ed on
the grounds of public safety and social cohesion.
• The Court introduced the concept of “living together” as a valid reason for restricting
religious expression.
• However, the case remains controversial, as critics argue that it disproportionately
impacts Muslim women and limits religious freedom.
Session 13: ARTICLE 10 FREEDOM OF OF EXPRESSION
Article 10: Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the disclosure of information
received in con dence, or for maintaining the authority and impartiality of the judiciary
fi
ff
fi
fi
ff
fi
fi
fi
Case: Axel Springer Ag v. Germany (no. 2) (2014)
Facts of the Case
Background
• Applicant: Axel Springer AG, publisher of the German newspaper Bild.
• Context: In December 2005, Bild published an article after former Chancellor Gerhard
Schröder was appointed chairman of a German-Russian gas consortium (NEGP) shortly
after leaving o ce.
• The article raised suspicions that Schröder’s decision to call early elections might
have been motivated by personal interest in securing the lucrative post.
• One quote in particular (from MP Carl-Ludwig Thiele) implied that Schröder may have
triggered elections to pursue private gain.
The Controversial Quote
“Thiele has a monstrous suspicion: ‘Did Schröder want to resign because he had been o ered
lucrative positions? Did he have personal motives in deciding to call early elections in a politically
desperate situation?’”
• Schröder sought an injunction in German courts to ban the republication of this quote,
arguing it damaged his reputation.
Domestic Court Proceedings
Regional Court & Court of Appeal (Hamburg)
• Ruled in favor of Schröder:
◦ The quote conveyed a serious suspicion without su cient factual basis.
◦ Bild did not give Schröder a chance to respond.
◦ The article was unbalanced and lacked objectivity.
◦ It constituted “reporting on suspicion”, which under German law must meet strict
criteria (public interest, minimum evidence, balanced reporting, prior veri cation).
Federal Court of Justice and Constitutional Court
• Refused to admit the case for further review, leaving the injunction in place.
At the European Court of Human Rights
Complaint
Axel Springer AG alleged a violation of Article 10 (freedom of expression), arguing that:
• The article dealt with a matter of general public interest.
• The quote came from an elected MP, and its publication was legitimate.
• There was no legal obligation to verify every statement in political discourse.
• Bild had tried to contact government sources for comment.
Judgment of the ECHR
Violation of Article 10 Found
The Court unanimously ruled in favor of Axel Springer AG, nding that:
Court’s Reasoning
1. Matter of Public Interest
• Schröder’s appointment to the gas consortium raised serious questions about political
integrity, especially given his involvement in the project as Chancellor.
2. Public Figure Standard
• As a former Chancellor, Schröder had to tolerate a higher level of scrutiny.
• The article did not deal with private life, but with his public role and decisions.
3. Freedom of the Press and Political Speech
• The press has a duty to report on political matters and convey public concerns.
• The quote was part of political debate and came from an elected Member of Parliament.
• Journalists should not be punished for publishing politicians’ views, especially when
accurately quoted.
4. Reporting Technique
• The Court emphasized it is not the role of courts to dictate editorial choices.
• The fact that Bild did not explicitly balance the article with positive facts did not render it
unlawful.
5. Research and Veri cation
• The quote was not fabricated, and its source was clear.
• The newspaper had made e orts to contact Schröder’s spokesperson.
ffi
fi
ff
ffi
fi
fi
ff
 • In political discourse, journalists cannot be expected to verify every value judgment or
suspicion before publishing.
6. Chilling E ect
• Even though the sanction was only an injunction, it could deter the press from reporting
on sensitive political issues.
Remedies and Compensation
• Axel Springer AG was awarded €36,338.25 for legal costs.
Signi cance of the Case
• Reinforced freedom of the press, especially in reporting on political gures.
• Clari ed that reporting on suspicions—even serious ones—is protected, especially
when based on quotes from public gures.
• Helped set limits on how far domestic courts can go in restricting political journalism
under defamation or personality rights claims.
Conclusion
• The ECHR found that Germany violated Article 10 by unjustly restricting Bild’s right to
report on a matter of political importance. The Court emphasized the essential role of the
press in democratic debate, especially when quoting elected o cials.
Germany Had a Narrow Margin of Appreciation in This Case
Why Narrow?
1. Political Speech:
◦ The case involved criticism of a former Chancellor’s public actions, which is
core political speech.
◦ The Court repeatedly emphasizes that political expression enjoys the highest
protection under Article 10.
2. Press Freedom:
◦ The press plays a “watchdog” role in democratic societies, especially regarding
state o cials and public accountability.
◦ The restriction (a civil injunction) may seem mild, but the Court considered even
this to have a chilling e ect.
3. European Consensus:
◦ There's a broad European consensus in favor of protecting press freedom,
especially in matters of public interest.
◦ The press must be free to report suspicions and political commentary,
provided it does so responsibly.
Case: Von Hannover v. Germany (no. 2) (2012)
Applicants: Princess Caroline von Hannover and Prince Ernst August von Hannover
Facts of the Case
• The applicants sought injunctions against the publication of photos showing them
during private holidays (in St. Moritz and Zürs) published in German magazines (e.g., Frau
im Spiegel, Frau Aktuell).
• The photos were taken in public spaces but showed them in non-o cial, private
moments (e.g., walking, on ski lifts).
• They claimed a violation of Article 8, arguing that publication infringed their right to
private life.
• This case followed the earlier judgment Von Hannover v. Germany (2004), where the Court
found a violation of Princess Caroline’s rights for similar photo publications.
Domestic Court History
• Regional Courts: Often granted the injunctions.
• Appeal Courts: Sometimes reversed, citing freedom of the press and public interest.
• Federal Court of Justice:
◦ Two photos were banned due to their purely entertainment nature and lack of
public interest.
◦ One photo was allowed: it accompanied an article about the ailing health of
Prince Rainier, which was considered a matter of public interest.
• Federal Constitutional Court upheld the new graduated protection model and found
no violation of the applicants' rights for the photo related to Prince Rainier’s illness.
fi
fi
ffi
ff
ff
fi
ffi
ffi
fi
 Arguments
Applicants:
• The photos were taken without consent and concerned purely private activities.
• They were not performing public duties or engaging in any o cial roles.
• The media had created a “chilling atmosphere” by encouraging constant surveillance.
• They emphasized a lack of legal clarity and constant media harassment.
Government (Germany):
• Defended the balancing test used by domestic courts between Article 8 and Article 10
rights.
• Pointed to revised case-law that now considered public interest and context (including
accompanying articles).
• Asserted that the photos were not taken surreptitiously, and no damaging context was
present.
• Claimed a wide margin of appreciation where courts balanced rights between private
parties.
ECHR’s Reasoning and Judgment
No Violation of Article 8 (Right to Private Life)
The Court held that Germany had struck a fair balance between:
• The applicants’ privacy rights (Article 8)
• The media’s freedom of expression (Article 10)
Key Considerations:
1. Nature of the Photos:
◦ Photos were not o ensive, not secretly taken, and did not show distressing or
intimate moments.
2. Public Interest:
◦ At least one photo related to Prince Rainier’s health, which was a matter of
general public interest.
3. Evolving Domestic Law:
◦ The Federal Court of Justice had adapted its approach after Von Hannover No. 1,
introducing more nuanced protections.
4. Balancing Exercise:
◦ The German courts explicitly balanced the rights under Article 8 and 10 using
legitimate criteria.
Margin of Appreciation
Germany had a WIDE margin of appreciation
• Because the case involved balancing competing fundamental rights (privacy vs. press
freedom) between private parties,
• The ECtHR gives States broader discretion in such balancing exercises.
• The Court found no manifest error in the German courts' reasoning or proportionality
analysis.
Signi cance of the Case
• Clari ed the limits of privacy rights for public gures when photographed in public
spaces.
• A rmed that public interest (especially in health or political matters) can justify photo
publication.
• Highlighted that Germany had reformed its legal approach post-Von Hannover No. 1,
ensuring better privacy protections while respecting press freedom.
• Cemented the principle of proportional balancing between Articles 8 and 10.
Conclusion
• No violation of Article 8.
• Germany adequately protected the applicants’ private life while upholding press freedom.
• The Court recognized the legitimacy of public interest reporting, especially regarding
gures of public relevance, and endorsed the domestic courts’ nuanced legal
evolution.
Dissenting Opinions
fi
ffi
fi
fi
ff
fi
ffi
 Joint Dissenting Opinion of Judges Tulkens, Sajó, and Spielmann
These judges disagreed with the majority and believed that Article 8 (right to private life) had
been violated.
Key Arguments:
• Being in a public space does not eliminate one’s right to privacy, especially for public
gures not performing o cial duties.
• The photos were not linked to the public interest, especially those showing purely
private activities like skiing.
• The notion of “public interest” was interpreted too broadly by the majority.
• The accompanying articles were not serious journalism, but rather celebrity gossip.
• The media’s purpose was entertainment, not democratic debate.
• The harassment and constant surveillance faced by the applicants (especially Princess
Caroline) was not properly addressed.
Notable Quote:
"A legitimate interest in information must not become a pretext for satisfying curiosity or for
commercially exploiting the image of public gures."
Separate Dissenting Opinion of Judge Costa (then President of the Court)
Judge Costa took a more nuanced approach, expressing reservations about the breadth of the
majority’s reasoning, particularly:
Key Concerns:
• He was uncomfortable with how the concept of public interest was applied to the
photo of Princess Caroline skiing.
• He warned that this interpretation could weaken the protection of private life, even for
non-o cial contexts.
• While he agreed with the outcome for the Prince Rainier-related photo, he expressed
doubt about the others.
Case: Sanchez v. France (2023)
Facts of the Case
• Julien Sanchez, a Front National candidate for parliament in France and digital
communication strategist, posted a Facebook message criticizing a political opponent.
• The public post was followed by Islamophobic and anti-Muslim comments by third
parties on his public Facebook wall.
• Sanchez did not remove the comments after being made aware of them.
• A ected individuals, including the partner of the opponent (Leila T.), led a criminal
complaint, stating they were personally targeted and racially insulted.
Domestic Legal Proceedings
Criminal Conviction
• Convicted (2013) for incitement to hatred or violence under the Freedom of the Press
Act (1881) and the Audiovisual Communication Act (1982).
• Court emphasized:
◦ He allowed public access to the page.
◦ He was a politician familiar with digital tools.
◦ He failed to act promptly despite awareness.
• Fined €3,000 and ordered to pay damages.
Appeals
• Court of Appeal and Court of Cassation upheld the conviction, noting that Sanchez had a
duty to moderate his platform given its public and political nature.
Issues Before the European Court of Human Rights
Sanchez claimed a violation of Article 10, arguing:
• He was not the author of the comments.
• He could not be held responsible for others’ speech.
• The conviction had a chilling e ect on political expression, especially during a campaign.
• The chilling e ect refers to a situation where individuals or the media refrain from
exercising their rights—especially freedom of expression—due to fear of legal
sanctions, penalties, or uncertainty about the limits of lawful speech.
Grand Chamber’s Reasoning
Interference:
fi
ff
ffi
ff
ffi
ff
fi
fi
 Yes, the criminal conviction interfered with freedom of expression.
Lawfulness and Legitimate Aim:
• The interference was “prescribed by law” and pursued the legitimate aim of protecting
the rights of others from hate speech.
Necessity in a Democratic Society
The Court rejected Sanchez's claim, nding no violation of Article 10:
Key Considerations:
1. Nature of Comments:
◦ Extremely Islamophobic, racist, and incited hatred against Muslims and North
Africans.
2. Public Role of Sanchez:
◦ Politician using Facebook as part of a campaign.
◦ Had prior experience in digital communication.
◦ Knew or should have known the impact of hateful content, especially during
elections.
3. Public Access and Moderation:
◦ The account was public and used for political purposes.
◦ Sanchez did not take timely action, despite being noti ed.
4. Proportionality:
◦ Penalty was relatively minor (a ne).
◦ The case did not involve his own speech, but failure to moderate others.
◦ The Court found the balance between rights (expression vs. protection from hate)
was appropriately struck.
Legal Doctrine Emphasized
• Public gures, especially politicians, have increased duties on digital platforms.
• There is a shared responsibility between users, hosts, and platform owners.
• Politicians must implement moderation or ltering, even without direct noti cation,
when operating public spaces.
Dissenting Opinions
Yes — signi cant dissent:
Judge Ravarani (Dissent):
• Warned that the ruling threatens open democratic debate.
• Sanchez did not post the comments himself.
• Emphasized lack of clear notice or request to delete.
Judge Bošnjak (Dissent):
• Expressed concern over lack of clarity in how much liability users have over third-party
content.
• Suggested a chilling e ect on public discourse.
Joint Dissent (Judges Wojtyczek and Zünd):
• Argued the majority imposed too heavy a burden on account holders.
• Feared overreach into freedom of expression by holding individuals liable for third-party
speech.
Margin of Appreciation
France was granted a moderate margin of appreciation, but the Court:
• Applied strict scrutiny due to the involvement of political speech and social media.
• Acknowledged the context of rising online hate speech, especially in electoral settings.
Signi cance of the Case
• Landmark judgment on social media liability, especially for politicians.
• Introduces the concept of a “duty to moderate” political pages.
• Shows the Court’s evolving view on online hate speech, platform responsibility, and the
role of public gures in maintaining civil discourse online.
Conclusion
• No violation of Article 10.
• Sanchez’s failure to act on known hate speech was criminally punishable, given the
context, his role, and the harm caused.
fi
fi
fi
fi
ff
fi
fi
fi
fi
fi
Session 14: ARTICLE 15 AND THE DEROGATIONS IN TIME OF WAR OR PUBLIC
EMERGENCY THREATENING THE LIFE OF THE NATION
Article 15: Derogation in time of emergency
1. In time of war or other public emergency threatening the life of the nation any High Contracting
Party may take measures derogating from its obligations under this Convention to the extent
strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or
from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary
General of the Council of Europe fully informed of the measures which it has taken and the
reasons therefor. It shall also inform the Secretary General of the Council of Europe when such
measures have ceased to operate and the provisions of the Convention are again being fully
executed.
Case: Chahal v. the United Kingdom (1996)
Facts of the case:
• Mr. Chahal, a Sikh Indian national, entered the UK in 1971 and became a prominent
member of the International Sikh Youth Federation (ISYF).
• It is banned as a terrorist organisation under Australian, Japanese, Indian, Canadian
and American counter-terrorism legislation
• In 1984, while visiting India, he was allegedly detained and tortured.
• In 1990, the UK Home Secretary ordered his deportation to India, citing national security
concerns—namely, links to Sikh separatism.
• Mr. Chahal applied for asylum, fearing a real risk of torture if returned.
• He was detained for over 6 years (1990–1996) under immigration law without formal
charges or a fair process to challenge his detention.
Preceding Proceedings Before the ECtHR
1. UK Domestic Proceedings
Deportation Order (1990)
• On 14 August 1990, the UK Home Secretary ordered Chahal’s deportation to India
under the Immigration Act 1971.
• The grounds: his presence was not conducive to the public good for national security
reasons (alleged extremist Sikh activity).
No Access to Evidence
• Because national security was invoked, Chahal and his lawyers were never shown the
evidence against him.
• His case was reviewed by a non-binding, non-transparent Advisory Panel, not a court.
• He could not cross-examine witnesses, respond to allegations, or have a fair hearing.
Habeas Corpus Proceedings (UK High Court)
• Chahal brought habeas corpus applications challenging the lawfulness of his detention
and the deportation order.
• The courts rejected his claims, deferring to the government’s position that national
security prevented disclosure.
• He remained in detention from August 1990 until his release after the ECtHR
judgment in 1996.
2. Asylum Proceedings (UK Home O ce)
• Chahal applied for asylum, claiming he would face torture or death if returned to India
due to his political activities and prior detention/torture in 1984.
• The Home O ce rejected the asylum application, relying again on national security
grounds — without a hearing or full consideration of Article 3 implications.
3. UN Human Rights Committee (Parallel Proceedings)
• In 1991, Chahal also brought a petition to the United Nations Human Rights
Committee (UNHRC) under the International Covenant on Civil and Political Rights
(ICCPR).
• In 1994, the UNHRC ruled in Chahal’s favor, stating that:
“Expulsion to India would put him at risk of arbitrary detention and torture.”
• However, the UK government did not alter its position following this decision.
ffi
ffi
4. Application to the ECtHR (Strasbourg)
• Chahal submitted his application to the European Commission of Human Rights in
1993 (before the full Court reform in 1998).
• The Commission declared the case admissible, and the case was referred to the Grand
Chamber of the ECtHR.
• A public hearing was held in 1995, and the nal judgment was issued on 15 November
1996.
Legal Issues and Court Findings
Article 3 – Prohibition of Torture
Deportation to a country where there is a real risk of torture or inhuman treatment is
absolutely prohibited, regardless of national security concerns.
• The Court examined credible human rights reports on systemic torture by Indian
security forces, particularly in Punjab.
• The UK had received assurances from India that Mr. Chahal would be safe, but the Court
found them insu cient.
• Finding: Violation of Article 3
Article 5(1) – Lawfulness of Detention
Mr. Chahal’s detention was under Article 5(1)(f), which allows detention “with a view to
deportation”.
• Though the detention was lengthy, the Court accepted that it was formally lawful and
pursued in good faith.
• The delay was partly due to Chahal’s own legal proceedings, including his application
to the ECHR.
• Finding: No violation of Article 5(1)
Article 5(4) – Judicial Review of Detention
Chahal had no e ective, independent judicial avenue to challenge his prolonged detention.
• The advisory panel reviewing his case was not independent, held in secret, and could
not order release.
• The Court emphasized the need for e ective judicial supervision, even in national
security cases.
• Finding: Violation of Article 5(4)
Article 13 – Right to E ective Remedy
Chahal could not meaningfully challenge the deportation order, particularly as he had no
access to the evidence against him.
• The UK system failed to provide safeguards compatible with Article 13.
• Especially important in cases involving risk of torture.
• Finding: Violation of Article 13 (in conjunction with Article 3)
Article 8 – Private and Family Life
Mr. Chahal also argued that deportation would interfere with his family life in the UK.
• Since the deportation was blocked on Article 3 grounds, the Court found it
unnecessary to rule on Article 8.
• Finding: Not examined
Conclusion:
• Under Article 50 of the Convention (now Article 41), the Court awarded the following:
• Non-pecuniary damage (for distress and su ering due to detention and threat of
deportation): £10,000 GBP
• Costs and expenses (legal fees, etc.) £35,000 GBP
Margin of Appreciation
• The UK argued that national security justi ed special procedures.
• The Court explicitly rejected any widened margin of appreciation in Article 3 cases:
“Even in the face of terrorist threat, the prohibition of torture and inhuman or degrading treatment
is absolute.”
• Therefore, the margin of appreciation was very narrow to non-existent, especially
regarding Article 3 and procedural guarantees under Article 5(4).
Dissenting Opinion
Judge Jambrek (partially dissenting)
ff
ffi
ff
ff
fi
fi
ff
 • Agreed with most of the majority's conclusions except regarding Article 13.
• He believed that, given the seriousness of the national security threat, the UK’s procedures
—though not ideal—did not breach Article 13.
• He emphasized the complexity of balancing national security and individual rights.
Impact and Legacy
• One of the most in uential ECHR cases on:
◦ Non-refoulement (no deportation where risk of torture exists),
◦ Absolute protection under Article 3,
◦ Fair procedures in national security contexts.
• Directly led to:
◦ Reform of UK immigration law,
◦ Creation of SIAC (Special Immigration Appeals Commission) with special
advocates for secret evidence.
Case: Georgia v. Russia (II) (2021)
Background and Facts
• The case concerns the armed con ict between Georgia and the Russian Federation in
August 2008, particularly focusing on the hostilities during and after the ve-day war in
South Ossetia, a breakaway region of Georgia.
• Georgia alleged that Russian armed forces and a liated South Ossetian militias
committed grave violations of the European Convention on Human Rights, including
killings, torture, destruction of property, displacement, and the denial of return.
• Georgia also claimed that the Russian authorities were responsible for the failure to
prevent or investigate these violations.
Admissibility & Jurisdiction
• The Grand Chamber held that the case fell under Article 33 (inter-State applications) of
the Convention.
• It found Russia had e ective control over the relevant territories after the cessation of
hostilities (post 12 August 2008), even though it did not have e ective control during
the active hostilities (8–12 August). For that earlier period, the Court held that
international humanitarian law (IHL) applies and the Convention cannot be
extraterritorially enforced unless there is control or authority.
• This temporal distinction was key in limiting the Court’s competence over certain claims.
Legal Issues and Violations Found
Article 2 (Right to Life)
• Violations were found in killings committed after 12 August 2008 and failure to conduct
e ective investigations.
• No jurisdiction was found for killings during active hostilities (8–12 August) due to lack of
e ective control.
Article 3 (Prohibition of Torture and Inhuman or Degrading Treatment)
• Violations were found regarding:
◦ Torture of prisoners of war;
◦ Inhuman treatment of civilians, particularly ethnic Georgians;
◦ Failure to investigate acts of torture and inhuman treatment.
Article 5 (Right to Liberty and Security)
• Found violations regarding unlawful detentions and hostage-like treatment of civilians
and military personnel after the active hostilities.
Article 8 (Right to Respect for Private and Family Life)
• Violation found for forced displacement of ethnic Georgians and the systematic
prevention of their return to their homes.
• The Court emphasized that the failure to allow return and provide redress prolonged the
su ering of victims.
Article 1 of Protocol No. 1 (Right to Property)
• Violation found due to the widespread looting and destruction of homes and the failure
to ensure restitution or compensation.
Article 2 of Protocol No. 4 (Freedom of Movement)
• The denial of return of displaced persons also constituted a violation of this article.
Procedural Obligations
ff
ff
ff
fl
ff
fl
ffi
ff
fi
 • Russia failed to conduct e ective investigations into alleged violations, breaching
procedural aspects of Articles 2 and 3.
Article 13 (Right to an E ective Remedy)
• Violation found because the applicants (Georgia and displaced persons) had no access
to remedies to address violations post-con ict.
Margin of Appreciation
• The Court did not grant Russia a wide margin of appreciation, especially regarding
post-con ict occupation and administrative control.
• Once e ective control was established (post-12 August 2008), positive obligations
under the Convention fully applied, and Russia could not invoke lack of control or military
necessity.
Dissenting Opinions
There were several dissenting opinions and partly dissenting judgments from judges who
disagreed either with:
• The temporal jurisdiction cut-o at 12 August 2008;
• The standard of evidence required;
• Or the refusal to nd violations for actions during active hostilities.
Outcome
• Russia was found to have violated multiple Convention rights in the post-cease re
period.
• The case sets an important precedent for the extraterritorial application of human
rights law during and after armed con ict.
• The issue of just satisfaction (damages) was deferred to a separate procedure.

ARTICLES SEEN:

Article 1: Obligation The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
to respect Human freedoms de ned in Section I of this Convention
Rights

Article 2: Right to life 1. Everyone’s right to life shall be protected by law. No 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.
2. 2. Deprivation of life shall not be regarded as in icted in contravention of this Article
when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) (b) in order to e ect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3: Prohibition No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
of torture

Article 4:Prohibition 1. No one shall be held in slavery or servitude.

of slavery and forced 2. No one shall be required to perform forced or compulsory labour.
labour 3. 3. For the purpose of this Article the term “forced or compulsory labour” shall not
include:
(a) any work required to be done in the ordinary course of detention imposed according
to the provisions of Article5 of this Convention or during conditional release from
such detention;
(b) any service of a military character or, in case of conscientious objectors in countries
where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-
being of the community;
(d) any work or service which forms part of normal civic obligations.
ff
fl
fi
ff
fi
ff
ff
ff
fl
fl
fl
fi
 Article 5: Right to 1 Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty and security liberty save in the following cases and in accordance with a procedure prescribed by law:
a the lawful detention of a person after conviction by a competent court;
b the lawful arrest or detention of a person for non-compliance with the lawful order
of a court or in order to secure the ful lment of any obligation prescribed by law;
c the lawful arrest or detention of a person e ected for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed
an o ence or when it is reasonably considered necessary to prevent his committing
an o ence or eeing after having done so;
d the detention of a minor by lawful order for the purpose of educational supervision
or his lawful detention for the purpose of bringing him before the competent legal
authority;
e the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his e ecting an unauthorised
entry into the country or of a person against whom action is being taken with a view
to deportation or extradition.
2 Everyone who is arrested shall be informed promptly, in a language which he understands,
of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this
article shall be brought promptly before a judge or other o cer authorised by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5 Everyone who has been the victim of arrest or detention in contravention of the provisions
of this article shall have an enforceable right to compensation.

Article 6: Right to a 1. In the determination of his civil rights and obligations or of any criminal charge against
fair trail him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to the
extent strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
2. Everyone charged with a criminal o ence shall be presumed innocent until proved guilty
according to law.
3. Everyone charged with a criminal o ence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he
has not su cient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.

Article 7: No 1. No one shall be held guilty of any criminal o ence on account of any act or omission
punishment without which did not constitute a criminal o ence under national or international law at the time
law when it was committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time the criminal o ence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.
ff
ff
ffi
fl
ff
ff
ff
ff
fi
ff
ff
ffi
ff
 Article 8: Right to 1. Everyone has the right to respect for his private and family life, his home and his
respect for private correspondence.
and family life 2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others

Article 9: Freedom of 1. Everyone has the right to freedom of thought, conscience and religion; this right includes
thought, conscience freedom to change his religion or belief and freedom, either alone or in community with
and religion others and in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as
are prescribed by law and are necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or for the protection of the
rights and freedoms of others.

Article 10: Freedom 1. Everyone has the right to freedom of expression. This right shall include freedom to hold
of expression opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring
the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for preventing the
disclosure of information received in con dence, or for maintaining the authority and
impartiality of the judiciary

Article 11: Freedom 1. Everyone has the right to freedom of peaceful assembly and to freedom of association
of assembly and with others, including the right to form and to join trade unions for the protection of his
association interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others. This Article
shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration of the State.

Article 12: Right to Men and women of marriageable age have the right to marry and to found a family,
marry according to the national laws governing the exercise of this right

Article 13: Right to Everyone whose rights and freedoms as set forth in this Convention are violated shall have
an e ective remedy an e ective remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an o cial capacity.

Article 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured
Prohibition of without discrimination on any ground such as sex, race, colour, language, religion, political or
discrimination other opinion, national or social origin, association with a national minority, property, birth or
other status.

Article 15: 1. In time of war or other public emergency threatening the life of the nation any High
Derogation in time of Contracting Party may take measures derogating from its obligations under this
emergency Convention to the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under international law
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of
war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the
Secretary General of the Council of Europe fully informed of the measures which it has
taken and the reasons therefor. It shall also inform the Secretary General of the Council of
Europe when such measures have ceased to operate and the provisions of the
Convention are again being fully executed.

Article 18: Limitation The restrictions permitted under this Convention to the said rights and freedoms shall not be
on use of restrictions applied for any purpose other than those for which they have been prescribed.
on rights
ff
ff
ffi
fi