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Notities INTERNATIONAL AND EUROPEAN RIGHTS LAW (1)

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NOTITIES INTERNATIONAL AND EUROPEAN RIGHTS
LAW
2018 – 2019
Prof: Koen Lemmens en
Paul Lemmens
INHOUDSOPGAVE
LES 1 (27/09) ............................................................................................................................................ 3
LES 2 (28/09) .......................................................................................................................................... 16
LES 3 (04/10) .......................................................................................................................................... 30
LES 4 (05/10) .......................................................................................................................................... 43
LES 5 (18/10) .......................................................................................................................................... 55
LES 6 (19/10) .......................................................................................................................................... 68
LES 7 (25/10) .......................................................................................................................................... 82
LES 8 (26/10) .......................................................................................................................................... 95
LES 9 (08/11) ........................................................................................................................................ 110
LES 10 (09/11) ...................................................................................................................................... 121
LES 11 (15/11) ...................................................................................................................................... 131
LES 12 (16/11) ...................................................................................................................................... 142
LES 13 (22/11) ..................................................................................................................................... 152
LES 14 (23/11) ...................................................................................................................................... 163
LES 15 (29/11) ...................................................................................................................................... 181
LES 16 (30/11) ...................................................................................................................................... 195
LES 17 (06/12) ...................................................................................................................................... 207
LES 18 (07/12) ...................................................................................................................................... 222
LES 19 (13/12) ...................................................................................................................................... 237
LES 20 (14/12) .......................................................................................................................................... 1
LES 21 (20/12) .......................................................................................................................................... 1
2
Les 1 (27/09)
Eerste uur
Good afternoon, welcome to the class of International and European Human Rights Law. So
there is an incredible crowd of people here. So my name is Koen Lemmens, and I will be
teaching this class together with someone else, who is also called Lemmens. I know that foreign
students will think that this is a kind of nepotism, but it isn’t. There are no family ties between
myself and Paul Lemmens. Paul Lemmens is the quite impressive professor that for so many
years taught Human Rights Law at this university. But more importantly, he is the Belgian judge,
or I should correct myself and say he is the judge appointed on behalf of Belgium in the
Strasbourg Court. And he will be traveling a lot to Leuven and so on some Fridays (not all
Fridays) he will be here to teach together with you. So I think this is quite an extraordinary
occasion for you all to meet and to see Paul Lemmens. What we try to do is that he will give
you a perspective from within the Court. Obviously he is not going to reveal any secrets he is
an extremely correct judge so he won’t be revealing any secrets at all, but he has quite good
inside view. What I will try to do is to criticise the Court or to be a little more critical if needed
on the court, which obviously is quite hard for Paul Lemmens, since he is a member of the Court
and he has kind of duty of loyalty to the Court. So that is us, the teachers.
Just one word on you, the students, this year we have quite some students, so I’m already
looking forward to correcting the exams. Usually this is the moment where I get depressed.
This is due to a change in the program, but this is a mere formal change in the program so you
know that the class that was in the past a first master class, moves to the third bachelor year.
But concept wise, nothing changes. But since this is a transitory period, there will be students
from the first master, there will be students from the third bachelor and of course there will be
other LLM students and there will be our Erasmus students. So to all of you: welcome. But no
distinction is made, clearly, when it comes to the content. So the content is the same for
everyone.
If you have questions you can always ask. Don’t be shy, don’t be afraid. I know it’s a lot of people
here. We are going to make this class so boring that within two or three weeks, we can just
have class in a smaller place so there is no need to be afraid to ask questions. So please do that.
So that is a first practical comment.
The second practical comment usually is: Is there any course material? Now there is, and you
will see, and maybe some of you already have them, it’s published with Acco. There are basically
two books. There is a book and there is a booklet. The booklet is called Texts (?) and that’s the
booklet you can use at the exam. Now, the texts are just the texts from the conventions and
the international treaties. So these are the raw material. And that’s the booklet and you can
use it. I am already repeating myself, but unfortunately I learned from students that I have to
do that all the time. Because even in last class you will be asking me questions like: what are
we allowed to use at the exam? ONLY the small booklet. On the other hand you have a more
comprehensive reader and that is called Materials and Cases. And basically you’ll find, for each
class, an outline of the topics that we will discuss. Maybe the outline is more comprehensive
than the materials we’re dealing with, but that’s not so much of a problem. So you have the
outline of each class, and you have cases, that illustrate the topic of the class. This is something
that is extremely useful for you to give some structure to the classes, to give some more
background to what is said in class. But these materials are NOT allowed during the exam. You
cannot bring them with you. So that is the materials. Once again it’s published by Acco so there
should not be any problem as to the availability.
Exam
Whenever things are unclear, whenever I’m going too fast, whenever I’m going too slow,
whenever there is a problem, do raise your hand, please. I’ve been using the word I should not
be using the beginning of the year, the exam. It’s a nightmare, but it’s only in January. You don’t
have to worry about it right now, but what is the exam about? Basically it consists of two
questions. One question is an open question. Usually it’s professor Lemmens (Paul) coming up
with the open question. It’s an essay kind of question. About one page to answer. So being
short, complete nevertheless, is what you have to do.
The second question is a case. And the question will be, and it’s very easy, either we sketch a
case, we give the facts and then we will ask you: suppose you’re a state party, how will you
defend this case? Or suppose you’re an applicant, how would you defend your client? Or
suppose you’re a court, how will you deal with this case? So what you have to show there is
that you master the legal reason. That’s why I highly recommend you to read the cases in the
Cases and Materials. Because the more you read Strasbourg cases, the more you will get
familiar with the reason and the more things make it clear. I know that some of the cases are
quite long, I know that some of the reasoning can be quite particular and you might want to
read some more interesting stuff. But still I would recommend it to you because little by little
you will get acquainted with it and it will help you in solving the answer of the second question.
But at the end of class there will be time and I will read out a case, I will explain how we expect
you to solve a case.
I will post on Toledo a schedule of classes. Because you already know that some days there
won’t be class. E.g. in the week of 8 October there will be no class, neither on Thursday nor on
Friday.
Course
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The question now is: what are we going to do in this course? And basically there will be 3 parts.
But they’re three uneven parts. So the first thing we will have to address, and that’s what we
are going to do today, is to sketch the basic concepts that we need to understand what we’re
talking about, when we are talking about human rights. It’s a conceptual class. And then we will
move on to a first big part concerning the international protection of human rights. So what we
will try to explain is what it means to have international legal orders. So there is a part
international public (onverstaanbaar), how this interacts with national legal orders. So there’s
a part constitutional law to it. But more importantly we will (in a nutshell) sketch a little bit the
international mechanism of it, but with a clear and outspoken preference over the European
system. So the focus clearly is on the European convention and the Strasbourg court, which
seems justified after all because we have a Strasbourg judge amongst us. So that’s a first big
part.
The second big part is a kind of study of some (a capita selecta) of the fundamental rights which
we think are important. Now obviously, within 19 or 20 classes we can’t do everything, so it’s
a selection. So we’ll probably discuss the articles 2, 3, 10 related somehow to article 17, article
8, and most probably, given the fact that it’s so to speak professor Lemmens “hobby horse”,
article 6 of the convention. That would be quite the selection. That is the project of this
semester.
So the only, and the last practical thing I will add, is that I’m not to teach in this theatre and I
have to travel from the Valk to this place. So should I have some delay, please do not run away.
If for some unseen reason I can’t make it, you will be warned in advance. And the same goes
for professor Lemmens who usually on Friday, somehow at noon, leaves Strasbourg and then
runs into Leuven, it can always happen that there are some practical problems. So should there
really be a problem, we will inform you in advance, so please be patient okay?
Oh yeah, VERY important for you: we start at say at maximum 10 past 16h. It’s 10 minutes, but
we call it the academic quarter. Then we move up until 17h. Then you deserve a break. I’ll tell
you why you really deserve that, you need that break. It’s a human right, not giving you that
break is torture. Now the problem is that I’m a lawyer. This means that I’m a streaming service
avant la letter. University feeds me with some money and then I start streaming. So if you don’t
say that it’s 17h, I just continue. I’m like (a Belgian cyclist), I just go, go, go. So please don’t
consider it impolite to stop me.
I think we can go immediately into the heart of the matter. And that is human rights. Somehow
you may have already heard of human rights, and maybe you’re even a human rights activist.
Which is quite, I would say, common because nowadays everyone is a human rights advocate.
Everyone is a human rights lawyer. And I can hear that, you just go to the school here, there is
a primary school, you see these little boys and girls and they’re playing. And whenever
something is said to them that they can’t do, they protest. And I heard already these kind of
toddlers saying: “But it’s my human right!” So everything is a human right and maybe this
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means that the mere fact that we are framing so many in terms of human right, this means
perhaps that human rights is an extremely powerful narrative. And I suppose that few of you
would say: “I’m against human rights”. And if you’re looking at politicians on the international
scene, even the worst violators of human rights, they will all say that they are in favour. No one
is against human rights, everyone loves human rights and everyone violates them. But what
makes this force so powerful?
What makes this narrative so strong? That is a question and while we see that this is such a
powerful narrative, we see that it tends to expand to, I would say, all fields in life. And there is
a tenancy, we will see that later, precisely to criticise human rights. Because people say, and
the Belgian students may know Fernand Keuleneer e.g. who is extremely critical about it by
saying that there is one kind of narrative supporting each and every concept of law, coming
with a kind of neo-natural law kind of position towards the law. But the broader your concept,
your understanding of human rights is, the more difficult it becomes to understand what are
these human rights basically doing.
I think that two major ideas are at stake.
1/ The first one is perhaps the oldest. Historically speaking perhaps the most important. And
the first argument/goal of these human rights is protecting people against the abuse of state
power, against the abuse of the power used by public authorities. That is the first big ideal. And
that’s where human rights and the protection of human rights is related to the idea of
constitutionalism. And this becomes clear if we have a look at the history of human rights, I’ll
come back to that in a while.
2/ So the first thing is protecting individuals against state authorities, against public authorities.
Now, the second point is a little controversial or more difficult. The second point means that
human rights are also there because they tend to protect human dignity. The possibility for
people to live a life in dignity. Now, I suppose that most of you would agree with that, that is to
say, if I would ask if someone’s against human dignity, I think a few of you would raise their
hand. I think that few people would question the concept of human dignity. And indeed we see
in so many bills and conventions the concept of human dignity is important and a bit popular.
This is not so obvious. It sounds good, but what is human dignity? And what does it mean to
protect human dignity? We can read so many things into this notion, which criteria do we have
to decide what is human dignity? Now you may say this Lemmens guy is just not serious, and
you may be very shocked somehow because you would not expect a law professor to say “I
don’t take human dignity too seriously”.
An example, which may give some food for thought. Some of you may have learned it already,
some of you may have not but it is a classic case and it has become the leading case. Outside
of France the case is called Wackenheim against France. It goes back to the nineties. There was
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some trend, back in those days, that people going to games and dance and to local fancy fairs
and what we call “Leuven Kermis” and one of the attractions was the so called “dwarf tossing.”
It is a shameful thing. Basically what it concerned, you have people, which have a disease that
is genetic, they are wearing a protection bomb and then people, who, at least I hope, were
drunk, throw away the person. And the person who threw the most far away or the highest
won. So they literally threw with people. In France everything is forbidden unless you have a
permit and you basically need a permit for everything. You have monsieur le mayor and he
says: no, you can’t do that. So here you have a local authority who is saying that this specific
activity can’t be happening. The point is you need, as a local authority, you need an argument.
And you don’t need the argument saying: it is not fair. You need a legal argument. The problem
of this French mayor was obviously he could not come up with a strong legal argument, so his
argument was: “this kind of activity is a violation of human dignity because this thing is laughing
with people with disease. You can’t do that.” And obviously some of the most shameful periods
in human history, is this one. You would have preaches where people come and have a laugh.
And even in Belgium, you have an exposition where people from Africa where brought into the
exposition and they were shown to the Belgians to the public as if they were animals in a zoo.
So we have a very dark past. And on an emotional basis I could understand why the mayor said
no. But the point is that mister Wackenheim, who is the artist, didn’t agree. He said: what the
hell is this? Which human dignity you think you are protecting? And then off course, you have
a completely different narrative. The argument of mister Wackenheim was that precisely
because you have such a thing as human dignity, he has the right to choose his profession. He
has the right to decide how he is going to make his living. His argument was: I make a lot of
money engaging this activity and people with my disease would probably not find a more
suitable job on the regular job market so I have here an opportunity to do what I like to do. You
may be extremely upset about this, but this is what I want to do. He argues his case at the
conseil d’etat but he lost it. So then he went the Strasburg Court but there the case was
inadmissible for some administrative reason. So, then he went to the court of civil and political
rights, and then the committee found that there was a different treatment, but it was based
on an objective criterium and that, the mere fact that other similar activities were not
forbidden, was not a sufficient reason to conclude that there was a violation of the treaty.
But it is a highly controversial decision. Cause if you think about it, this case illustrates quite
well a kind of problem that pops up in so many other discussions. You can easily exchange dwarf
tossing for prostitution. And you would have exactly the same kind of argument. You can say
that prostitution is in most cases also human trafficking and so on. But you can’t exclude that
some man or women freely decide to work as a sex worker. Now who then would we are or
would we be to forbid the activity? When this runs against human dignity, we say that is goes
against our human dignity. And then comes the problem. Isn’t that the contradiction of the
idea of human rights? The main idea is that you offer a protection against majority. You defend
a minority position against majority rule. And by using the term human dignity, trough the
backdoor comes again the majority rule. Because if we say that some of the activities that we
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don’t like are a violation of human dignity, isn’t that the same as saying it goes against what a
normal majority finds to be the right thing to do? So if a moral majority thinks that prostitution
is a bad thing, then we forbid it, even if you want to do it as a free choice. So this is one of the
things that you should be reflecting on.
And I can only say that the proof that this is an extremely discussion is been given by our French
friends when they voted, and later was also discussed in Belgium and afterwards in other states
and regions, the ban on concealing your face in public spaces, known as well as the bourkaban. If you read the arguments to defence the ban, in the parliamentary debate came up the
notion of human dignity. The French said no don’t use human dignity in the parliamentary
report because they didn’t want to handle the same discussion as in the Wackenheim case. So
the Wackenheim case is, I would not say a national trauma, but it is something like if you can
escape it, please do it.
Nevertheless, we use human dignity a lot. Some scholars have been doing research and said
that before 1993-1994, so before art 23 was incorporated in our constitution, Belgian
legislation hardly ever mentioned human dignity. And then you say a kind of explosion of the
use of human dignity. It has become a very popular human right, especially after WOII. Now
the answer to the question: why is that? Is obvious: We run out of legal arguments and we still
want to forbid something, based on a legal argument. We use the word human dignity. It
sounds good and the first person who says it in a debate somehow wins. I think that there is a
lot of literature on human dignity, and I think that the best quote has been given by a former
judge, president of the Belgian Constitutional Court, who was a professor of law as well, who
was Paul Martens. He concluded the debate by saying: Listen, I think that as a academic, I find
this a highly controversial argument, and I would not be using it. But as a judge I am so happy
that there is human dignity, because whenever there is case submitted to my judgement, and
we as judges just feel that something is not working, but we found difficulties in describing to
what exactly, we can always refer to human dignity. So what is important here for you, is that
you understand, I am not saying that we should not be using human dignity. But we should
realize that it comes with a price. And the price is that you give room for interpretations to
judges. Again, I am not saying that that is a bad thing to do. I am just saying that that is the
consequence of using it.
Now in today’s debate where politicians in whole of Europe are criticizing judges that they are
not respecting their role, that they are politicians in disguise. That they are making policy
decisions that only a sovereign parliament can take. Imposing their worldview on ours. I would
say: it is one or the other, if you, as our politicians do not want this to happen, then they are
under the obligation not to come up that precisely does not decide but leaves it up to judges
to interpreted and to decide and to give meaning to general and vague concepts. If legislators
really use the term human dignity more and more, then this is a political choice. I respect that
choice but then I find it weird that those using the term afterwards complain that judges who
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are giving a meaning, an interpretation that they are making law. So that is my point on human
dignity.
So the first set of human rights that is used against states. And I will develop that after the
break. Second point is human dignity, being a very controversial issue.
Now are all human rights fundamental? And this is a question that illustrates quite well what is
relevant. It illustrates the tendency of human rights to expand and expand and expand. Say a
100 years ago no one would have considered that the right to a healthy environment is a human
right. We see new rights coming up. We see existing right being given a scope that goes far
beyond to the traditional meaning of it. There is discussion about that and some scholars are
saying that maybe we should reduce this to ‘core human rights.’ At Strasburg, which Paul
Lemmens will explain more about, that core that faces such an overload of case, where the
Court is saying: is that really a fundamental human rights issue? Or is this an issue which is not
so fundamental. Given the fact that at the same time we are addressing serious issues such as
the right to life and so on. But here again the problem is a little bit, once you have agreed as a
Court or as a legal community that certain fall within human rights scope, to say some years
later: after all we don’t think this is so important. So I think it will be very hard to go back. This
quality control and this idea is almost an idea that expresses a wish or a priority or a hierarchy
and this a highly contested in the human rights community where on the contrary it true, where
people would rather say that all human rights are a whole and you can’t disentangle them. And
off course there is a serious risk that in deciding what is important and what is not important.
In saying what is the core human rights and what is not, you have once again to face the same
problem as when to decide what is human dignity. You take a common standard and say this is
what really matters to people and this is what is important. The way you dress for example is
that so important? I would say not but that is my standard. And suppose that the university
tomorrow says I have to wear a costume. Let’s say I am gothic and I wear black clothes and
doctor martin boots, let’s say the university says you can’t wear that. The university says that
you have to wear a suit every day then I will do that because I don’t care. And if you say doctor
Lemmens you are already boring enough, wear at least a Hawaiian shirt and slippers to class,
then I will do that cause I don’t care. That is not a part of my identity in a very important way.
But if I am gothic or punk or part of a sub community, and the way I dress is an important issue,
then who am I to decide what is not important. Then the question is: isn’t that running against
the very idea, the very essence of human rights?
Tweede uur
If you have a closer look at the category of HR you’ll see that scholars usually divide them into
3 categories of HR, also called generations of HR because there’s a historical dimension to them.
Some are like the oldest ones, others or more recent.
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1/ And the 1st generation of HR are the political and civil rights and freedoms. So basically these
are rights, civil rights, let’s say rights for everyone. Political rights, as you know, the category of
rights reserved to citizens, nationals and procedural rights, and so on. And these rights are
basically or they have in common that they have a duty for public authorities to extain or to
refrain from intervention. So in other words: the first generation rights are the rights of no
interference, and that’s why I made the link, that is where you can really see the first form of
HR protection. I’ve been discussing human dignity, I have not yet developed the idea of limiting
state power, of disrupting state interference, but here In this first generation, you really see
this concept, you really see that idea of avoidance.
And that is where, and we would stand in the history of HR, we would go back to what is
commonly done, we would go back to the first medieval charters, we would go back to the
Magna Carta, 1215 and we would go back to charters here in our regions. Think about the Blijde
Inkomst, it’s the street you use with your bike all the time, this joyeuse entrée, this joyful entry,
it rises to this medieval charters. And what do they have in common? They have in common
the very idea that the authority of the state (being a duke or being whatever) can be restricted.
And this is what develops further: the Glorious Revolution with the Bill of Rights in England and
then you have the French Revolution in 1789. And the American Revolution ofcourse with the
American constitution and the Bill of Rights 1791. And what distinguishes them and why is that
American-French Revolution so important? Because there you can see for the first time, we get
a comprehensive approach to fundamental rights protection. Medieval charters were often
based on giving rights, not in a comprehensive way. These are not catalogues of fundamental
rights, but they protect some rights, some aspects and they protect some categories of people.
That can be the nobelry, that can be widows, that can be orphans, that can be soldiers, and so
on and so on. But there is not this general idea, this general abstract idea that is expressed so
well like in the French Declaration that states that ‘tous les hommes sont née libres en dont en
droit’. It says every men and it doesn’t refer anymore to a specific type of people or specific
category of people. Everyone is entitled to these rights.
So modern stop reform is this French-American law and there you can see how they influenced
in 19th century all these national constitutions and the Belgian constitution was a hallmark for
the HR protection with the title ‘the Belgians and their rights’ was a very comprehensive (at
that time) document of human right protection. And that goes on for the whole 19th century,
up until the beginning of the 20th century.
But what you see is the focus, the main focus on non-interferences. You have freedom of
expression, which means the state is not going to interfere. You have freedom of religion,
everyone can be catholic or maybe everyone is a Jew but I am a castafarian, I have that right
and you can be a castafarian. It means protection right to life, this means that the state will not
interfere with your life, that means the right not to be tortured, the state will not interfere with
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your physical and mental content. Obviously, fair trial rights are entail obligations for states,
that is: you have to develop a legal system that is fair and that respects minimum rights, but
essentially it was up to saying to a state: do not interfere. So these are liberal rights and liberal
understood in a very passive interpretation.
But there is criticism to them. And this criticism comes up in the last quarter of the 19th century.
It is voiced by Marxist thinkers, by social democrats, by critical thinkers. And there basic
argument is: if you really think that fundamental rights are important, that is to say that noninterference rights are important, so than you should also pay attention to the material
circumstances in which these rights are exercised. So in other words: it is one thing to say that
freedom of expression, freedom of the press is important but what does this mean to people
that call the greed or right? What does this mean for people who not have the means to buy
the paper, or ink, or whatever that they need to print?
What does it mean to say that that you guarantee the freedom of thought and consciousness
and religion if people are just trying to survive, if they are hungry, they are ill or whatever?
2/ Little by little we see the development of what is called the second generation rights. The
social, economic and cultural rights. Rights focusing on the circumstances in which people live.
Now, here, you will see that the relation to the state or the public authorities is somehow
altered. What matters is not anymore so much that the public authorities refrain or stay away,
that they don’t do anything. What matters is precisely that they do things. So 2nd generation
rights bring positive obligations. States will have to develop a schooling system, a health care
system, a system of housing, labour law legislation and so on and so further. And it also means
that those 2nd generation rights have an important economic language. Because the 1st
generation rights are easy: stay away is wat it is. It means you don’t have to do anything. So a
state should not have to invoke budgetarian reasons to explain why it doesn’t apply with first
generation rights. But the question is: can a state refer to budget in order to explain that well I
want what I have? So to what extend can material arguments be used in this debate? So that
is why respect of 2nd generation rights is rather not a black and white matter but a matter of
progressive rights realisation. Progressively you try to achieve goals set forward. So there’s a
budgeting. Precisely through this progressive realisation, this budgeterian there is also a policy
dimension: if you want to bring violations of this kind of right to a judge, judges will be very
reluctant because they will fear that you are instrumentalising him, use them in your political
debates. They will often say: listen, these are policy choices that politicians should decide but
we are judges, we can’t do that. I suppose there is conceptually a difference.
3/ Third generation rights: during the 80’s: solidarity rights, collective rights, which are even
more, I would say, remote from the traditional idea of what . We are talking about rights that
are not rights enjoyed by individuals but by groups. And so typical examples are then: the right
to development, the right to peace, the right to self-determination, .. These are collective
rights. But ofcourse here the question is even more urgent: what are these rights? How are
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they precisely defined? Which duties do they create? Who is going to bear the consequences
of those rights? Where can I claim those rights? Which judge, if any, will decide on your claim?
Now I know that in the Vienna summit 1993 people have said human rights are interrelated,
we can’t just follow this classic division. I do not completely agree: obviously I can see that we
should not overestimate the differences and as we will be showing through our class, the
Strasbourgcourt for example has been really positive obligations in I would say almost every
right of the European convention and those are first generation rights. So even the rights not
to interfere intale obligations sustains. The right not to interfere with someone’s life has a
positive obligation (we will talk about this later in class). The right to a fair trial means that a
state has to invest in a judiciary that works well. Obviously, second generation rights contain
elements of first generation rights, for example: even in the right to ‘housing’? you can’t say
it’s a second generation right and therefore the non-discrimination provision doesn’t apply
because the non-discrimination provision is a first generation right. So there again, you see that
there are indeed links. I can see that for example the right to privacy, the right to a private life,
as protected under art. 8 in the European convention has been used to tackle issues that we
would consider completely second generation rights or even third generation rights, so
environmental issues have been tackled under the umbrella of the right to private life as we
will see. So yes I can see that it’s not a clear division between those generations nevertheless I
do think it is important to keep in mind that there are differences and it is also important to see
this kind of schizophrenia that especially in the European tradition manifesting itself more and
more because the second generation rights are typical for traditional western European social
democratie It comes with a price, and so our conception may be very difference from what you
see in the US where the first generation rights are the most important. The price is positive
obligation: taxes. Because saying that states should be doing things is at the same time saying
implicitly that they should have the means to do things. Only today I read that the for the
bachelorstudent the state is paying 13000 euros a year for you. So you pay 1000 euros en the
Flemish authorities pay 13000. That is huge. I am not contesting that. I think that’s fine. The
alternative would be that you pay 14000. I don’t think you would want to do that. The
consequence is that the taxpayer pays. And here we have a problem because what you want
now is the state paying 13000 euros on top of your tuistingfeed. But when you are working you
forget that and you don’t want to pay taxes. This is contradictive. We all want public authorities
to do everything the only thing we don’t want to do is paying the consequences. In the human
rights, it’s the same. One the hand under the first generation rights we distrust the authorities:
we tell them stay away I don’t want to see you but on the other hand under the second
generation rights we want them to come back. And that isn’t always very clear. And so there I
would say the only thing I can compare this weird position to is the Belgian student. I’m just
saying this for our Erasmusstudents. The Belgian student is an odd creature. The Belgian
student usually leaves home on Sunday evening. We almost have traffic jams in Leuven: the
Belgian student is coming to leuven. And you can hear them in the streets (sound) and he or
she is going to his kot. And very important the trolly: and what’s in the trolly? Clothes: because
mom washed them. And then you have the Tupperwareboxes: no French fries in it but other
12
food: the carbonara … and then they got some money: to spend for their books. That’s
sundayafternoon. On Monday the student wakes up and remembers the human rights class
and he says: no interference right!! No control, no public intervention and that’s on Monday,
Tuesday, Wednesday; Thursday and then it’s Friday and then it’s Friday afternoon. And we can
hear the Belgian student with his trolley and that’s trolley is almost empty and the wallet also.
And the clothes are garbage. There is a duty to wash clothes, there is a duty for parents to pay
for the education of their children and then all off a sudden those two persons have positive
obligations and that’s the way European citizens treat the public authorities. The same way as
Belgian students treat their parents. Keep that in mind. This is something we see also in the
cases coming to court. You see this very ambiguous position.
So this brings me … Now we have more or less the four categories of human rights. The first
two are individual ones. The third category more the collective ones. But the question is: “Who
are the holders of these rights? And here I think that the most outspoken and clear case is the
individuals. And this is what you are going to read if you read for example the European
convention. You will see that is says anyone within the jurisdiction, or that is says all individuals,
so there is not necessary a convergence on the terminology, but there is a convergence when
it comes to the basic idea that human rights are rights that are so intrinsically related to human
nature that everyone precisely because you’re a part of humanity, because you are a human
being, that you have those rights. Obviously, this kind of definition doesn’t help people at all.
But at least whenever you go to the European treaty you know what the human rights are, that
are the rights in the treaty and they are basically given to everyone. Is this important? Yes, this
is important because there is no condition that says that you have to be for example regular in
a regular way, in a lawful way in the jurisdiction of the state. For the European convention,
there is no mean. You’re a human being, you’re a person, whenever you are within the
jurisdiction of a state you can invoke the protection of human rights. I always make with
students the stupid joke and since some months it is not anymore, a joke, because some parties
used the argument in court and afterwards they apologize because they used it and knew they
went too far. If you to the website www.hln.be you can see what people think really. Typically,
the argument is this one: suppose that someone who is in illegally in Belgium is victim of a
traffic accident or another crime. A lot of people say well when this person had respected the
law and wouldn’t have come to this country than all of this would not have happen and so too
bad .. There are people that think that is the way that arguments should have developed and
they are obviously wrong. The convention says everyone. It does not say everyone being
regularly in the territory or in the jurisdiction. It says everyone. So basically all individuals, all
human beings are holders of those fundamental rights. That is not to say that there never won’t
be a kind of distinction.
I said at the beginning of this generational talk that there are political and civil rights. When it
comes to typical political rights distinctions can be made between citizens and not citizens. This
is typical the case by the right to vote and for the right to become a public servant. But you also
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know that this distinction at least within Europe and at least when it comes to Belgium and
European citizens is less important than it used to be. But a distinction in those cases is not
necessarily a discrimination. Obviously also private entities enjoy human rights. So it is weird to
say human rights and then to use it for private entities such as corporations, associations and
so on. But if you think about it, there is no reason why you should exclude them and obviously
there are cases where you consider it hard to consider the corporation alternative for the
human right violation of the person. How would one be able to torture a company. Hard to see
unless you are creative. But freedom of expression of a private entity is not hard to understand.
The right to property, the right to a fair trial, why wouldn’t we extend that to associations. So
there is a lot of case law, also in the case law of the Strasbourg court. Human rights is not only
about human beings, it can also be about private legal entities. If you go into the area of self
determination, right of minorities, the right of indigenous people then obviously you’re facing
those conductivities.
Who is under the obligation to respect human rights ?
The answer is in the first place : the state. The convention says « the high contracting parties »,
public authorities.
Public authorities means each branch of the public authority: it can be the legislative, the
government, the judiciary, local authorities. Especially in Belgium (but in fact this is true for
every federal state or region) it is clear that the internal constitutional organization is not an
excuse to justify non-respect for the convention. When the Flemish region is not respecting a
provision in the convention, the claim will ultimately be brought to Strasbourg against the
Belgian state. The Belgian state can’t defend themselves before the court saying “it wasn’t me,
it was the Flemish government”. That is just an internal affaire, Strasbourg will only check if the
state (as a whole) has respected the convention.
When it comes to cases brought before the Strasbourg court on the Convention of Human
Rights, only state parties can be brought before this court. However, there is a tendency (that
has been existing for decades) of “(un)mittelbare drittwirkung”, a sort of horizontal effect of
the Human Rights Convention. The idea is that it is not so much the public authorities that
violate human rights, it’s rather true that some fellow citizens do it against others. And the
horizontal effects means saying that the state allows citizens to do that, that it doesn’t refrain
people from violating.
Example: privacy and freedom of expression. On the one hand you have a famous movie star
and on the other hand you have a paparazzi. When the famous movie star goes to the beach
there is always a lot of paparazzi who are making pictures and publishing them. The question
is then: Which right prevails? Is it the right of privacy of the star or freedom of expression of
the tabloids? Either the local authorities say that the last one prevails and then the movie star
will go to Strasbourg and say that the state allowed the paparazzi to take the pictures, or the
14
other way around: the press goes to Strasbourg saying that the state sanctioned them, which
is a violation of the privacy.
This is the horizontal dimension. There are cases where you can see that human rights cases
are sometimes very difficult to solve and that there is a clash that is almost impossible. Some
of them are subject of heated academic debates whereby the solution you prefer is the one
you personally feel best with (and not the one you get after thorough study of human rights).
The typical case is that of a landlord when renting an apartment. When the landlord says he’s
not renting the apartment, it’s not violating the law. There is legislation on that. Situation: the
couple that wants to rent the apartment is a same sex couple and the landlord refuses them to
rent. Suppose this landlord is a very religious person who disapproves of homosexual
relationships. Is he obliged to obey the law against his religious believes? This is a discussion of
freedom of religion v. discrimination issues. There is not just one answer to this (what one
person says can differ completely from another person). These kinds of conflicts of human
rights are extremely difficult to solve and don’t have a clear answer to them, other than an
answer in which you say “in my personal views… this rights is more important than the other
one.”
The lesson here is that human rights conflict is so vague that much can be read into them. You
can’t educate people on human rights without implicitly appealing to your own world view, so
everyone in that takes the class on human rights has to reason for themselves and not just
replicate what the teacher says without thinking. Everyone needs to learn to develop their own
convincing arguments.
Les 2 (28/09)
Eerste uur
Good afternoon everyone, I am the other Lemmens. You have seen the other yesterday.
Welcome to Leuven. We are a big group, this is an exceptional year, so it might be difficult for
all of us, for you and for me. Koen will have told you that I am not going to be here very often.
15
Most of the time, I am in Straatsburg, but from time to time I come back to Leuven and teach
whenever is possible. I will talk about a next theme. I will not continue with where Koen ended
yesterday. You will finish the first theme about the concept of human rights next week. I want
to start - and hopefully also finish today - the second theme, which will be about human rights
in international relations and international law.
You can take these texts with you to the exam. It is also allowed to bring a dictionary with you
to the exam. The cases are not allowed during the exam. You don’t have to learn the cases of
by heart, but make sure you read them. Make sure you understand the principles within the
cases themselves.
I will show you what the materials will be, because I do not think that Koen has showed them
yesterday. On the one hand: cases and materials, where you find for each theme an outline
and a number of cases and materials, not the whole written text of what we are saying in class.
Take good notes of what we are saying in class. On the other hand: human rights texts, mostly
treaty texts, like the European Convention of Human Rights, but also other treaties. Koen told
you that on the exam, you can take these texts with you, as long as they are not annotated by
yourself. You can also bring a dictionary to the exam. This is something not mentioned
yesterday, but this is something you can do at the exam. The cases and the materials certainly
not (you cannot bring these with you on the day of the exam). You do not have to learn the
cases and materials by heart, but read them carefully and try to distance out the principles of
the cases and materials and bring that in relationship with what we have explained in class. It
is about the cases and materials that you find in the cases and materials. One last thing that I
should say is that the materials will be available on October, 10th. It will be available in Acco.
Today is more of a theoretical theme. Not concrete issues, although I will read some concrete
cases, but today is more of an introduction of what we are going to examine this year. What
are human rights, and what is their position?
So, what am I going to do? I plan to mention with you five points in this general theme of human
rights and the relation with international law. I will mention the five themes, so we can follow.
The first one is about international standards and international control mechanisms: very short,
just an introduction. Second point: national sovereignty and international protection of human
rights. Third point will be about universality of human rights. Fourth point: human rights and
international humanitarian law, the law of armed conflicts. Fifth: principles of international
treaty law, in the extent that they are relevant to human rights.
1. International standards and international control mechanisms
So, let us start with the first one: international standards and international control mechanisms.
When we speak of international human rights law, we speak of something that was developed
after the Second World War. During the World War and after the Second World War, there was
unwillingness to protect human dignity through international standards and where possible,
international control mechanism. It was the period where the Universal Declaration of Human
Rights was adopted. The World War officially ended in 1945, and in the end of December 1948,
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the Universal Declaration of Human Rights was adopted. It was adopted by the General
Assembly of the United Nations: the Universal Declaration of Human Rights. It is not a binding
treaty, but a proclamation of what the main human rights are. And this Declaration was not
called the international declaration of human rights, but the Universal Declaration of Human
Rights.
Seems
like
it
was
the
French
representative,
René Cassin, who won the Nobel Price for Peace. He argued very much in favour of using the
word universal in that time. I will come back to that when we are discussing our third point.
The idea was that the UDHR would be followed by international treaty texts, by binding texts.
Initially the idea was a universal declaration of human rights, that you would have one
international Convention of human rights, but it did not work out that easily. The World War
broke out and there was tension between the Western countries and other countries. This
meant that Western countries insisted on the protection of civil rights, and the communist
countries were insisting on the protection of economic and social rights, but certainly not civil
rights. This, in the end, meant that there were two treaties, but only adopted many many years
later, in 1966. But, the origin is the UDHR.
2. National sovereignty and international protection of human rights
I turn to the second point: the tension between national sovereignty and international
protection of human rights. Let me start with some general points. When we speak of states
and even states in the international order, states have sovereignty and it is not for other states
or international organisations (IO) to interfere with matters that belong to the domestic
jurisdiction of the other. This is what is said explicitly in article 2 (7) of the UN Charter, the
Charter that sets up the United Nations. It says that states are not authorised to intervene in
matters which are essentially within the domestic jurisdiction of any state. The question then
is: why is that domestic jurisdiction? When does the area start where it is not domestic
anymore? And where other states may be interested in what is happening, that the
international community may be interested in what is happening in a given state. This is
sometimes a matter of discussion.
E.g. China: strongly in favour of a wide domestic jurisdiction. Their argument is that they do not
want interference in the human rights’ situation in their country, because that concerns their
(?), that is a purely internal matter. The United States is more and more also headed into that
direction. They were traditionally always for international control, but always under
international law. President Trump is very much in favour of letting states doing their own
business. No control from outside. We will see in the coming years what that will mean for
human rights. Because, until recently, it was, except for China, rather generally excepted that
human rights do not belong to the area of domestic jurisdiction. As long as we are speaking of
fundamental rights, human rights, this is a responsibility of the whole mankind: for each
individual living in each state.
It is not only in China and in America that there is resistance, even in Europe the situation is
somewhat changing. And this is due to political developments, as you all know, that are taking
place within a number of countries, national policies in respect to international issues. This is a
matter of concern, if you think that human rights, the rule of law and democracy are important.
The Secretary General of the Council of Europe: 47 states (wider than the European Union), is
the organisation that is occupied by democracy and the rule of law.
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The Secretary General produces annual reports, and in the report of 2017, he discussed the
issue of populism. He said in the report: how strong are European checks and balances? I would
like to quote a few sentences from the foreword of the Secretary General. You do not have to
take note. "How resilient are Europe’s democracies? Each day millions of Europeans exercise
their civil liberties, from participating in elections to practising free speech and enjoying the
benefits of living in societies governed by the rule of law. Europe remains, in many parts of the
world, a beacon of democratic progress. Today, however, many of our societies appear less
protective of their pluralism and more accepting of populism. By populist I mean those political
forces which appeal to widespread public grievances while seeking to exclude other voices. We
should be precise: populism is not a catch-all label for every person or movement which rocks
the establishment; misusing the term will only render it meaningless. Rather, it describes those
who invoke the proclaimed will of “the people” in order to stifle opposition and dismantle checks
and balances which stand in their way."
He explains the link between populism and the nationalist and xenophobic parties, by saying:
"In all these cases we see international institutions denigrated in order to court nationalist
sentiment. The central charge is that international organisations, courts and treaties rob “the
people” of their sovereignty, including the European Convention on Human Rights. In reality,
states freely elect to be part of these arrangements because co-operation and shared standards
clearly advance national interests. Yet the compelling case for internationalism is obscured in
many national debates." I think this very well explains what it is all about. Nationalism and
populism, which means the will of the majority, disregarding rights of the minority. Populism is
fuelled by the meaning that there is somewhere an enemy, an IO being part of the problem,
making it impossible for the majority of the vote to decide. Of course, there is the tension
between human rights standards and domestic jurisdiction.
I would like to mention one very clear example of a nationalist movement based on sovereignty:
the referendum that will take place on November 23 this year in Switzerland. The population
will be invited to take a position on the relationship between domestic Swiss law, let's say the
Swiss Constitution, and international law, in particular the European Convention on Human
Rights (ECHR). The proposal posed to the Swiss people: whenever there is a conflict between
both, the Swiss constitution must always prevail. Not compatible with the views of the Council
of Europe. If we look at the international protection of human rights, it is not certain that there
would be enough support to set up an international control mechanism to draft international
standards. And it is telling to return to circumstances in which the standards were adopted. The
Second World War was of course the end of a whole development, in particular minorities were
not sufficiently respected.
Okay, these were some general ideas about the tension between national sovereignty and the
international protection of human rights. I would like to, in a second point, mention two
examples of where human rights can be the basis or interference by states or IO in domestic
matters, domestic situations. I am now not speaking of legal issues, but political military action
inspired by human rights. I would like to mention two issues: that is one, economic measures,
and secondly, the use of force, the use of intervention. I will not say too much about it, because
this is highly political. The views on these situations have also changed.
18
Let’s speak about economic measures. There was a time where in every agreement the EU and
the European member states concluded with third states, agreements on cooperation between
states. There was a time where in all these agreements, there was a human rights clause,
considered an essential part of the mutual agreement. This meant that whenever a human
rights' issue became a concern in the other country, then the EU was entitled to start
discussions about the human rights situation. If no solution found, it was accepted that the EU
could even suspend cooperation with that country. This has been applied to two cases. There
are political reasons to not go that far. But it is an example where the EU said: "We consider
human rights important and we want you to consider human rights important as well".
Now, from a political point of view, the EU is not emphasising these points of view any more. I
am not saying they are disregarding human rights, but there were sanctions, or it was possible
to encourage states to do something in favour of human rights.
*Student asks question (not understandable in my recording)*
What is also possible: economic sanctions. They can be imposed for a variety of reasons.
Sometimes, the violation of human rights is a ground to impose economic sanctions (e.g.
prohibiting import from certain countries). Economic sanctions can be imposed by international
organisations (e.g. the UN or the EU). Sometimes even by individual states. Then they are called
unilateral sanctions, unilateral coercive measures. E.g. United States have, for many years,
insisted to impose unilateral sanctions against Cuba. The idea may be good but there is also the
possibility that the effect of economic sanctions is not so good for HR. The effect is not the
government, the violator the human rights, but the local population that may not get essential
goods any more from other countries - when import to or export from other countries is no
longer possible. This creates a problem for the local population.
For that reason, there is the issue of the legality of economic sanctions is examined on
international level, especially by the UN. Is this still an acceptable practice, an acceptable tool
for defending values such as human rights? The idea was, first of all, when we speak of the
legality of economic sanctions, they must follow the rules, they must be authorised by the UN
Security Council (UN SC). Unilateral sanctions that would violate international law are not
compatible with the UN Charter. But, even if there is a decision by the UN SC and you do not
find it an important condition, then there is still the effect of the economic sanctions on the
enjoyment of human rights. There is a balancing process that should ideally take place. Are the
sanctions effective? Do they bring the results that we want to achieve? If not, we should ask
ourselves the question whether it is still necessary to impose these sanctions (because they
have an impact on the local population)? Is the effect not more serious than the benefits of the
economic sanctions? The reports of the committees of the UN do regular checking whether the
regime is still proportionate with the human rights. Legal proportionality is in every aspect of
human rights. The sanctions should be proportionate, otherwise they are illegal. This is one
example of using human rights to interfere in what is happening in order to protect the local
population.
The same may be true for the other example, the use of force, military interventions. In fact,
interventions, when they are based on protecting human rights, they are called humanitarian
interventions. Nowadays not used a lot any more. This has happened a few times in the past. A
famous example is Kosovo in 1999, after the end of the Jugoslav war, there was still tension in
19
Kosovo between two communities (the Albanian community and the Serbian majority). The
NATO decided to bomb Serbia. This is an example of an armed intervention, which had been
contested at the time, because there was no UN SC Authorisation. Some said this was a clear
violation of the international law.
Since then, there have also been other humanitarian interventions, like Libia in 2011. But since
then it has stopped. There have been calls for interventions in Syria. This has not yet happened.
Because, in Libia it had not been a success. The intervention did not have the results that they
expected, so there was hesitation about whether or not they want to use these humanitarian
interventions. You are starting a war on the other side of the country. They felt like there were
rules lacking to determine whether this was possible or not.
In your materials you will find report by Canadian government at the time: when can and when
should humanitarian intervention take place? They put humanitarian intervention in a much
wider context. They used terminology of the responsibility to protect. If you see the
abbreviation R2P: the responsibility to protect. What is the idea of responsibility to protect?
The idea is that every state has responsibility to protect its civils. Each government has this
responsibility and should do its work. If government violates human rights of its citizens, other
states may intervene, may throw concerns. But not immediately with an armed action. That is
not the idea. There should be gradual development of actions, starting of course with
discussions. Or even before that, prevention, creating a climate where human rights violations
should not take place. Not to forget, once the armed intervention is over: rebuilding. Otherwise
we would leave the country in a terrible situation. This is the big mistake with the intervention
in Iraq. There was no plan to build a new society in Iraq. It is important that, before the
intervention starts, they already have plans for rebuilding.
Okay, that is my second point about national sovereignty and international protection of human
rights.
3. The universality of human rights
Third point: the universality of human rights. As I said already in the beginning, human rights
are conceived as universal rights. Universal in this context means that human rights are rights
that exist, and therefore have to be observed in every place of the world, and for everyone.
Everyone's human rights, everywhere. That is the idea behind the UDHR. Somewhere in the
'90s, we have had the beginning of the notion of universality. And that came mostly from SouthEast-Asia, where these countries said that human rights is a western notion. It reflects western
values. We in the east, we have other values and are not interested in liberty, democracy
western style. We want our society to function well on the basis of other principles. This was
thus a sort of attack on the universality of human rights. Not insignificant, because at that time,
there were preparations for a world conference in Vienna in 1933 (last conference on human
rights). The idea of this conference was to underline universality, to underline the importance
of human rights, and to set forward in bringing states to respect human rights. But this sudden
attack of South-Aast Asia, the energy was lost. The governments were trying to defend their
values. The world conference in the end did not make any progress.
Actually, people began to study whether these views of human rights are universal. Some: no,
not universal, different views on human rights everywhere. Not only human rights in western
20
side of the world. It is true that in 1948, there were a lot of colonies, and not independent
states in Asia and Africa. These colonies were not represented by their governments because
they belonged to the west. There were loud voices, not only in Europe, that defended very
much the UDHR. One should not overestimate the idea or argument that human rights are
western rights. Not a valid argument. Nowadays, there is another attack on the universality of
human rights, but an attack of another nature. On the international forum, you see that this
attack is loud by Russia. It is the idea that they think that human rights are incompatible with
national values. Values in the sense of moral values and in Russian eyes traditional values of
the Russian society like sexual matters, family relations. Tension. They do not want to know or
hear about rights of homosexuals, or families where you have wife working and not at home
taking care of children. Still the view in a lot of countries.
Russia started a campaign in the UN council in 2009 to put the idea of traditional values on the
agenda. Not a successful campaign, but they succeeded in the sense of putting it on the agenda.
The result: showing disagreement on the position of traditional values vis à vis human rights.
Traditional values should not be used to undermine human rights, but to contribute to human
rights. I would like to illustrate this with one case that has recently been decided by the
European Court of Human rights (ECtHR). It is the case that shows a clash between European
values and national Russian values. It is an interesting case, but not in the Cases and Materials.
You can find it on the website of the ECtHR. Judgement June 20, 2017 Bayev and others v.
Russia. This is a case about regional laws and federal laws in Russia that prohibit propaganda,
activities in favour of homosexuality among minors. To protect minors against homosexuality.
In this case, there were three gay activists who demonstrated in different places. They were
fined, because violation of Russian laws. This ended up in ECtHR. They argued that their
freedom of expression has been violated. There was an interference of their freedom of
expression. Was this interference justified? Arguments by the Russian government to justify
interference imposed on these actors. The government gave three arguments:
1. Protection of morals. Here you see the tension between traditional values and European
values. The government argued a lot of things: this is about family matters, we want
traditional families. We do not want relations between homosexuals. There is a majority
view in Russia against homosexuals, and we are protecting that view of the majority of
Russia. This is of course not the best argument to invoke before the ECtHR. ECtHR:
traditional values can, and must sometimes be protected, but not to undermine the
fundamental rights who do not agree with these traditional values of the majority. There is
no human rights protection if the minority can only enjoy those rights that the majority
wants. There is something higher: there are fundamental rights. In Europe protected by the
European Convention on Human rights.
2. Protection of health. But we cannot see how health can be protected.
3. Protection of rights of others, in this case the rights of minors. Clear rejection of this
argument by the ECtHR. ECtHR: Russian government is trying to say that by allowing this,
majority will be influenced to become homosexual as well. This is not true.
All in all, the conclusion of the ECtHR:
1. Advanced aims not reached by measures taken
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2. The whole system reinforces the stigma and prejudices, which is very unfavourable to a
certain part of the population.
 6 against one (Russian judge, who generally speaking is not against human rights and
often votes for the violation of human rights. It is not someone who is always defending
the government): violation of the European Convention. There is a European public
order.
Okay, high time for a break.
Tweede uur
4. International humanitarian law
We’re still dealing with human rights in international relations and in international law. And I
would like to turn to my 4th point: human rights law and international humanitarian law.
International humanitarian law is the law of armed conflicts. And armed conflicts do not fit that
well with international human rights of course. For many years, a lot of people thought that
these were two different bodies of the law. Thinking that one does not have anything to do
with the other. But, there are more and more instances where during armed operations
interferences with human rights take place. And organizations for the victims organize
themselves to make human rights claims out of what has happened. We may bring these claims
before domestic courts and even before international courts bv. ECHR.
So the first thing that arises: What is the relationship between the two bodies of law? You have
international humanitarian law, which focuses on all sorts of activities, which take place within
armed conflicts. Some deal with rights of individuals, some have the effect of interfering with
the right of individuals. You have international human rights law that protects the right of
individuals and puts certain obligations.
Negative obligation: obligation not to do something. Positive obligation: obligation to take
measures in order to protect human rights. There may be an overlap between the two systems:
that both protect individuals. One in general, the other one in an armed conflict situation. And
it is not so difficult to find ways to reconcile them both. But what if international humanitarian
law allows more for the states to do in so far they restrict human rights, than they would
normally be able to do under international human rights treaty.
That is the question that is been put before a number of judicial bodies and I would like to
mention two: international court of justice and the ECHR. For the international court of justice,
you find in your materials an opinion that was adopted in 2004 relating to the legal
consequences of the construction of the wall to the occupied Palestinian territory. The
protected borderline between Israel and Palestinian occupied territory and the effects on
human rights of these people living in the occupied territory. It’s a well-elaborated advisory
opinion in which the international court of justice, which is the court that deals with
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international law, where it sets clear standards. It says that in an armed conflict, or in an
occupation following an armed conflict, human rights conventions remain applicable! It is not
that they do no longer exist. So states can still be held responsible for human rights violations.
So they don’t have immunity whenever there is an armed conflict. There is something special
about conflicts in human rights law: the treaties allow for derogations in certain exception
situations including times of war. The state may notify to the secretary general council of
Europe that it is derogating on certain provisions of human rights. That does not mean that
they are absolutely inapplicable, but the standard of protection becomes much lesser in times
of war. But you have to make such a declaration of derogation. If you don’t do that: the
convention is fully applicable. Then we come to a situation where the convention is still
applicable, there is no derogation.
You have these 3 situations of possible interaction between armed conflicts law and human
rights law.
1/ There are in the first place certain rights that are only in international humanitarian law,
because they find place only in situation of armed conflict. In that case, because these are rights
that protect individuals, it is obvious that they have to be respected in times of war. The issue
of incompatibility with human rights has not arised.
2/ Secondly, there may be rights that are exclusively dealt by human rights. Armed conflicts say
nothing about it. It doesn’t say: restrictions of these rights are possible. In that case, human
rights law remains fully applicable. In the context of armed conflicts will play role when it comes
to deciding whether interference is necessary. If necessary, then it’s in that context. That is
important to the rules of human rights law.
3/ And finally, that is the most difficult category. Some rights may be matters of both
international human rights law and international humanitarian law. And international
humanitarian law might give more possibilities for restrictions than human rights law. In that
case, says the international court of justice, international human rights law must be seen as the
lex generalis, and international humanitarian law as the lex specialis. In that case, international
humanitarian law has priority over international human rights law when there is a real conflict.
International court of justice applied these principles with respect for a number of human rights
that could be violated in the Palestinian occupied territory because of this possibility movement
of going to school etc.
This case came before the ECHR ** 16/9/2014 case: Hassan case. Hassan was an individual (not
a soldier) living in Iraq during the occupation of Iraq by the US and his allies. Hassan presented
a suspicious conduct and the British forces arrested him and detained him in a camp. Not
because he committed a crime, but for security reasons. Whole lawsuit coming out of that.
Hassan also got killed, but that’s another issue. Our case is about the detention of Hassan. The
23
British government said: in times of armed conflict, there must be a possibility to detain persons
for purely security reasons. Whereas Hassan brother argued: I don’t read that in the text of the
convention. Art. 5 of the human convention: protect right of liberty, and §1 states: deprivation
of liberty is possible only in a limited number of cases listed in A,B,C,D and E of art. 5 §1. If the
case does not fit in any of these categories, then the conclusion must be that the detention is
incompatible with art. 5. The court agreed that the situation of Hassan did not fall within any
of these categories. So the question was: Should we then conclude that the detention is
incompatible/violation with the convention, or is there a way out for the British government
based on international humanitarian law and armed conflicts? And in this case the ECHR, taking
into account the reasoning of the international court of justice: interpreted art. 5 of the
Convention as allowing implicitly an additional reason for detention in times of armed conflict.
This is absolutely not the way the European court would deal with such cases in ordinary
circumstances. But it illustrates that even the European human rights court, that that court is
even prepared to accept that international humanitarian law may authorize more restrictions
to human rights in times of armed conflicts than would normally be possible. It is not that the
European Court says: the European Convention is incompatible with international
humanitarian law and therefore it is been put aside. No. It says: we interpret the Convention
itself as allowing for an additional exception that stems from international humanitarian law
and so there is no conflict because implicitly international humanitarian law is read into the
Convention. There was a very wide majority of the Grand Chamber of the Court. So this is a
matter that is not clearly a theoretical issue.
The fact is that Human Rights law is considered to be applicable in times of armed conflicts is
not so self-evident and this allows victims of alleged violations of human rights to claim the
respect of human rights before the domestic national courts. There are a lot of cases pending
before British courts against the British army for the harm that the British army has done while
they were operating in Iraq or in other countries. And this is also one of the reasons why the
British government at the moment it was not so much in favor of the European Convention of
Human Rights. They say: it is not possible that our sons who are fighting for our country
somewhere else in the world, that they should be held accountable for what they have done
under the rules of European Convention of Human Rights that for us is not even applying not
outside of Europe and certainly not in other parts of the country. Some government ministers
said this is done in a way to make it comfortable for certain lawyers who are living from these
kinds of cases. But it’s quite clear that this was not so much expected that the European
Convention could be applied outside of Europe and secondly that it could also be applied in
times of armed conflicts.
5. Principles of international treaty law
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Let me turn to the last point, point 5: some principles of international treaty law. We are dealing
for most of the time this year with the European Convention on Human Rights, a treaty. It’s
called convention, but it’s a form of a treaty. And, as you may know, there is in international
law a specific treaty that is dealing with treaties, that’s the Vienna Convention on the law of
international treaties. That is a Convention from 1969 that in fact codifies principles that were
already generally accepted in international relations between states as being the principles that
govern all treaties, normally including Human Rights treaties. But of course any given treaty can
derogate from the general principles to the extent that this is not the case that are the general
principles of the Vienna Convention and the law of treaties that are applicable.
I would like to mention two issues. There are more issues mentioned in your outline, but I will
discuss only two: (1) the interpretation of treaties and (2) the denunciation of treaties.
(1) The interpretation of a treaty is something that is governed by the Vienna Convention,
namely in the articles 31, 32 and 33. And you should pay due attention these articles and in
particular in article 31 and 32. Let me briefly explain what these provisions say.
- Article 31 contains the so called “general rule of interpretation.” Actually I can say
general rules, but it is in contrast with article 32, which contains a supplementary means
of interpretation. So, the general rule is much more important than the supplementary
means in article 32. What does the general rule say? I will read §1: “ A treaty shall be
interpreted in good faith (that’s one element) in accordance with the ordinary meaning
to be given to the terms of the treaty (that’s another element) in their context
(obviously the other articles of the treaty, perhaps also wider, the preamble of the
treaty) and in the light of its object and purpose (that should be a guide principle when
it comes to the interpretation of a treaty).” §2 explains what is the context and §3 says
which other elements should be taken into account besides the context. That is, for
instance, all sorts of other rules of international law that could be relevant. So, what is
important? Terms of the treaty, context and object & purpose. I come back to object
and purpose, because this is very important when it comes to the interpretation of the
European Convention on Human Rights.
- And then we have article 32: supplementary means of interpretation. And here in
particular, there is a reference to the preparatory work of the treaty. What was the
intention of the drafters of the convention at the time when they were drafting the
Convention? But it’s only a supplementary means of interpretation. What does that
mean? You can have recourse to the preparatory work. When the interpretation
according to the general rules leads you nowhere, so let’s see in the preparatory work.
Or, when the general rule would lead to a result that is manifestly absurd or
unreasonable. Then we also say, this is not possible. Otherwise, you don’t have to go to
the preparatory work and in this respect; the interpretation of the treaty is somewhat
25
different than the interpretation of a domestic statute. If we look to the intention of the
drafters, we go very quickly to the preparatory work. Very often you don’t have to look
to the preparatory work at all, because often it is not so easy to find the preparatory
work.
- Article 33 says that when a treaty has been authenticated in two or more languages,
then you have to find the interpretation that best reconciles all the languages. That is
not easy. You have to read all the varies language versions and then come to an
interpretation that reconciles the best. For the European Convention on Human Rights
it’s easy, you only use the French and English version. I repeat, you only use the French
and English version. There are no other versions. There is no Dutch text of the European
Convention on Human Rights. If you read the Dutch text of the European Convention, it
is probably the translation made by the minister of foreign affairs at the time when the
European Convention need to be approved by the Belgian Parliament. That’s an
unofficial translation. There may be mistakes in that translation. It is good to use it, but
you need the French and English version for the true meaning of the Convention.
I would like to give you a few examples of what all this means in practice:
A) One is the interpretation of the Convention in the light of other relevant treaties.
That’s a case that is referred to in your outline, a judgment of 2008 – Demir and Baykara
vs. Turkey. This was about the interpretation of article 11 of the European Convention
that’s about freedom of association including the freedom of union association. In this
case there were union member that said that the Turkish state did not give enough
opportunities to unions to defend the rights of their members, the employees, the
workers. Actually the complaint was about a very precise question: whether or not
Unions should have the right to enter in collective agreements with employers-humans
whenever such collective agreements exist. And this right to participate in such a
discussion scenario to come to such agreements is explicitly guaranteed by the
European Social Charter. A Charter on economic and social rights existing within the
Council of Europe but different from the convention on Human Rights. And Turkey, the
respondent state in this case, said “We know that that’s in the European social charter
but you European court are competent for the European Social charter and we do not
ratify that jurisdiction of the European social charter. We don’t accept it. That provision
of the European social charter is not applicable in Turkey. And so a big risk for Turkey
was that the European court would read into article 11 of the European convention a
provision that the other charter is not binding in Turkey, but could come binding upon
Turkey by article 11 of the European Convention. And actually that is what the European
court did. The European Convention said: “We have to read the European Convention
on Human Rights in the light of the general context including the consensus of the peers
from international practice and we see that in a later treaty such as the European social
26
charter Union Rights are described as rights to enter into agreements that are collective
binding. We read that into article 11. Turkey doesn’t recognize that, so therefore a
violation of article 11. You can imagine that Turkey was furious about this reasoning.
And it must also be said; the true international lawyers are mostly also very critical about
this judgement of the European Court. But this is not really important to the principles,
it is now second law.
B) Second example. I told you that the Vienna Convention on the law of treaties
provides that attention should be paid to the objects and purpose of the treaty. And for
the treaty on Human Rights the object and purpose is to protect rights of individuals.
It’s not about reciprocal rights and obligations between states. That’s not what the
Human Rights treaty is about. Each state recognizes rights of his citizens, others and
accepts that it is bound by obligations related to these rights. That is an important
principle underlined the interpretation of the convention. And especially where you
have a treaty that is drafted in relatively vague terms, like the European Convention.
What does that mean the right to respect private live? What does that mean private
life? What does the right to affair trail mean? All the elements are vague and they need
an interpretation by a domestic court or by the European court on Human Rights. Some
time this goes very far and I like to show you one example in the case of GOLDER. It’s
one of the oldest cases that came before the European Court in 1976. It is mentioned
also in the outline and we come back to this case when we discuss the right to affair
trail. But to say something now about the case.
This is about the access to the court. This right we do not find literally guaranteed in the
convention, not in article 6 that is about procedural rights. Yes, all sort of rights are
available, but the right to bring a claim before a court is not guaranteed. And this was
the issue in GOLDER. Someone wanted to bring a claim before a court, it was a prisoner,
he needed the permission of the ministry of justice and the ministry of justice decided
to not give the permission, so he could not bring the case before court. And here the
European court on human rights gave a very long explanation about the interpretation
of article 6. Golder is of 1976. The Vienna Convention of the Law of Treaties is of 1969,
but was at that time not ratified by many states and yet the European Court is applying
the standards of the Vienna Convention of and paid very much attention to the object
and purpose issue. They said: “This is a treaty protecting Human Rights”. How can
human rights be protected if you cannot go to a court for the protection of human
rights? This falls also under the principle of the rule of law, the general principle of the
international law. If you have rights, you have to be able to enforce these rights. And
so, on this basis, on the basis of the law analysis on the object of purpose, the court
came to the conclusion that article 6 guarantees the right of access to the court. Having
said that, the court said that in the end we come to a clear conclusion that on the basis
of the text of the treaties, object and purpose and other elements, the context and
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therefore we stop here with our reasoning. We don’t have to get into an analysis of the
preparatory work, not necessary.
This is the correct application of the treaties but what you don’t know is that the whole
argument of the government of the UK before the court was based on the preparatory
work because they knew they could argue that if there was one thing that the drafters
of the convention have excluded and it was the right of access to the court. They did
not put it in the convention but this could be concluded from the preparatory work and
the court was fully aware of that, of course. But we are able to say on the general rule,
we come to a clear conclusion we don’t need the preparatory works, they did not have
to go into the preparatory works, the main argument of the British government. We
come back to that on a later moment more in detail when we retake this, the right of
access to the court.
I would also like to mention that object and purpose of the EU Convention of any Human Rights
treaty also means that in particular for the European Convention its a standard formula that
the European Court uses that the European Convention guaranties rights that are not
theoretical and illusional but practical and effective, a sentence that we will read in many of
the cases that you will find in the casebook. Practical and effective, that is also a guiding
principle of the interpretation of the articles of the Convention which often leads into a broader
interpretation rather than a narrow interpretation of the Convention because you are not going
to make rights very effective if you are giving them a very narrow interpretation. This allowed
the European Court to adopt over the years an interpretation developing the European
Convention. You will see it yourself when you read in the cases and materials.
(2) So far for the interpretation I said and I would like to say a few words about the denunciation
of a treaty that is pulling out of a treaty. Is that possible? Most of the Human Right treaties do
not contain an admission allowing the States to unilateral leave the treaty. Is it possible for a
State to do so or not? The Vienna Convention article 56 says that if the treaty itself does not
allow this, the principle is that you cannot denounce the treaty. There are exceptions; the
exceptions are when the parties intended to admit a denunciation or when the right to
denunciation is implicit in the nature of the treaty, all very vague. The principle itself is a bit
strange. What if a state does not want to be bound anymore by a treaty, it cannot go out?
Totally impossible? That’s the Vienna law of the treaties. In human rights law, some states, in
particular some states in Latin America have denounced various treaties. It’s not good for their
reputation. But for instance, the UK, maybe after the Brexit, they will think about pulling out of
the European Convention. So the issue is going to arrive, maybe also for the European
Convention of the Human Rights. It’s not a theoretical issue but it has to be examined on the
basis of these principles and I don’t think the Convention allows for denunciation. It would bring
up difficulties because the countries that denounce put itself ipso facto out of the Council of
Europe. Therefore a denunciation will not happen easily.
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Okay, this is another aspect I wanted to explain to you of international law as applicable to the
international law of Human Rights, in particular the European Convention on Human Rights.
Okay, let’s stop here.
Les 3 (04/10)
Eerste uur
Good afternoon. Before we move on, any questions, is everything still clear?
Last class there was Paul Lemmens, so you already met the second teacher. What I want to do
now, is to discuss the international, that is to say the UN and the regional frameworks dealing
with HR protection. But before I start that, I still have to finish my discourse of the first class
which was on the general concepts of HR.
And if you remember well, I think we discussed the issue of who is under the burden of
respecting human rights. And obviously, and I think that is where I going to stop. It’s all about
29
public authorities in the first place and I think that I already indicated that this is the rather oldfashioned view on HR. Whereby HR are used in a vertical relationship between citizens and
public authorities. Things have changed… There is a new trend, I try to link it to the German
concept ‘Drittwirkung’, there is this new trend of horizontal application of HR. In this idea, is
that if HR is about protecting certain values, if it is about the controversial notion of ‘human
dignity’, then it follows that the actor violating those rights, not respecting that human dignity,
is not after all that important. What really matters is the violation, not the qualification of the
perpetrator. If this holds trough, then we can as well apply HR in horizontal relationships. Then
maybe I can say person X/Y or company X/Y is not respecting my HR. And so now we have this
very complicated of horizontal application of HR.
The thing that complicates the whole issue is that to the country of public authorities that
cannot say: “hey, I have HR”, here the other persons can say that they have HR.
That’s where we finished the discussion referring to the whole issue of anti-discrimination law.
Now here, in the reader of the outlines you’ll find other examples.
Example: Think about the Pla and Puncernau v Andorra is already something remarkable
because there are not that many cases against Andorra. It all concerned the interpretation of
a will, someone is dying, there is a will and years later there is a whole discussion in the family
on the fact that when the testator making up the will used the term children. Whether this
meant natural children (born within the family) or whether it could also include adopted
children. And if not, whether this would be a violation of the non-discrimination procedure?
Here we have a case whereby HR are used to interfere with the personal will. Literally the will
of a private individual.
Other example: the Swedish satellite dish case which is about the internal rule in a Swedish
apartment building which says that no satellite dishes are allowed. One could easily argue that
satellite dishes are awful things and that are aesthetic reasons not to allow those dishes. But of
course, we could easily imagine if this sort of thing would happen in Belgium we would be highly
susceptive: ‘are we really caring about aesthetics of buildings in Belgium?’  You could easily
see that is an indirect way to avoid that certain people rent apartments in their blocks, by
example immigrants (who love satellite dishes). Because 20 years ago, the internet wasn’t as it
is now, satellite dishes were the only way to receive Middle-Eastern channels. You could say
this is a private, horizontal relationship. This is about a landlord and a tenant. Should we apply
HR to this kind of cases? There are no public authorities involved.
Yes, we can. This is a new way, but it is not contested. Private individuals/entities can be barriers
of the duty to respect fundamental HR.
Within that area of you will see that there is a new and vast area of scholarship and rules that
developed. This is the whole discussion on corporate social responsibility. Here the idea is that
it remains still very vague. The point is that when you take a look on actual globalization and
connected evolutions (you don’t need to be an expert on economics), you can see that there
30
are transnational companies, ex. Apple. This is way beyond the GDP of many states. These
transnational companies behold often more power than states. This economic power, capacity
to lobby and influence norms. European standards on for example the car industry are made
with previous contact between the industry and decision-makers (=lobbying). So, if we knew
that, shouldn’t we then not think about involving these corporations in our HR discourse? This
is obvious when it comes to labour standards, environmental standards? Eg. in Africa, Shell
involving in the story is more effective then involving states. Eg. Involving workers rights in the
textile industry, you could oppose things to Bangladesh authorities, wouldn’t it be more
effective to involve the companies directly?
This is a new evolution, where there are a lot of soft law initiatives (eg. UN-principles). You can
also see that the whole discussion there is that you have to make extremely powerful
people/companies respect norms. The power is on their side. You never know to what extent
they only do what is easy for them. It is clear that this area in the years to come is going to
develop further.
Last point on the HR as obligation: there is a discussion on or fundamental HR can be waived.
It’s a very complicated issue and if you take a traditional Belgian/civil law approach to HR, the
answer would be quite clear: HR are d’ordre public. (they constitute the basic values of the
legal order). This implies that art. 6 BW that you can’t make agreements to deviate of principles
that are of public order. Theoretically, you can’t make contracts, or you can’t waive but that
would to highly theoretical. In practice this is unrealistic if you consider the ever-expanding idea
of HR. And I’m just going to give an example: reality television (Temptation Island, Big Brother).
If privacy is a fundamental right, and if it is really of public order, then of course no one could
sign an agreement to participate in these kinds of shows because it would be a violation of
privacy. And therefore, be a violation of art. 6 BW and the agreement would be ‘nulle’. That is
of course not what is happening. Why? Because we accept that HR can be waived. Waiving the
right to go to judicial court: arbitration clauses are accepted. A private agreement can waive in
case of disagreement on the implementation of a contract, we decide that the discussions will
be submitted to an arbitrator. This is legal. Can be waived when it concerns a precise aspect,
when it is unambiguous, when it is clear. The second related point is obviously the point when
the HR relativity is not so much a point of waiving rights and here again the example of the
press and the celebrities.
Clash between fundamental rights/HR, how do you have to deal with that? If you look at the
EHRM, then it is a kind of balancing exercise. It is about striking affair balance between the
competing rights and what it tries to do, in some cases it already developed a constructive case
law, is creating standards that should be considered when it comes to doing the balancing
exercise. This in order to avoid that the balancing exercise becomes just judges deciding. They
narrow it down by saying that in the balancing exercise we consider the behaviour of the
applicant, the severity of the sanction, the importance of the interest at stake. We will develop
that further when we discuss art. 8-9.
31
That was the general point of the conceptual approach of HR.
There is one remaining thing: “you’ve now been talking so much about rights? What about
responsibilities? Human duties? Obligations?” If you go and have a look at the treaties and the
convention, there is little reference to such idea as obligations. You can find it in some regional
treaties, but you would definitely not see it in the European context. It is in art. 10 of the
Convention on the freedom of expression, where it is said that the right to freedom of
expression entails certain responsibilities. What are these duties? Are there human duties? The
question is somehow philosophical. More and more I read this in popular press/discussion. Paul
Lemmens will tell you that there is criticism on HR. We are not anymore living in an era where
HR are not anymore uncontestably approved by the population. And what you see sometimes
that people say: “it’s not fair that you are always talking about people having rights. You should
also talk about people having duties.” I think the discussion is very complicated because on the
one hand it is quite obvious that rights and obligations go hand in hand, that is not a very
conservative idea. If you listen/read the text of the Sozialist International, you will hear that
they write that rights and duties are related. So yes, it is philosophically not stupid to think that
rights entail duties. However, we should recall the origins/the basic idea underpinning HR and
you will remember that it is about protecting human beings against the power of state
authorities, against majoritarianism. It is about protecting people that are in an uneven
relationship. If we realise this, the question is whether it makes sense to then impose once
again the burden on the citizen? You risk creating a situation in which on the on the one hand
you give rights to persons and on the other hand you can take them back because they are
under the obligation. I am all the time struggling because what does the state need more? It
has already the monopoly of state violence (cfr Max Weber) and they have the monopoly of
taxes. Unless you are the mafia, all other human associations respect those monopolies. The
people are on top under the obligation to obey the law. What else do they need more?
And so, either going into the so-called human obligations, reading trough what you see in the
inter-American system, things you may see in the African system, either these obligations are
in a way reformulations of trivialities, such as ‘a citizen has to obey the law’, ‘a citizen has to
pay taxes’, either it is a kind of reformulation of rights, such as ‘the citizen has the duty to
educate themselves’. Either, I don’t see so much the added value but also not so many risks,
the problem is that trough the idea of responsibility of duties majoritarianism is coming through
the backdoor, you then read things such as freedom of expressing but individuals have the duty
such as respect their culture. That could be potentially very dangerous, because then someone
could be brought before the court because he didn’t his human obligation (such as cultural
tradition, ex. Giving Putin a tool like this. He is already using the Russian traditional culture
agenda to limit the use of freedom of expression. Then from a philosophical kind of view I am
not so much questioning the idea that if you have rights, you also have to have duties. But I’m
less convinced in the specific context of HR, where it is an uneven relationship between
32
rightsholders and public authorities. And I fear that, with the best intentions, that it may fire
back.
And this may explain why you may see every now and then initiatives where wise men coming
together and draft something like the Universal Declaration on the Obligations of Men. People
from very different political and philosophical backgrounds would come together and reflect
and come up with a list of duties. It is really not something that you have to frame in progressive
or conservative, etc. But I am a little affright of the abuses, what could be made of this kind of
concept; ex. Hungary has a fairly new constitution with an article: “children are under the
obligation to take care of their parents.” From a moral point of view this is in my opinion a good
idea. But it is a really a good idea to write down into a constitution and make it a fundamental
obligation? If I were a government and there were public deficits (and have no money), one of
the things I would then consider saying why aren’t we reducing the pensions? So, you cut in
pensions, with the argument when critique: “you have to go first see your children, because
they are under a constitutional obligation. Only when they can’t provide, you can come to the
government.” The pro-arguments open a door to these contra-arguments.
I am not convinced that this a good idea to write it down in the constitution.
The moral obligation should exist without the legal obligation, because otherwise you never
know where it is going to end. That is the only point I will make here with the duties and
obligations. I would be reluctant writing it down in laws and conventions, because then you
give a discretion to judges to decide on the scope of application of obligations. Then I finished
the general conceptual part.
Institutional framework
When we talk about international HR, we have to mention the UN. They are the cause we are
talking about HR. Before WWII, we will remember that the protection of the rights we call now
HR, was mostly a matter of constitutional rights. Up until the WWII, the protection of HR was
by far a matter of national protection. That’s why you would often see the name ‘constitutional
rights’. When it comes to terminology, we can say that almost this is interchangeable. There is
a difference when it comes to legal sources, whereby constitutional rights can be found in
constitutions and HR can be found in conventions and treaties.
Now, to be very clear, some aspects of HR protection were already dealt with in an international
context before the creation of the UN.
The typical example is the fight against slavery; the anti-slavery is typically a HR-movement,
dating back of the era before the creation of the UN. Another example is the labour law
standards, the ILO, which is related to the UN (this is a 1918’ context). The labour context had
already an international dimension. A third example and here again our Hungarian friends will
33
recognize the importance, the protection of minorities. This was already an issue debated and
discussed at the time of the Ottoman empire, and clearly after the WWI already with the
collapse of the Austrian-Hungarian empire, minority-issues were dealt with by international
law.
However, there was no such thing as a general HR protection, and here the European history
in the 1920’s-1940’s illustrates what happens if you’re just leaving the protection of HR/human
dignity up to national constitutions and institutions, it simply is not sufficient.
In a way, it is a completely circular reasoning; from national constitutions to national
institutions and authorities have to respect these national constitutions, what are you going to
when they’re not respecting? You are left without any defence. This is what happened to
Germany, to Italy, to typically totalitarian states. The experience of the years before the WWII
showed that this isn’t a merely academic exercise. Where you can’t say that you merely found
the bug in the system, this was a fundamental bug in the system which showed in reality that
it was quite problematic. It was dramatic.
The need to create an international level was felt. What you have to do to create this is to give
a means of protection to citizens who have to experience that their national mechanism
doesn’t work. The mechanism to create the international level of protection, you do two things:
1. Set standards; 2. Create venues, places where you can complain about the violation
This idea is very impressive at the time of the creation of the UN. That’s where you see that
there is a creation of international HR orders and venues. At the same time, you see that
regional initiatives are taken, who do more or less the same thing. This is where you see the
European system developing, you can see that there is the Inter-American system that is
developing, later the African system. The situation in Asia is much more complex. What we
have to do now is to go the UN system. This can be only done after the break.
Tweede uur
Before the break we said that the mirror of the constitution convention of the human rights, of
fundamental rights is not sufficient to avoid atrocities such as we has seen during WW II and
during the totalitarian boom. That’s why this UN system is developed. This is public
international law, and you know as an international organization it has his own constitution,
the Charter of the UN. If you have a look at this Charter of the UN, you see that human rights
promotion and human rights protection is present in the Charter but without going deep,
without saying what those human rights precisely are. So we can’t understand the UN Charter
when it comes to human rights without reading it together with the Universal Declaration of
Human Rights. This Universal Declaration of Human Rights dates from 1948, so this year we are
celebrating 70 years of the Declaration, and on the 14th of December our researchers,
assistants are organizing a conference, together with professor Wouters. With the title of the
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conference being ‘Can we still afford Human Rights?’ I would gently invite you to have a look
at the program and this conference. So you really need you to read the Charter and the
Universal Declaration together. Now the point is that the Universal Declaration is a resolution
of the general assembly of the UN. So strictly speaking, this declaration is not legally binding, it
is a resolution, a systems rule. Precisely the mere fact that this declaration was not conceived
in its very beginning as a binding legally document, perhaps explains why it could be adopted
without too many problems.
If you have a look at the Universal Declaration, it contains rights of the first and second
generation. It contains the famous provision of the annual holidays. And so you can wonder
how could states agree on that, as divers as they were. The east and the west, how could they
agree? After all, in the beginning they did not want it to be a really binding document, so why
would they care too much? And then of course, you can imagine lawyers started thinking on
the text, and if it’s possible to give it a legal status, perhaps it’s international customary law,
perhaps it’s general principles of law, perhaps it’s authentic interpretation of the charter which
is binding as such. So you have a whole discussion on the question what the exact status is of
the document with a high moral standard. About this high moral there is no discussion. That is
a little bit the first step: charter and Universal Declaration, being very, if you read them, very
ambitious documents.
Soon of course, and it is from an historical perspective, it is incredibly interesting, in 3 or 4 years
you see this cold war coming and the whole discussion on ‘Is this Universal Declaration binding
or not?’ This discussion could theoretically be solved very easy, what do we have to do as
lawyers when there is a discussion of a legal status of a text that could be called soft law or
something similar? What would be the most reasonable and logical reaction? The point would
be, I suppose, turn it into a treaty and then there is no more discussion. Then it’s a legally
binding treaty, right? So that was the idea, if we can’t agree on the exact status of that text,
let’s turn it into a treaty. And here ladies and gentlemen, comes up the whole problem of the
conflict of worldviews and political models under and during the period of the cold war.
Because all of a sudden, well not completely all of a sudden, but it was clear to everyone that
it was highly problematic to be truly universal when it comes to making a general
comprehensive Human Rights treaty. Because whereas the western countries stressed the
importance about our first political rights. Eastern countries, the Soviet-Union would stress the
importance of social and economic rights. And so it was a huge debate on whether you could
have all them in a legally binding treaty.
Why? Think about the different meanings these rights have and the different perspectives on
the role of state authorities these generations.
And then comes up, it never came up to another state, and then it comes up to the genius of
the Belgium and you know this country and the rule of ius cogens of Belgium. I say this for our
foreign students. Whenever you see a problem, split it. That is the Belgian solution for
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everything. So you have this fights between states about ‘are we going to make a treaty?’ and
‘I don’t like that right’ and ‘I don’t like this right’ and ‘what do we mind on this?’ This continuous
discussion goes on and on, and then what would the Belgian solution be? ‘C’est facile, allez Jef,
on coup en deux. On fait deux traités.’ That’s smart, making 2 treaties, and that’s how we end
up with an international covenant on civil and political rights on the one hand, and a covenant
on social, economic and cultural on the other hand. You make 2 binding treaties and states can
sign up to the treaties they like, and so that is what is happening. So never ever call into
question the impact of beer, chocolate and French fries on legal minds. It’s a prerequisite on
brilliant solutions.
Now we have 4 texts:
1. A Charter, with some obligations but without being genuinely precise.
2. Morally high esteemed Universal Declaration, a resolution of the general assembly.
3. Covenant 1
4. Covenant 2
These 4 documents together are called the International Bill of Rights. But, and here is the point,
you need to realize, that those 4 documents basically deal with 2 different tracks in the UN
system. This is very important to understand, for you and for us. When it comes to protecting
human rights, the UN functions on 2 tracks:


On the one hand, you have Charter based mechanisms; these are general.
On the other hand, you have Treaty based mechanisms; these are specific.
A. THE CHARTER BASED MECHANISMS
The system under the so-called Charter based mechanisms. You could have a look at the UN
Charter and make a whole list of all the institutions. It can be the general assembly and the
Security Council and the ECOSOC and all the kind of organs of the UN. They will all have
somehow some competences related to promotion and protection human rights. The key act
in the system is the Human Rights Council. This Human Rights Council has been created in 2006
and it succeeded the Commission on Human Rights. So before 2006 there was a Commission
on Human Rights, which was a subsidiary of ECOSOC. This Commission on Human Rights was
criticized because one of the big points was that there were too many members, 53. It had not
a permanent or quasi-permanent standing. They had a yearly meeting, but they didn’t meet
often in a long time. It was highly politicized and it was seen as somehow ineffective. So decades
of criticism lead to a change in the system. And in 2006 the Human Rights Council was created.
In some ways this is a step forward, on the one hand they meet 3 times a year for 10 weeks, so
it is a quasi-permanent body. I am not convinced that when it comes to the number of members
that there is much progress made. There are 47 members. There is a regional repartition. So
there is a geographical retribution, so many African states, so many European states and so on.
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States are elected for a period of 3 years and no state can be excluded but on a 2/3 majority
states that are non-respecting human rights, or being gross violations of human rights can me
suspended. If you now have a look at the members of that Human Rights Council, I am not
going to say anything. But if you see that for example Venezuela is a member you may have
some questions, just to mention that example.
So already you see that the problem at the UN level is very complicated, it is highly important
in diplomacy and international relations. So this is the question: ‘to what extend do I have to
include and do I have to engage with states that massively do not respect human rights’. There
are basically, roughly speaking 2 theories, and it is always the same song that you sing. It is
either peacement or either containment. So either you say, well I opt for a boycott, I don’t want
to exchange and I don’t want to include these kinds of states in the international chains. So you
isolate, this is one option. Basically this is something we do with North Korea. The other option
is that you say: ‘if I do that, I can’t make them change, I can’t make them reconsider their
position, I can’t influence it, because I decided to boycott them’. It is highly unlikable that they
will change their policies, therefor it is perhaps better that they are included in the pot and that
we try to influence them. So we can continue the dialogue and little by little things may change.
That kind of keeping the dialogue going on, implies of course that you are willing to engage
with politicians, with states that perhaps are not the most respectful ones. And that is a choice.
But I said once, I think it was Insakrabi (?) who said it ‘you only make these agreements with
your enemies’. So if you set your morals standard too high, you are not going to make peaceagreements with no one, so that is the discussion. And within the UN system, they believe in
continuing the dialogue. But of course there are strange things. For example just before the fall
of Khadhafi, Libya got elected in the Human Rights Council, which is weird. And there are other
examples.
Now, what is this Human Rights Council basically doing? They have various tasks. There always
is this idea of promoting, emotional task of human rights, developing human rights. But it is
mostly know for some specific issues, and that is the so-called UPR, this is a novelty.
1. UPR. This is the Universal Periodic Review. I think I am not whether it exists in other
European countries, but Dutch and Belgian students may compare this to what was for
I think more than 20 years know as ‘visitatie’. So this UPR is basically a site, it is a 4 years
site. What you gonna do is this, you gonna asses states as a whole on their human rights
track record. And so, what is going to happen is that the state is going to draft a report
by saying ‘this is the human rights situation in my country’, so you have a statement.
That is a kind of self-assessment if you want. And then, within the committees dealing
with this UPR, the Human Rights Council will as well collect information available within
the UN, on that country. So you have the state coming up with a general overview of
the human rights situation in that particular state, you have information available within
the UN and stakeholders will be asked as well. Stakeholders in the states, so for example
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ONG’s will be asked as well to come up with reports. And everything is brought
together, so then you get discussions back and forward between the states and the
Trojka. About: ‘How you deal with this common, there is an ONG saying that this ant
this is not functioning. What do you say?’ So you have a dialogue, and in the end you
have a report, this report is send to the Human Rights Council where in the plenary
session there can be a debate and then a final document is adopted with a general
finding. Like if you as state were a schoolboy or whatever, and you could say this is my
report, this is what I got from the Human Rights Council. This gives a good overview of
the human rights situations in the countries. And I would highly recommend you to read
those reports, I liked that a lot. It is to say, I think it helps us a lot if we read the reports
on our own countries. Because it gives us a good overview and it’s very useful to read
why and which arguments are being criticized or at least pointed out by international
human rights institutes. And sometimes or in many cases, you may say, ‘yes that is fair,
that is a problem, I see and I have recognized’. And sometimes you read things where
you say ‘hmm, I don’t think they really understood what is at play’. If you read that, you
will realize that if this is true for Belgium, most logically this is true for all the other
countries as well. It is an exercise in modesty as well. I learned from that, whenever I
read a report of another state, it will be in generally speaking, it will be correct but it is
not necessarily correct at all points, I think that is important. In this way you can do a
quality check of the UPR system by reading the report of the country you know best. So
UPR is an important issue.
2. A second point that is important, are the so-called special procedures. Special
procedures, essentially pointed at experts, the so-called special rapporteurs, you may
have heard of that. Special rapporteurs can be appointed either for a given country. So
if there are countries with specific problems or there are a lot of problems, you can say
we want to have a specific rapporteur for these problems. You can send a person in that
country and that person will deal with all the problems in that country. The other point
could be that you are not so much interested in a certain country but that you are
interested in let’s say specific issues. And then you have issues such as the right to water
for example. So there has been a special rapporteur on the right to water. There has
been Olivier Discutaire, Belgian prof Human Rights in Louvain-la-Neuve has been the
special rapporteur on the right of food. You can have special rapporteurs on freedom
of expression, freedom of religion… So there you have a transversal issue and it will be
a reports dealing with specific topics. Those special rapporteurs they provide the
Human Rights Council with very useful information, but of course these reports are very
useful for anyone interested in those issues.
3. A third important point is that the Human Rights Council has as well created a
subcommittee with experts, it is called an advisory committee. And there was already
an old practice that existed at the time of the commission, and that is still in a way
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continued and these are the experts and they are in a way, I don’t know how to call
them, I think the best way is to call them is a think tank. This is what they do, they are a
think thank to the Human Rights Council, that’s their main raison d’être. So these are
18 independent experts, but they have as well a role to play when it comes to the
complaint procedure. There is indeed a complaint procedure that already existed under
the old Commission; at that time you had 2 procedures, now there is only one. This is a
confidential procedure, based on the idea that individuals can complain about a
systematic pattern (that is important) of gross human rights violations. So you are not
going to go to the Human Rights Council whenever you think you are a victim of a minor
problem in a country or when you are a victim of something that is not a structural
problem in a country. That is not the issue of the Human Rights Council. The task of the
Human Rights Council is to deal with gross systematic violations. That must be in
patterns, and then they going to deal with it, as I told, in a kind of confidential way. I
recognize, that especially in long-term violation, you may be shocked to see that
something is confidential. Your generation is the generation of transparency, doing
everything front stage.
Now there is some value in doing things backstage. States can have a much more open
debate if they know that what they are saying/doing/admitting is something that is not
exposed necessarily in all details to the whole world. In international human rights
issues, you often see a mechanism that states may admit so to say more backstage, or
if you take a beer with a representative they will say ‘yeah we know we have a problem
there’. But they would never ever admit that or do something when it’s front stage.
Here again, it is a pragmatic position, if we know we can obtain more, can obtain
changes (it’s not guaranteed, but there’s a big chance) by doing it let’s say in a more
confidential/hidden way, why then would we try or would absolutely want to be open.
Often you see that silent diplomacy is much more effective than the more open
completely transparent way of doing things. Often it’s a matter of permitting keeping
up appearances; it’s often about the presentations. If you are going to study the AfroAmerican system of human rights in detail, you would see their procedure is much more
concerned that if you want confessions, if you want to obtain changes, you should leave
the possibility for the state parties to talk away from the stage, with open procedures it
is much more problematic. So the basic procedure is, let’s try it in a confidential way.
And it is only when they see states are not cooperating, that they don’t react and don’t
want to answer, they may go for the open transparent procedure. Then you come into
a context of naming and shaming. So these complaints, basically, there is a filter
mechanism. This filter mechanism is done by a working group made of the experts
whereas when it comes to the substance of the case it’s done by a working group of the
state representatives. So you see that at that point there is room left for diplomacy, and
that is of course very important that you understand that under the Charter based
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mechanisms, diplomacy and therefore politics play very important role. So this is not
only a purely legal approach to human rights. We are here, far from a legal approach to
human rights complaints, here other considerations enter into the discussion. You may
like that, and then you will like international relations and diplomacy. As a lawyer I am
less familiar, I’m less at ease with this kind of cases. So I think the legal aspect is much
more easy but perhaps less effective.
So this is basically what is established in 2006, which is already 12 years ago. In 2011
there has been a general review of the system with propositions of change, technical
issues, especially when Human Rights Council is meeting and states are supposed to
criticize the outcomes of the reports. There were propositions to make some changes
to the system but in any event there was no fundamental criticism to the Human Rights
Council as such, at present we can say it continues functioning and working (with little
problems that are inevitable) in a context of the UN. That was the Charter based system
in a nutshell.
B. THE TREATY BASED MECHANISMS
Here you see that we are all moving towards what is a more legal approach to human rights. I
told you we have the international covenants of civil and political AND of social, economic and
cultural rights. Within the UN there is a list of treaties that are considered the 4 human rights
treaties. This is the list of treaties that covers the core of international Human Rights treaties.
So we have the 2 covenants, the 2 treaties I already mentioned. But then there is a list of
treaties. These treaties are in the handout. Next week there is no class, and then the week
afterwards Acco said that everything would be available. I tried to put the handouts on Toledo
so you have the list of the core treaties available. So you have the 2 covenants of civil and
political rights & social, economic and cultural rights and some 7 other basic treaties, for
example the treaty against all forms of racial discrimination, the treaty on the rights of the child,
on the rights of disabled people, the treaty of protecting migrant workers and their families,
anti-torture treaty is another one, and the conventional protection of all citizens from all people
from enforced disappears. What is important about those treaties?
1. The first important point is that those treaties, those treaties, conventions are only
binding for the states having ratified the treaties.
2. The second important point is that those treaties follow a kind of similar logic. This
similar logic is that you have standards, these are the rights protected by the treaty. And
then you have a control mechanism, which is a specific body that monitors the respect
of the treaty by the state. For example for the covenant of civil and political rights, it is
the Human Rights Committee, the most known one. But you have for example the
Committee of rights for women. So you have expert bodies, each treaty has it’s expert
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body. And then you are going to see, and I absolutely don’t want you to remember that
because I am too lazy myself to study it by heart. But what is important is that you
understand that the monitor mechanism is made of various different mechanisms and
each treaty makes a choice of mechanisms. What do I mean?
First point is, what you have is a state report, so states have to report on how they comply with
the respect of the treaty. So you as a state you say ‘In my country, the rights of a child are
protected this way, that way, and so on’ or you say ‘Political and civil rights are protected this
way’. So state reports.
You also have sometimes state complaints, obviously if you think of that, not often useful. You
must be really stupid so to say to start complaining as a state about another state unless it is
really an atrocity. But what is the basic rule of states? I am not going to create problems to
another state, on condition, on hoping that they are not going to intermingle with my internal
affairs. So if I am Belgium, why would I go and complain about the behavior of Spain in case
XOY, is that important? Why would I do that? Suppose I do, I know what is going to happen. At
the next occasion Spain will say, fuck those Belgians. So if I am a little bit smart, and we know,
Belgium is legally seen smart because of their beer and so. So we won’t do that, state
complaints in human rights is hardly to find. Take for example the EU Convention, it exists
interstate complaints but there are very few of them and you can easily understand why. Then
you have individual complaints, sometimes recognized sometimes not. And sometimes you can
have these country visits. That is the big picture, I am going to explain this a little bit more in
detail tomorrow.
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Les 4 (05/10)
Eerste uur
Yesterday, we were discussing the UN system. The UN HR system is a two-track system: charterbased mechanisms and treaty-based mechanisms.
The main issue here is that the treaty-based mechanisms follow a very strict legal logic. Treaties
are open for ratification: this means that we can see in the first place whether a state is bound
by the rights or obligations of the treaty. These treaties protect specific rights (e.g. racism
treaty, women’s rights, migrant workers etc). Each treaty has a specific body (so-called ‘treaty
body’) and the goal of that body is that it will function as a quasi-jurisdictional body. In those
bodies there are independent experts.
Whereas the charter-based mechanisms are essentially based on diplomacy (the work of
representatives of states), the treaty-based mechanisms are based on the idea that
independent experts will deal with the questions. But there are no judges: it’s not a court
dealing with the issues, it’s independent experts.
As told, all those treaties have monitoring procedures in common (e.g. state reports: if they
signed up, states have to make reports and report how those specific rights are guaranteed
within their natal order). Then there’s the system of individual complaints, which can be
included in the optional protocol. If there’s an individual complaint procedure, it follows a kind
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of traditional reason: there’s the face of admissibility, and there’s the step where the merits of
the complaint are dealt with.
The importance of this individual complaint mechanism may differ from state to state, because
of the possibility that in some cases there will be more effective regional judicial protection
mechanisms.
Example: Belgium – Case on Covenant on Civil and Political Rights. Why would you go to this
committee and complain about a violation of your civil and political rights if there is as well a
possibility to go to the Strasburg court and there’s a clear obligation for the Belgian state to
execute the court’s decision? Moreover, it’s not to be excluded that many states (and Belgium
did so for some provisions) make declarations or reservations when signing the UN
international treaties saying, ‘if this right is equally protected by the European Convention on
HR, we’re only willing to accept it to the extent that this right has the same scope as the similar
right in the European convention’. In other words: the Belgian state for example accepts
freedom of expression, but only in so far as it is protected in the same extent as in the European
Convention of HR. If you decide to go to the HR committee, one of the first things to do is to
check whether your state made some reservations.
This can be very different for states where there is no regional protection mechanism, where
it’s either your domestic order that is going to protect you, either one of the committees, but
no in between. In such a case, there is no other choice. You have to go to the UN treaty bodies.
You see here as well the difference between the treaty-based mechanisms and the charterbased mechanisms. In charter-based mechanisms it was about gross violations and patterns of
violations, not about individual instances. Here, under the treaty-based mechanisms, it is
possible (to the extent that individual complaints are made possible) to complain just about an
individual case as if it were a case brought before an international court (e.g. Strasburg).
Sometimes it happens that individuals, even when they have at their disposal a procedure
before the Strasburg court, decide not to use the Strasburg court and go to the committee.
Example: in cases against France (we know France has for historical reasons a very strict
separation between state and religion) because civil servants were not allowed to wear
religious or philosophical symbols. This was contested, but every case brought before the
Strasburg court was always dismissed. The idea basically was that the Strasburg court had the
opinion that they only had to see whether a minimum threshold of HR was protected. They
recognize that, due to diversity within Europe, states can have their own models of state-church
relations and therefore religious-philosophical neutrality, and they concluded that France could
do what it was doing in the cases they had before them. That is not to say that France has to
do that or that other countries should follow, it only says that it was fine for them.
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Obviously, when you’re a lawyer and case after case is dismissed, after a while you realize that
if your clients are still complaining about those internal rules, you can’t go to the Strasburg
court. Theoretically you can, but the question is whether you’ll be helping your clients. In such
circumstances, it might be useful to opt for the UN-way, because in those UN bodies, you may
have more diversity in the panel. The European court has judges, but they only come from
Europe. If you go to the committee, you may have representatives from the Middle East, from
Africa, from various parts in the world, and they may have a different view on these issues. This
is what happened in France and the applicants won their case on the UN. It’s perhaps
interesting to have this kind of cases coming up. From a more strategic point of view, it can be
useful. Obviously, you will also have circumstances where you have no choice, because there
is no regional court dealing with those specific rights, so the only way is to go to the UN body.
In some cases, there will be state visits.
Another point that is very important, is that they also publish what they call ‘general comments’.
In some way it’s a kind of scholarship. What those experts do in that situation is to publish a
report where they say, ‘we know there is some discussion on the meaning or scope of art. X in
our convention and we will publish a report giving the scope of the article and explaining the
interpretation of the article’, which obviously is very useful.
The role of those quasi-judicial bodies is somehow contested. It is something that is not limited
to the UN only (when we’re dealing with the European Social Charter, we’ll see something
similar when it comes to the committee). Those experts are just experts: they’re no judges,
they’re no state representatives, they are only representing themselves. Since they know that
states are not so much impressed with the outcome of their findings, they may be tempted to
push it a little. Here you see kind of perverse mechanism in place: because of the sometimes
rather activist approach, states say ‘well they’re just activists’, and they tend even more to
dismiss their findings. E.g.: Years ago, there was a meeting which dealt with the social security
and health care rights of undocumented people (around 2010 in Italy). At the time there was a
financial crisis. There was a whole debate on the obligation of urgent medical aid and a
discussion about ‘what is urgent?’ It was one of the scholars who started to talk about the
financial impact in a moment of time where everyone is desperately looking for money. One of
the experts said that ‘his committee said no regressive measures’. But what was he going to do
if these budgetary problems continue or get worse? The expert was always talking about ‘my
committee’, but in practice, there is a number of experts and they divide the work: they’re all
expert on one or two or three articles. At the end of the day they just sign and say, ‘we decided.’
They just wanted to hear that he decided. That was a harsh critique. There were more and
more people questioning the legitimacy of the experts representing just themselves. The
experts know that they’re in a difficult position: their aim is not just to please states, but they
also know that if they’re all the time going for a full confrontation with states, in the end they
may lose a complete credibility. There’s still something important to be said about this specific
treaty body.
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At this point, it should be clear that it’s huge: each treaty a specific panel, each treaty specific
monitoring mechanisms, many of them similar, but not all the time, so it’s easy to get lost or
confused. At a certain moment of time within the UN administration itself and the UN
Commission of HR, the question is: shouldn’t we reform the system? Because it’s confusing and
it’s heavy. Maybe it would be much clearer to everyone if there were only one treaty body. The
point is that this reform hasn’t been implemented. It’s a discussion that comes up now and
then: commissioners brought it up, but they all failed to reform. There are as well people saying
it would not be in the advantage of the citizen. Their argument is that there is a huge difference
between dealing with the classic civil and political rights and, for example, dealing with rights
of persons with a handicap. These are various things and it’s a good thing that you have experts
in each field dealing with each problem specifically. At present we still have all those treaty
bodies and we don’t know if the future will bring changes. We only know that it’s extremely
difficult to reform the UN. It’s a very heavy thing and it’s not clear to what extent this reform
could be implemented soon.
That brings us to a related question: if we have a European court on HR, an African court, an
Inter-American court, then why don’t we have a world court on HR? That world court of HR
would of course be something different than the ICJ that we know today. The world court most
probably would be able to receive applications, requests, submissions coming from individuals.
If you have such a court, you may be able to get rid of all those bodies and treaty mechanisms.
Then again, thinking about the whole diversity in the world, if we have a world court, how would
the relation be between the world court and the various regional courts? Should we abolish
the regional courts and centralize all the foreign applications in one court?
What would that mean in terms of interpretation of HR? We can all say that HR are universal,
but if already now in the European system there is such a need for diversity (e.g. religion-state
relations), how then could we possibly think of one court dealing with all those questions?
Would it be a risk that we end up with a so-called ‘world court’, but where you have regional
chambers (European chamber, Inter-American chamber, African chamber)? We don’t know if
that would really be a step forward. At the present, there’s still no world court so we have to
deal with regional courts in so far that there are within the various regional systems courts
available.
You have the international level (the UN). What is striking is that at the same time (when they
are drafting the Charter and they’re working on the Universal Declaration), you see that the
similar ideas come up in various continents. You see the European integration (not only EU, but
also the Council of Europe have been created). The Council of Europe is the fundamental
institution when it comes to HR on the European continent. You already see that at the same
time that ‘we the people’ have the Universal Declaration and universal rights, we’re already
working on regional interpretations of those so-called universal rights.
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It happens in Europe, but also in the Inter-American system. That stresses the idea that the
American continent is not only about the USA and Canada, it’s also about Central and Latin
America, which from a legal point of view, and from a cultural, social, economic and religious
point of view, is a completely different world. You have a legal system on the one hand that is
very advanced, that has the rule of law and constitutionalism since its very early days, based on
common law tradition. You have other states that are completely based on civil law tradition
and they’re more dominated by a more catholic culture. Nevertheless, you have to bring them
together in that one international organization. They have an American Charter, an American
Declaration of HR and they also have an American convention on HR. If you have a look at the
text of the convention, it’s the civil and political rights, but there’s also one general provision
on social and economic rights. So, in their convention, they try to bring in both generations of
rights, clearly more outspoken when it comes to the first generation, less so when it comes to
the second generation. The monitoring mechanism is a very complex one: it is very similar to
what existed in the Council of Europe before the reform of the European court, before the
European court of HR became a permanent HR court.
Basically, the key actor in the American system is the American commission on HR: quasijudicial body of independent experts. The American commission is seated in Washington DC.
They have a double function:
1. Monitoring the respect of the charter and the declaration for those states that did not
sign up in the American convention of HR. For those states that did sign up to the
American convention and recognized the jurisdiction of the Inter-American court, the
commission is a preliminary step. They would receive a complaint and take a decision,
only if the commission finds the state is not respecting their findings, they may decide
to bring a case before the Inter-American Court (seated in Costa Rica). So, you have a
court system, but only for those states that sign up to the American convention on HR.
2. Advisory jurisdiction. Especially, when it comes to disappearances (that many of the
American states had in the 70’s, e.g. Pinochet), they have a serious experience in state
visits. They develop quite a fine framework for transitional justice. So, the interAmerican court on HR is a court that (because the American convention was not so
explicit, compared to the European convention, on the execution of judgment or
regress) developed their own practices and they are quite fascinating. In terms of
regress, lawyers just want to pay them, but there are many cases where the victims are
not interested in money, they just want the truth coming up and lessons to be learned
and to be recognized in their state as a victim. The inter-American court found
interesting ways: regress for the Inter-American court can be for example that you
name a central square in a town after a victim or that you create a statue for the victims
(more symbolic things).
46
What is striking is that more and more we’re not only looking at what the court says, but the
European court on HR and the Inter-American court on HR are closely working together,
precisely because they both think they can learn a lot from their mutual experiences. On the
one hand, because in the Inter-American system, the decade of this disappearances and gross
HR violations is gone. These things are not as frequent and dramatic as they used to be, so they
also have to deal with the more “usual” HR violations such as cases coming from the Strasburg
court. If you now are dealing with freedom of expression and fair trial issues, then it’s quite
clear that you can learn a lot from the Strasburg court. On the other hand, the Strasburg court
(especially in the aftermath of what happened in former Yugoslavia in a certain period and
some dark edges in Europe) was growingly confronted with cases where there were issues of
disappearances, and the Strasburg court didn’t have that much experiences in the field, so they
were happy to learn from the Inter-American court.
In Africa, we see a similar evolution. Obviously, it’s bit later, which clearly has to do with
decolonialization. It is obvious that African regional cooperation could only take place as soon
as there were independent African states. They were working on this African integration in the
late 60s and 70s, and so in the end they come up with an African charter on HR and people
rights (so-called Banjul Declaration in 1981). What is very particular when it comes to the
African Charter is that it says it’s a charter HR and people’s rights. So you see first generation
rights, second generation rights and you see as well the new collective rights. This obviously
reflects the recent African past. If you have the right to self-determination and the right to
develop, you can easily understand why it got there. It’s from that perspective a very innovative
charter. You also see that they mention some duties and that there is a little bit more a
collectivist dimension to it. The African conception of fundamental rights is less the very
individualist European conception.
Once again, the problem is not so much the text; the problem is the monitoring system. You
have an African commission on HR and people’s rights (quasi-jurisdictional body with
independent experts). But in recent times, the idea grew that there should be a kind of African
court on HR and people’s rights. It is established and seated in Tanzania, and the very idea (very
ambitious) is that the African Union, which is an organization that is inspired by the EU, would
in the long run love to have a single court with two chambers: a general one and a HR chamber.
This would be as if in Europe we would make one European court: one chamber would be the
chamber on the internal market and the EU issues, the other chamber would be a chamber
dealing with HR issues. It would be almost as if there is a merger between the Luxemburg and
the Strasburg court. So, you bring the African court of Justice and the HR court together and
this would be the court of the African Union.
Obviously, this did not happen yet. We have an African court, but the relation between the
African commission on HR and the African court is far from being clear. There are relatively few
47
states recognizing this African court of HR and people’s rights, so it has in that perspective a
rather limited jurisdiction. There are cases, but especially in the first years, most of them were
cases where they concluded that the case was inadmissible. African lawyers didn’t understand
it either. And these were rather obvious findings of inadmissibility; it was not like you couldn’t
expect it. We don’t know why this happened.
It is clear that in theory they have a great project (innovative, it can make a difference), in
practice however, there are a lot of things that are still unclear, obviously the court is suffering
from a lack of resources and means, and especially in Africa one of the problems is the
promotion of HR. A lot of African people don’t even know that they have all those rights. This
is the basic problem: if you want to protect HR, the first step is a step of promotion and
awareness. People in the first place need to know that they have rights. There’s still a lot of
work to be done, which is merely a matter of promotion.
There’s one continent missing: Asia. Asia is a little bit of a problem, because it’s such a huge
and diverse continent (the Pacific, Japan, China, North Korea, India, somehow Russia and
Turkey). It’s clear to see how diverse it is in terms of legal tradition, political philosophy,
constitutional systems. So, it’s easy to understand that it’s extremely complicated to find
agreement on a regional system of protection of HR.
Tweede uur
In Asia, what you see, is not so much one regional Asian system, but you rather see Sub-Asian
thing coming up. You have the Association of South-East Nations, it’s called ASEAN. They have
adopted a charter on human rights and then they created a kind of intergovernmental
Association/Commission on human rights. But you can already see from the name that it is a
little bit weird to have a human rights thing/body/commission that is intergovernmental. The
governments, who are supposed to be the perpetrators/violators of the human rights, are
going to monitor the human rights. That is as saying to students, why don’t you correct your
own exams? You can always see there in such a case that there are honest students and student
students. That is what is happening, regional and sub-regional initiatives. You could bring in
that here again, Asia, you can see for example initiatives taken by the organization of Islamic
Corporation. Go and have a look at the member states of the organization of Islamic
Corporation, this is not only Asia, many of the states involved are African states, are also
European states. So, it is not limited to Asia as such.
They also have a declaration, that is the famous and some will say the infamous Caïro
declaration on human rights in Islam. Read it! It is particularly striking it is a 1990 text, and I
learned a lot from it. There are two things. The first thing is that it’s compared to traditional
human rights theories, it completely inverts the logic. If you go to traditional human rights
treaties, the European Convention, the UN Conventions, you would see that you have rights,
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and then it can be limited, and the limits to the rights are after fulfilled three conditions, there
must be a legal basis, it must be proportional, it must be pursuing a legitimate aid. If you go and
have a look at for example the freedom of religion, it says, you have freedom of religion, within
the limits of the law. If you have a look at the Caïro declaration, it completely inverts the
reasoning, it says, you have freedom of expression/religion, within the limits of Sharia. Men and
women are equal, within the limits of Sharia. And in the end there is a specific provision saying
that limits of human rights are possible within the limits of Sharia. So in the end it is not about
freedom of religion within state law, it is about law within freedom of religion.
So, I find it very hard to see that as a human rights declaration. But it is a very impressive text.
And especially, saying that it is a 1990 text made me reflect on how much mistaken we were,
you not, but how mistaken my professors were and I when I was at your age, when we said,
1990, the end of history, that was the idea. In 1989, the Berlin Wall fell, and you would have
‘the end of history’. Now it was clear that there would be a liberal democracy and capitalism
everywhere. Globalization, that was the good news of the day. And everyone believed that
that’s were ‘Kapi Blaira’ and his followers developed the third way, because there was no
alternative. The end of history was there. No one took this 1990 declaration serious. Because
at the very same moment you have states coming up with a text on how a religion, believe
system, is more important than secular law. The point is not that I want to defend one or
another, I just want to say, if you have been looking seriously at that text in 1990, we would
never ever had said that the end of history was there. So the later all equally crime of clash of
civilizations and so on and so forth. History did not end there. At the very same moment in
Caïro, there were a lot of states indicating that they were not going to follow this idea of liberal
democracy, fundamental rights, constitutionalism, capitalism and so on and so forth. And it was
written down there. So if you think nowadays, where does this Erdogan and so on come from?
I’m not saying there is a direct link, but believing that it is all out of the blue, is only showing
that you haven’t been looking at the world seriously. That you were just looking through one
lens. Keep that in mind.
The last point there, is that you also have the League of Arab Nations, a semi-African, semiAsian Association. But of course, with the situation of Africa, it remains to be see to what extend
this organization is still very, at the present, effective. Unfortunately, you can see that some of
the leading states, are now, let’s say, questioning whether they are still fulfilling their role as a
state, whether they are still properly speaking states as you would expect a state to be. And
that is why I don’t think the League of Arab Nations at the present is a very effective
organization. But hopefully this changes one day. Then we can see if the Arab Charter on human
rights, they haven’t had a charter, they had a permission, can be a useful instrument to protect
in that particular part of the world the citizens.
We have in a nutshell the European system, the international system. We have seen that there
are regional systems and obviously, one of the regional systems we are most interested in, is
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the European system. As from now onwards, we will concentrate on the European system.
Within Europe, we have basically three different organizations dealing with human rights
issues.
The most important one is the Council of Europe. Not surprisingly, the European Court of
human rights has been creating the framework of the Council of Europe. And since this is such
an important organization, I will keep it for last, and that would be not next week but next class,
and we have professor Lemmens as an insider expert, to tell us much more. In this half an hour
we are going to deal with the two other institution very short. They are from a human rights
perspective only, not so important as the Council of Europe.
The first organization we have to deal with is the European Union. And I know you have so many
classes on EU law, so I don’t have to be extremely comprehensive. We all know that the
European Union started not as an organization to protect directly human rights. I think it can
be suspended that indirectly it promoted peace between France and Germany. Obviously, it
wanted to protect important human rights issues, but it did not do that in a very clear and open
way, but rather indirect, by the simple believe that if you would make people buy each other
things, that they are not going to work. This is of course an extremely simplistic vision of things,
but I think you have to bear that in mind. The first point of the European Coal and Steel
Communities in the first place is creating peace in Europe, stability in Europe, avoiding conflicts
and spillover effects and violence in Europe through dealing with each other, through
buying/selling things, through the market idea. Peace as a result of market integration. And
that explains why obviously, in the treaty, you do not find much of long lists of fundamental
human rights issues. Yes, there are some articles related to human rights. Think about the
whole equal treatment of men and women in labour cases. So yes, in some areas there has
been a lot of attention for human rights issues, but certainly not as a comprehensive system.
That was not the idea. However, the states involved all have in their constitutions human rights
provisions. And they were party to the European Convention on Human Rights. So, it should
not come as a surprise that the European Court of Justice could say that fundamental rights
and human rights play the role of the general principles of law and that European institutions
have to take them into consideration, so in a rather indirect way.
And then you see in a next step that article 6 is written down in the treaty of the European
Union. And there it is that the Union guarantees human rights and observes the rights. We
know that at a certain moment in time a new millennium was there, it was felt that there should
be a truly European Human Rights Charter. And that it would be part of the project that was
the European Constitution. Maybe you remember this idea to create a treaty that would be a
kind of European Constitution, instead of having the system we have today. You would have a
constitution rather than a treaty. But we all know that referenda in France, in the Netherlands,
led to the abolishment of the idea. And so only the change of the treaties as such. But in the
end, what came out of this is the Charter of Fundamental Rights of the European Union got the
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status of fundamental treaty. And this Charter, if you have a look at it, is the first new
millennium human rights text. And it has first generation rights, it has second generation rights,
and there are certain ways to say that it deals with some indirect rights as well. Obviously, this
Charter is still rather young, but you see that more and more it is used by the Luxembourg
Court. Little by little, in 10 years, maybe this will be completely redesigned and half of it will be
dedicated to the system in Straatsburg and half of it to the Luxemburg system.
If you take a calendar of the charter, some years ago, for many articles there was no case law.
Now you see more and more case law coming up. So, it is a very thrusting evolution and we
should take that into consideration. We also see that the European Union, becoming a
European Union, which has a political dimension, has pick up human rights a serious tradition.
We all know that, look at what’s happening in Hungary, we also know that the European
institutions are aware that they have a role to play when they launch procedures against those
states, so we have to look what the outcome will be. But they are concerned with fundamental
rights and rule of law issues. That is also reflected in the way the European Union uses human
rights in its foreign policies. It is, there is a specific class about human rights in foreign policies,
and basically what you see is how services as external relations services, development external
services, how they impetrate human rights. Usually in treaties with first states parties as a tool.
We can give you for example development aid, but we want to have clauses on the respect for
human rights. And here again you see it’s diplomacy, it’s not a real legal thing, but here again
you see the discussion we had yesterday. Is it a good thing to have clauses included? Yes you
see it is a good thing to have human rights clauses included in your agreement, because it
allows you to launch dialogues, to launch discussions. To say: hey you remember we said we
think human rights are important. It is in the treaty, we have to come to know this or that, so
you have the means to use diplomatic force if you want. Now obviously ladies and gentlemen,
what I have to say in this context, is that we should be asked and forget about the Eurocentric
worldview that we had for so many years, because it is one thing to include human rights in
your foreign policy when your part of the European Union, and when you’re probably one of
the leading forces in development aid, it is another thing to do that in 2018 or 2020, when
other states are much more powerful economically. And for example, in Africa, you can see
that. That not only there is obviously the burden of the past, it is not very straight forward for
European states to tell African states what to do in terms of human rights, because the past
doesn’t give a good impression for the European states of course. But moreover, the point is,
if you as European state, you are too harsh, too strict on your human rights things, China will
be more than happy to give the money to do the investments without bothering at all about
human rights issues. And so you have nowadays states in Europa, saying if we engage in
corporations in Europe there is this human rights bubble that comes together, where is if we
take the money from China, it is just the economic transaction, because they don’t impose
those clauses. So this is a reality that makes the diplomacy even more complicated. That is a
reality. That is in the foreign policy where Europe tries to do that, but I fear that the economic
prices contributed to weaving Europe’s position in that perspective. The other problem is that
51
the so-called refugees and immigration prices obviously, show to the whole world that Europe
is very keen on preaching human rights and the importance of fundamental rights and so on
and so forth. But if I were to be honest, if I were a non-European citizen of the world, and I’d
hear the European’s say what to do in terms of human rights, I would answer them: and how
are you doing things with human rights? I would point out Hungary, Turkey and so on and so
on. Where there are serious questions to be raised. In a way we must not be naïve, we are
losing a lot of our credibility because we are not a leading example. If you want to lead, if you
want to preach human rights, but what comes with it is that you should lead by example. It is
not about saying that human rights are important in politics and policies, it is about showing
that you respect them and implement them. That’s the way it should work. But we are there a
little bit in a complicated position, it means that perhaps we are more outspoken than we used
to.
However, this is diplomacy, this is the introduction to politics, there are some specific classes
on this topic. However, there is a fascinating topic to be addressed, and that is the question
whether the European Union should become a party to the European convention of the human
rights. Because if you think about it, we are living in a weird situation. The point is that all
members of the European Union, and that is 28 27 you never know that, all those states
individually are part to the European convention. So they have as a state, they have to respect
the convention. But the European Union as such is not a member to the convention. Now you
may say that this is less of a problem today than it was 20 years ago. Why? Because 20 years
ago there was no charter of fundamental rights of the European Union. Nowadays we have that
charter of the European Union. However, there are still some problems. Let me give you one
example, that is the famous … case, you may have heard of it. Now, what happens in the case
is this. You have a Turkish airline company. And they lease an airplane, from a former
Yugoslavian company. That former Yugoslavian company is subject to a list of sanctions of the
United Nations because of the war in Yugoslavia. You see the problem. So, there are UN
sanctions. The European Union incorporates these sanctions. Which makes that every member
of the European Union has to implement these sanctions. Now here is the problem. The airline
company flies its company to Ireland for maintenance. Now the Irish company realizes that
there is an airplane that belongs to, that is owned by a former Yugoslavian company. They seize
the airplane, it remains here. Further to European Union law. Now the Turkish company says:
what is this? We lease this plane, we need it. What happens is, they start a procedure in Ireland.
Basically, they say give us back the plane. In that domestic procedure, the problem comes up
of the European Union law. Some fundamental freedoms, property rights, all that stuff. But,
apparently there is no problem under EU law, so Ireland says there is no problem we seize it,
we were entitled to do so. The case goes to Straatsburg, because the Turkish airline is not
convinced, and they say listen: I will use this plane, I have a property right. Art 1 of the protocol.
Ireland is interfering with my property right. Do you see the problem for the Irish state? The
Irish state has to defend itself before the Straatsburg court, using law of the European Union.
So what to do? Ireland respects the convention but also EU law. And they risk to be drawn
52
under the convention before the Straatsburg Court. That is, in a way, a conflict. And this
happens in a lot of relations, in which a state says: the problem in this case is the legislation of
the domestic practices on not so much domestic practices on decisions we have taken because
we are sovereign states. We are facing legislation that we adopted because we are organs of
the EU. Now what does this straatsburg court do? It creates what is called the boscourse
presumption. You are all aware of this. And we know that there is one thing that lawyers do
when they have a problem that they can’t solve. We create a presumption. And that what the
court does. They realize that if they go straight ahead, that they risk a conflict with the EU and
with the Luxembourg Court. So they say listen, we presume that under EU law there is a similar
protection as under the European convention. And there was the preliminary ruling and there
were those guaranties, and so the presumption can be written, it is possible, but only in
exceptional cases. So basically, in order to avoid an open conflict between the law of the EU
and the straatsburg court, so they say let’s consider that as a matter of principle, the protection
is equivalent. Of course, it says in a particular phase, when it appears that manifestly there
would be deficiency when we have comeback. Now the point is, from a human rights
perspective, you can wonder why is it that we presume that there is a high level of, equivalent
level of protection within the EU system and why don’t we apply a similar reason to the national
states. Would we accept a reasoning, for example someone brings a case against Belgium,
would we accept a reasoning saying: well as a matter of principle we assume that fundamental
rights protection in Belgium is equivalent. And only when it is manifestly deficient, would we
accept that? The European convention system would break down if we were to accept such
reasoning.
But from a diplomatic point of view, you can easily understand why the court said what it said.
It shows that it would be a preferably thing to have the European Union as a party to the
European Convention on human rights. And the first steps in this aspect have already been
taken. Years ago there were problems, technical problems within the European Union. But the
treaties changed, and article 6 of the treaty of the European Union clearly said that the EU is
going to become a party to the European Convention of human rights. And the negotiations
took place. Negations between the EU and the Council of Europe, on how to find a solution.
And they found a solution for the problems. They said, in terms of proceedings, we are going
to consider EU as if it were a state. There is a mechanism on how to appoint the judge on behalf
of the EU in the straatsburg court. And they even have a solution on the financial contribution
of the EU to the budget. But what happened?
53
Les 5 (18/10)
Eerste uur
Okay good afternoon. Any questions? Is everything still clear? Can you hear me? Okay. So,
you've had a week’s break, so let me briefly remind you what we were doing. We discussed in
a nutshell international law and then we addressed the regional human rights protection.
Regional means the functioning of European law. We mentioned things happening in other
countries but then we focussed on Europe. And in Europe as I ... (*meisje in aula vraagt om
beter geluid*) Can you hear me like this? Is this better? So right, Europe: basically 3 –
- The European Union on one hand and;
- The Council of Europe on the other hand.
The Council of Europe will be the important institution that will be mentioned today, tomorrow
and obviously in the weeks to come.
(A) The European Union: But we stopped our class discussion discussing precisely the European
Union, and you may recall that we had a discussion on whether the European Union was going
to access to the European Convention on Human Rights. And I told you that there was a legal
opinion given by the Court of Justice. That's where I stopped. With a cliff-hanger, and I said:
you know what they decided? And then I walked away. So now you had a week to think about
it: what did they decide? Was anyone so eager to check what they decided in their opinion?
That's why I like my university so much: 600 students and professors try to be interactive, ask
them questions, thinking that out of 600 students someone will dare to answer. Okay you're
right: I'm paid for the work, you aren't, but then I don't want to read things like: "classes should
be more interactive". No, you don't want them to be more interactive. You want you professors
to teach, so I'll tell you what they decided. They decided, strangely enough, that there were
some problems, so it was a 'no'. And then many people were extremely shocked. I'll give you
the reasons why it was a 'no’ but let me tell you now that many people were shocked and
54
surprised to read that the Court of Justice intervened basically at the end of the deal when all
the negotiations had arrived at the debate, the compromise, the Court simply said 'no'. Then,
in turn, they were surprised by the reactions of scholars, academics and human rights people,
and so now what you can read and hear is people from the Luxembourg Court somehow
downplaying the impact of their advice, of their legal opinion, by saying: "it was not so much a
very blunt 'no', it was only about some problems that could easily be solved".
But however, if you have a look at the arguments the court of justice developed against the
compromise, against the solutions that were put forward to make the whole thing work, there
are some fundamental issues there:
1/ The first probably the argument that there is a serious risk according to the Luxembourg
Court that applying European Convention standards to the EU system, could bring about that
the criticism of EU law is a fact. Now yes, that is in a way a possible effect. That is basically what
can happen: what will happen is that the Strasbourg Court ultimately reviews EU law. Now my
question to you is: is that so different from the hypothesis or from the things that are happening
today with all and each individual and single legal order?
Example: That is to say take France. If you bring a case against France and you have exhausted
your domestic remedies, ultimately you go to the French Cour the Cassation, they reject your
appeal, and then you go to the Strasbourg Court. Now what happens there? Well ultimately
the Strasbourg Court will review French law against and assess it in the light of the European
Convention. The European Convention being then the highest law. And, as we will see in the
weeks to come, in case of conflict, the domestic legal orders may have to change their legal
system on those precise points. And this is what is happening all the time when the Strasbourg
Court decides that a national legal system violates the European Convention on Human Rights.
Now you may say this is a violation of the unity and the privacy of the national domestic legal
order. That's a way to address the question. But on the other hand, that is the consequence of
signing up to the European Convention on Human Rights. So, if the political decision has been
taken that the European Union should access to the European Convention on Human Rights,
then the political decision is very clear: yes, they wanted the Strasbourg Court to be, let's say,
the ultimate resort, to be the highest norm. So, I'm not saying this point is mistaken, I'm only
saying that this point is somehow relented, because it can't be a conclusion of this process,
since it is the very beginning of the process. So that is one issue.
Another issue is that the principal of mutual trust could be jeopardized. The Strasbourg Court
then being able to somehow assess and review once again legal situations where Convention
applies in situations where perhaps you have to say: "Well those states should trust each other
and are not used to assessing these kind of political situations, since there is a mutual trust
idea".
Example: Now this again is not so new, and for those interested in that area, think about the
whole discussion we have nowadays on the European Continent concerning the asylum
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problem. We have European legislation on how to deal with asylum questions. The famous, or,
according to your point of view the infamous, Dublin rules. They basically say that, and I'm now
really simplifying it, when a third country national enters the European Union, asylum should
be asked in the country in which the third country national entered the European Union. So, if
someone enters the Union through Italy and then travels to Denmark and asks for asylum there,
the whole system is based on the assumption that Denmark should send the applicant back to
Italy and that asylum should be asked or applied for in Italy. That is the EU system. And that is
somehow based on this idea of mutual trust. It's based on the idea that human rights are, let's
say, equally protected in Denmark and Italy or, in more abstract terms, in each country in the
Union. Now you may have heard of the M.S.S. case against Belgium and Greece, whereby
Belgium sent back someone who applied for asylum to Greece according to the EU legislation,
and ultimately the case was laid out before the Strasbourg Court, and Strasbourg both
condemned Greece and Belgium: Greece because of the poor quality of the reception
conditions in Greece; Belgium because of the fact that it should have known that the quality of
the reception in Greece was so poor, that no care was taken of asylum seekers, in a decent way
at least, in Greece, and that they should not have been sending people back to Greece. So,
Belgium simply could not develop the argument, which is an argument so at the heart of the
European Union project, that said: "yes, but I trust my co-Union member Greece that it respects
the minimum level". So, the Strasbourg Court simply saying: "this is EU, and therefore we don't
have to do anything anymore", is not enough. Now of course, you can see how such an
argument in a way runs counter to the very principles or ideas underlying the European Union,
where the idea precisely is that you trust your partners, so that if once, for example, you release
something on the market in France, theoretically, this good or this service can be provided in
the rest of the European Union and not every state is going to review all over again all tests and
so on and so forth. So, you see that potentially there is a kind of conflict and the Court in
Luxembourg was aware of that.
There were of course some more technical problems. In the EU treaties there is a provision that
member states will not bring their legal problems before other international courts or tribunals
than the EU courts. So, whenever EU member states have discussions, disagree on EU law
matters and they think it should be brought before a court, it should be an EU court. Now here
there is a problem obviously, because you could argue that in these cases it is not excluded,
that once the EU becomes a party to the Convention, that states bring claims, the so called
'inter-state applications', to the Strasbourg Court under the European Convention. Now you
may dispute implying that in a way, legal problems that basically concern EU law or that are
highly determined by EU law issues, are brought before the Strasbourg Court. So there again,
that could be a problem.
There was obviously another problem, which was a problem related to the so-called
competences in the common foreign and security policy, where the Court of Justice has no
jurisdiction or at least a very limited one and where once the EU would access to the system,
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the Strasbourg court would have competence. Which then again would be somehow a little bit
striking.
The whole question now is: are these serious problems/fundamental problems, or are these
problems that could be solved? At first, when you read the legal opinion against the background
of these long negotiations that took place, I think the only answer is: 'no'. As I told you, the
Luxembourg Court seemed to be a little bit surprised by the massive criticism on that opinion,
on their attitude to the question, and they now seem to say: "well listen, these problems can
be solved, so this should not be read as an ultimate 'no', it is a 'no, but there is hope'". Now if
you know and listen what is happening or what they are saying in the Council of Europe, they
rather feel that it is a 'no'. So, the idea that the EU is going to access soon to the Convention, I
think that's something that for quite some years will be on hold. Not the least because, never
forget, that within the council of Europe, obviously, not all states are EU member states. So,
the Non-EU member states in the Council somehow lost patience. They do not feel so
concerned about these EU issues, and they have the feeling that they don't want to invest a lot
of time in negotiations where in the end, you didn't know what was coming out of it. So that's
where we are at present.
Now, maybe this should not be on the record, so this is an off the record comment from my
side: I would say never underestimate the kind of 'institutional pride and prejudice'. Because
we can have legal, technical debates on the EU accessing the convention and all the kind of
problems this will entail, but in the end, this is also - I'm not saying only, I'm saying also - a
matter of deciding, somehow, which court will be Europe's most important one. Which court
will be the leading court? Which court will have the ultimate say? It can't be denied that if the
EU would access to the Convention, in the end the Strasbourg court will be Europe's highest
court. And the question then is whether everyone is willing to accept that. I can imagine that
there are people who think that this should not be happening and that this can be a matter of
institutional logic. This can be a matter of merely personal pride. This can be a matter of legal
considerations or opinions. I don't know. But I think this is a consideration that should be taken
aboard. That's why I would say I don't know whether in my career as a law professor, I will be
one day able to explain students that the EU is a party to the Convention. I don't know this. You
always have to be very cautious when predicting the future, but I would be highly surprised to
see that. Hopefully I'm wrong. I think it would make things much easier for everyone, but
anyway that's where we are. So, at present, what is applicable is still the Bosporus presumption.
Now, you could have thought that once this opinion was given that a lot of people would not
only be surprised, but that some people would be, let's say, terribly irritated. And that it would
trigger somehow a kind of revenge period. And then you all know, as our Italian friends would
say, revenge is a dish best served cold. They mean that if you want to take revenge, you don't
do it immediately: just be patient and then strike. So, the question was: is the Strasbourg Court
going to change its Bosporus presumption? Because mind you the Bosporus presumption, we
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have discussed it previously, was very generous towards EU law. Whereas the legal opinion
from the Luxembourg Court was not necessarily so generous towards the Strasbourg Court. So,
you could think the next time there is a Bosporus-kind of case coming up in Strasbourg, maybe
the Strasbourg Court will then depart from its Bosporus presumption and be much more
severe. And there we have to say that in the Avotins case, one of the first cases that came up
after the legal opinion, dealing with the execution in Latvia of a legal decision rendered by a
court in Cyprus, that basically there are fair trial issues raised before the Latvian Court by the
party that has been condemned in absentia in Cyprus, and then starts to argue and says: "listen,
here I see some article 6 issues", whereas the other party said: "no, everything that has been
done was in rhyme with the EU legislation on private international law etc., so there is no
problem at all". You see that the Strasbourg Court still applies the Bosporus presumption. The
question is, however, to what extent and how long will it still stick to that presumption. That is
something we will have to wait for.
So that is basically the essential point in EU law and human rights: this access of the European
Union to the European Convention on Human Rights. Since this is not done, we are still with
traditional legal instruments in the EU and we now have of course the charter of fundamental
rights, so you could argue that this accession is less urgent than in times where there was no
such thing as this charter. So that's one big thing about the European Union.
2/ A second thing that I think I already mentioned last class, is of course the way human rights
are incorporated and integrated in the EU's foreign policies. There’s a special class just for that,
so I’m not going to say too much about it here. I think I told you already that the position of the
European Union weakened a lot in international relations. Precisely because on one hand, well
I don’t know if the EU is always an example. Here again things such as the Turkey deal, they
don’t inspire a lot of trust in the rest of the world. On the other hand, second point there, as
trust is concerned, obviously if you have a look at what is happening inside the EU today (think
about Holland, Hungary, things happening in Spain, populism in Italy), maybe we are not at
present the ones to convincingly argue about the importance of human rights and that they
must be respected on the international scene. This is also a point to be taken into consideration.
3/ Third point is that Europe is no longer the only player in the world, there are other states
willing to engage with developing countries, sometimes on conditions that are in a way more
favorable to them. They are sometimes not always bothering, stressing, imposing those heavy
HR obligations, because they focus on sovereignty to be respected. This weakens a bit the
position of the EU when it comes to HR in foreign policies.
4/ Last point on the EU and HR is the development on the fundamental rights agency of the EU
(hosted in Vienna): basically, it was created to find racism and intolerance in the high days of
racism in a lot of countries (ex. Austria, France, Italy, Vlaams Belang) → end of ‘90. There was
a particular focus on fighting racism and intolerance and the need to create policies and
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awareness. Fighting racism gradually turned into a real HR agency, a fundamental rights agency,
not limiting itself thereby to issues of racism, intolerance and discrimination only, but also
fundamental rights. It is assisting european politicians, and basically everyone interested in the
topic, with information. They undertake research, surveys, they come up with policy
documents, all kinds of analysis and scientific work which is useful (can be used by politicians,
but also by students).
This is in short the story of the EU.
(B) The organization for security and organization in Europe: A third organization (apart from
the EU and Council of Europe) - probably not the most important one: Organisation for security
and organization in Europe. Historically it has been important. In the first place it wasn’t an
organization, more like a conference (Helsinki conference). It was extremely useful in the 70s.
It is a very particular EU organization (contrary to EU and Council of Europe), because the
countries of EU were involved, but also USA and Canada. Back in the 70s, when you had the
Cold War, those 2 blocks, these nuclear powers basically investing all the time in nuclear
capacity = countries were racing against each other. The 70s were frightening times if you were
living in Europe: nuclear missiles behind the iron wall against the same thing in the US. They
had the capacity to destroy 100x, 1000x, I don’t know, the world. They were using Europe as a
battlefield. The only way to get out of this race was negotiations, but WHERE? They needed a
place and a context to do so → Helsinki conference = let’s create a space, a venue, let’s create
a system, a context where the east and west could still talk to each other. They’ll make little
progress, but little is better than nothing. It was important that they remained on speaking
terms.
At the end of the 80s, there’s the collapse of the east bloc, the Soviet Union, it all disappeared.
You would say, anyone would expect an institution to say “listen, we’ve done our job, we
reached our aim, now it’s time to close everything down”. This is ofcourse not the sociology of
institutions. They realized that their raison d’être disappeared and that’s when they turned
themself into a real organization for security and cooperation in Europe. You can wonder what
they’re doing now. It is dealing with issues as media pluralism, minority rights... But most of us
know them from their activities as electoral observers (important issues in a democracy, but
you can ofcourse wonder whether this is so fundamental that this need a specific organization).
(C) The Council of Europe: The oldest one, the most important one: Council of Europe. An
institution that has already been created in the late forties by western EU states to protect HR,
rule of law, democracy as we say it nowadays. If you compare it to the EU, it is an institution
that focuses at first on non-economic issues, more on values and protecting the idea of human
dignity. The point is if you do ever read about how this Council of Europe was created, you will
see that Churchill played an important role. The Brits played an important role. Since it is not
dealing with hard eco issues, market issues… more the immaterial aspects of mankind, It has
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often been detected as a kind of… how would you say… a kind of leftist politically correct
institution. In Dutch: linkie winkies. This is the image it carries.
I am reading a wonderful book by an Australian author, I think from Italian descent. He is
showing how wrong this idea is. He shows that the creation of the Council of Europe and
especially the EU Convention on HR is a profoundly conservative project. He says, contrary to
everyone that is talking about the leftist judges of the convention, that this is completely not
true. The drafters were British conservatists and French personalists. Personalism was a
philosophy that was back in the 50s rather popular in France amongst catholic thinkers (Eg.
Jacques Maritain). According to this historian and this new historian insight, the Council of
Europe and the EU Convention on HR owe a lot to precisely conservatist and centrist thinking
and it is not wat is commonly believed or at least in recent times often said, it is not a document
whereby a leftist elite tried to impose it views on a continent and turn over the traditional
views. I am not quite yet done with the book, so I can’t tell you exactly how it finishes. People
were so afraid of Stalinists, it’s immediately after the second world war. Stalin had an enormous
reputation. Those conservatist and centrist thinker wanted to come up with a shield, a kind of
catching stone, to prevent leftist thinkers, politicians, perhaps “communistilizing” west, to
impose their policies on the west against traditional, more conservative ideas. They wanted to
save these in a universal EU convention, so that it would be more difficult for western politicians
to apply policies that counter to those ideas. I wanted to inform you about these insights. They
should be worldwide be kept in mind.
The Council of Europe, the more of a non-economic European integration, as a community of
values. It’s not by chance that this historian precisely says that, for some of the drafters, they
dreamt of a renewed European Christendom. That’s what they had in mind. So then they came
up with the European Convention on HR and later obviously with other treaties that are
important in the HR area (EU social charter, non-torture convention, framework convention on
the protection of national minorities, also in the area of sports, convention of the protection of
landscapes etc…). I must admit that, if it was not for the EU Convention on HR, that most
probably few people would be working and dealing with the Council of Europe. Its importance
is completely dependent on the importance on the EU Convention on HR. its success is
illustrated by the fact that after the fall of the wall, quite soon the Council of Europe enlarged
to central and eastern EU and most of the former Soviet Union Republics. This means that at
present we have 48 member states. Like the council and the courts say: we are the court of
850 million Europeans. Once again, and it’s quite similar to what is happening in the European
Union, you had this enlargement that was driven by the fall of the wall, so immediately it’s
decided to let all the new states enter the organization and all would be very happy to apply
the convention. Nowadays you may wonder whether that was the smartest thing to do. We
now see (and tomorrow Paul Lemmens will be talking about that) the court is under an
incredible suffering, there’s a huge increase of cases, they can’t handle it. Many of those cases
come from particular states. There’s a serious problem with Russia, and huge problems with
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Poland and Romania. Where it was hoped that accession and the integration in the system
would be beneficial for the new states, others say that the contrary is true. In fact it wasn’t so
beneficial to the system as such, to the institution as such. Ex. there is a huge clash going on
with Russia, it’s stressing the idea of “our traditional values”. They had huge problems in one
case of equal treatment of men and women in terms of eternity leave for service men. For the
Russians it was very important, and they were extremely offended by the idea that a service
man of what was formerly the red army, that such person was entitled to have eternity leave.
That a female service person could apply for it. Especially that this was something imposed on
them by the EU Court. Ever since there are conflicts. In a way Russia is boycotting the institution
by not paying its contribution. This is a kind of blackmailing. The whole discussion now is
“Should we give in and keep on board? Should we go look for compromises that they would
pay us, because the council already has problems in terms of budget? Or rather should we say:
walk away, leave us alone, we’d like to continue with our organization?” But then what are we
saying to so many Russian people that want to bring their cases to the Strasbourg Court? Aren’t
we then giving up the HR protection of the people that need us? That is the debate. I don’t
know what position is the best.
You should keep in mind that the organization has enthusiastically enlarged in the beginning of
the 90s. In the first years this seemed to be a success, but nowadays we are witnessing more
and more problems, that had been gently overlooked in the early days, but are, ever since,
pretty serious. Not to the extent that they are threatening the existence of the institution, but
they have to be solved.
Tweede uur
Someone reminded me of something. To the Dutch speaking students: the Flemish legislation
says classes can be taught in another language than Dutch but it is a fundamental right, at least
in Flanders, of students to take the exam in Dutch. You can decide whether you make the exam
in Dutch or in English, that’s no problem. Okay? Unfortunately, no other languages are allowed.
European Convention on Human Rights (1950)
a. History
In the aftermark of the Second World War, the Holocaust being very present in the minds of
many politicians. The Nazi crimes being very present. There was already the idea to create this
European organization and to protect human rights, in a way, to protect what they believe to
be their idea of ‘European civilization.’ It doesn’t come therefore as a surprise that the first
important step they undertook, is to come up with the European Convention on Human Rights
(1950). A convention, and here you see of course the similarities, it was also the time that at
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the level of the UN they were working on, or they adopt, the universal declaration. And that
they are later on moving to the covenance.
It is important because obviously there is an influence. If states are participating in those
drafting processes at the international level, obviously similar ideas pass through and affect the
drafting process of the regional level. If you have a look at that very original text (the
convention), you see that essentially it is a text about civil rights. Not so much a text of political
rights, in the protocols, the right to vote for example. Essentially a text on civil rights, first
generation rights. You establish norm creation. The norms are essentially first generation rights,
civil rights. The second point is not only about creating a norm but also about creating
monitoring mechanisms. Here you see that at first you have a rather complex mechanism,
because what is created are basically three instances that can deal with compliance. That is:
(1) The European Commission on human rights;
(2) The European Court on Human Rights and;
(3) The Committee of Minsters.
It’s a quite complex mechanism, it has changed over time. We will see in a while how this
changed and why this changed. Keep in mind: norm setting on the one hand, monitoring
mechanism on the other hand.
b. Rights guaranteed
1950: I told you, this means that throughout the years, the right guarantees are completed.
These are the so-called ‘protocols’. Perhaps the most famous one is article 1 of the protocol, it
is about property rights. But you have other rights. If you have a look at the protocols, you
basically see that there are two types:
(1) Protocols adding new rights, thereby completing the catalogue of rights in the convention;
(2) Protocols changing the institutional designs, the mechanism of the court, and the
monitoring mechanisms. That is basically what is happening.
Two or three days ago I read in a rather popular opinion website an article against the European
court and against the European Convention on human rights. The author said seriously that the
European convention can’t be changed or modified. How can you say such a thing when we
have now protocol 15 and 16 and so on. Yes, it can be changed and it can be modified. And it
is not only a matter of ‘it can’, but it is a matter of ‘it happened’, and it happened on many
occasions. If you dig into the convention you will see classical rights: the right not to be tortured,
the right to life, fair trial rights, freedom of liberty, freedom of expression, freedom of thought,
freedom of association…
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c. Shared responsibility of the States Parties and the European Court of Human Rights
Already right from the start it was as well the lead that protecting those rights was not a matter
of only international associations, of course dealing with the rights, but it is a shared
responsibility.
1/ The idea throughout the whole system is that the first, the most natural actor in HR
protection is: the domestic legal order, the state. It is first up to the national states to protect
the rights of the people within their jurisdiction. And then, their role is only secondary, it’s only
after that it has become a pattern that states fail to do what they are supposed to do. As soon
as we start discussing the articles individually you will see how many times we refer to the so
called marge of appreciation, and how much it is the very expression of the idea that is not in
the first place up to the Strasbourg mechanism but it is in the first place up to the national
authorities to act. This seems to be rather important, to know that it is.
2/ The second component, sometimes overlooked by students, by politicians in debates, to the
European union. The council of Europa, and particularly the Court of HR, has known
harmonizing or unifying. It is NOT the Courts task to make or to create a kind of school. The
only thing the European court of HR has to do is to assess, to exam, to check whether national
rules do respect the European convention on HR, that is the minimum norm. This shared
responsibility means that what the Strasbourg court has to do is to look, to see that “this is fine
by us”. Obviously they will say you can go further, and that’s article 53 of the convention, it is
not prohibited for states to go beyond the minimum required by the convention. That article
says, that’s quite common in HR, that states cannot refer to the convention to lower their
national standard. “Under national law you would be entitled to the higher standard, but since
the European Convention only applied to respect a lower level you must not complain about
the fact that we are giving you a lower protection.” No, the idea is that the highest protection
must always prevail. The court is there in order to examine whether a minimum protection. It
is a matter of protecting a minimum core, it is not about imposing one model on Europe. I think
that is something very important. That is the general approach to the rights.
d. The Strasbourg control mechanism
Rights are one thing but the success of the convention is perhaps much more a result of the
Strasbourg control mechanism that proved to be extremely effective. Now under the
Strasbourg control mechanisms, you have to distinguish two kinds of applications. There is a
possibility of the so-called ‘inter-state application.’ On the other hand there are the ‘individual
applications’: Obviously individual applications are the most important ones, the most frequent
ones.
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1/ Inter-state application: you can find that on the website (it is not always very clear), since the
beginning up until now we do not have until 30 inter-state applications (just to tell you how
rare they are). Last year we had some. Concerning Russia, there are a lot of complaints Ukraine
vs. Russia. And they are complaints, or concerning the situation Georgia vs. Russia. But I think
that you all can see how diplomatically difficult these kinds of cases are. You understand that
off course there are few incentives for states to start and complain about behavior of other
states, in most of these states’ complaints it’s really about states directly affected. Hardly,
where you had some cases: in the early days of the system at the time of the Greek colonial
regime. You would find some other states fighting complaints in Strasbourg about the way the
Greek state acted, but these are off course extremely rare.
2/ Individual applications: Individual means non-state. Obviously you can be an individual
person, you can as well be an association, a corporation. A private legal person can be filed its
application. I told you if you want to understand the mechanism you should distinguish
between the times when the court, when the monitoring mechanisms were the mechanism of
a handful of states, and times where after enlargement the council of Europe became the
whole organization of much more states. So before the reform of the court (1998) you had a
system that was basically with the two most important institutions:
- The European Commission on human rights and;
- The European Court on HR.
The European commission had a kind of filter-function. The Commission would typically deal
with admissibility issues. And then, if the commission found a case to be admissible, it would
give a kind of opinion on the case. “We think that it is admissible, there is a violation, or not.”
And then it depended a little bit on the states involved what happened further. Either you had
to do with states that already recognized the jurisdiction of the Court; and then the case could
be brought to the court for a judgment. However, not all states did recognize immediately the
jurisdiction of the court. It was more a matter for the committee of ministers to deal with the
case. Obviously these ministers, diplomatic organization, in 99% of the cases they would simply
say that the commission’s findings were okay. So in a way agree with the commission findings.
It is important that you see that there are these two institutions, and to understand that for
many states. France for example is a quite striking example because France rather late ratified
the jurisdiction of the court. For some states it was not self-evident. You see how, and that is
an eternal discussion that’s always coming back, that how states are always torn in between
two values or principles. On the one hand they always want to defend HR and they think it is
important and they are detached to the value of HR. While at the same time they find it so hard
to give up state sovereignty. The mere fact that what they typically call ‘foreign judges’ come
and decide in a legally binding way the behavior of states was not an easy thing to accept. That’s
why it was rather in a hesitating way that cases were brought before the court and that the
jurisdiction of the court was accepted.
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Now in the nineties it became clear to anyone that the way the system functioned could not
continue and that reforms were needed. That’s why we adopted the 11th Protocol, adapted to
the new and enlarged EU context. The most important things of this Protocol were that the EU
Court of Human Rights became a permanent court on HR with permanent judges. Secondly,
the commission and the court were merged, no more EU Commission on HR. There was a lot
of confusion in papers on all the Commissions for once law students were taking into
consideration. If you rectified the convention it means that you automatically recognize the
jurisdiction of the court. Politically, ratifying the EU convention on HR equals recognizing the
jurisdiction of the court on HR. This is important.
What with the Comity of ministers? The activities of the Comity became limited. There were no
more decision-making within this Comity. So if you have a look, you see that in a matter of the
control mechanism of HR, it’s depoliticized. It is no more a matter of giving a lot of freedom to
states to whether they accept the jurisdiction of the Court or not. What you see is that it is not
anymore a matter of diplomacy.
(!) Articles 34 and 35 of the European Convention, you should read them together with the
rules of court especially rule 47. You can find all that on the website of the Court, they are
extremely well explained. Check it out if you are een braaf studentje or/and if you are a lawyer
and want to bring a case to Strasbourg. If you bring a case before the court, you should realize
that 90-95% of cases are declared inadmissible. Notice that they, the Court Members, are
becoming extremely strict. If courts are too popular they can’t keep on working like that. What
happened? There were too many cases, so they had to become stricter. Every court in Europe
became very strict in the admissibility criteria of their cases.
What are the admissibility criteria?
1/ You have to bring a case against a state (→ a case against a private party is not allowed.) It
could be the state doing things, but also the state omitting things.
Ex. a controversial case: climate case in the Netherlands: do the Dutch authorities sufficiently
protect the climate? It’s fascinating to see how the court of appeal relies on the EU convention
of Human Rights. The case is now send to the Hoge Raad, imagine that they squash the decision
and that ultimately after a long procedure the applicants have their claim dismissed. Then they
could bring their case to Strasbourg because the state is omitting things. They are not
sufficiently doing things.
2/ It must fall within the jurisdiction of the state: jurisdiction is essentially a territorial notion.
States has the jurisdiction on their territory. There are situation where a state has extraterritorial competences.
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Examples:
- Iraq: if there is a prison that is runned by and controlled by the British army,
then prisoners within that prison can ultimately bring a case in front of
Strasbourg against the UK, the argument be: you have here an extra-territory
control.
- Italian case Oceana: coastal service, they are controlling the Italian coast in the
open seas. Those people have to obey the Italian officers and they need to
respect the EU convention on HR. The Court says that this is a clear case law on
extra-territorial effects.
- There is a huge debate going on on how Spanish authorities ‘intervene’ in
Morocco in the immigration issue. How can you protect your water? What about
acts that are committed on the border?
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Les 6 (19/10)
Eerste uur
We are continuing with the regional system of human rights protection. We started with the
first condition of admissibility about the jurisdiction of the court.
A) Conditions of admissibility of a complaint before the European court of human rights:
1. Jurisdiction of the court
The case can only be brought before the court against another state. The state is responsible
of what is happening within its territory and sometimes also for what is happening outside its
territory.
The court has no jurisdiction with respect for an application brought against, for instance,
individuals or entities. So you can not complain about a human rights violation by another
individual or a company. Here you have to go to domestic courts or, if it’s a serious violation,
you can go to the international criminal court. This does not say that human rights violations
committed by individuals are totally irrelevant under the European Convention. First of all it
might be possible for domestic courts to apply the provisions of the European Convention in
relations between individuals. That is the so-called ‘horizontal applications of the provisions of
the European Convention’. It’s a matter of constitutional law.
What can happen before the European Court in Strasbourg is when an alleged victim complains
about the state, that they did not offer enough protection against individuals. For example, I
am someone who rented an apartment and the landlord has kicked me out and I say that this
is my home and I’m protected by article 8 of the European Convention. I’m trying to obtain a …
of that decision before the domestic court and they all reject my claims. I might go to the
European Court and say that the state did not give me sufficient protection against what the
landlord did. They did not protect the right to respect of my home. So, in principle, no possibility
to directly complain about an act committed by an individual.
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What you also can’t do is complain about an act committed by an international organisation.
For example, European Union or United Nations… They are not states and therefore can’t be
the respondent party before the European Court.
Again, this has to be nuanced. Sometimes states are so closely linked to an international
organisation that you can complain about acts adopted by international organisations. For
instance, a national state that is taking national measures by implementing national acts. The
EU adopts a directive, it is then for the states to implement the directive by adopting laws. This
implementing acts are domestic, national acts. And an individual can complain about these
national acts before the European Court of Human Rights.
The European Union has adopted the Bosporus Doctrine that has been mentioned already. It is
about the airline company where Ireland has taken measures implementing an EU directive.
The court said: when a state is implementing an EU act the state is responsible, but there is a
presumption that the act is compatible with the European Convention, provided that the
international organisation concerned has sufficient human rights protection. The court found
that that was the case for the EU and therefore the decision taken by the Irish authorities was
presumed to be compatible with the European Convention. The presumption can be rebutted
in individual cases.
There have been other examples before the European Court. Where, for instance, national
states implemented decisions taken by the United Nations Security Council. There the court
looked very closely at what the domestic court had done, because there was not a presumption
of compatibility with the Convention, because it was not the European Court, but the Court of
Justice of the UK.
2. The applicant must be able to claim that he or she has personally been the victim of the alleged
violation
This is the ‘victim requirement’. This is an important requirement. It means that before the
European Court there can not be complaints brought by ngo’s on behalf of victims. The victim
himself must take the initiative to complain. In many cases it is not a problem, it is quite clear
that the applicant is a victim. The applicant was for instance a party in the domestic court. But
sometimes issues may arise after the application is filed. Things have happened at the domestic
level so that the applicant might have lost his/her victim status. After being convicted, for
instance, the head of state can grant a pardon to the applicant. Is that applicant then still a
victim? This kind of questions arise. Or, for example, after filing a complaint the applicant starts
other domestic procedures to get compensations from the state. And the domestic court has
decided that the human rights are indeed violated and orders a state to pay compensation.
That would be typically a case for the European Court to say that things have been redressed
to the victim and that the applicant is no longer a victim. So the application have become
inadmissible.
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3. Exhaustion of domestic remedies
In the materials you will find a judgement of the European Court of 2014 in the case of Vuckovic
and others v. Serbia. This is still the leading case. It is linked to the fundamental character of
the Convention as offering a subsidiary mechanism for protection.
The primary protection is to be afforded at the domestic level by the domestic authorities. You
must be able to complain before domestic courts. Only if all the domestic remedies available
have been exhausted, can an applicant bring a violation before the European Court. There is a
lot of caselaw on what this means. You do not have to use all the remedies imaginable, only
the effective remedies should be exhausted. It all depends on the circumstances. If someone is
detained and it takes a long time, the possibility to obtain compensation somewhere while
detained is not an available remedy. As long as you are detained, the only effective remedy is
a remedy that gets you out of prison. After being released, compensation remedies may be
effective. It has to be a remedy that may offer redress.
In the case before the European Court there was a discussion if the applicants should file an
appeal with a supreme court that can only be examined in matters of law (court of cassation).
Is that a remedy to be exhausted? That depends on what the Supreme Court could do, but
don’t assume to easy that you can’t go to the Supreme Court. In a case involving France (Sylvet
vs. France) it was about the length of pre-trial detention and whether or not the length of a
pre-trial is still reasonable. You have to assess facts and the applicant had not gone to the
French court of cassation. He asked why he should do that because the court of cassation
cannot assess facts. The European Court said that he had to go to Cassation because the court
is competent to examine the decision of the lower court and if the conclusion of that court was
justified. Supreme courts do not always like this case law because they receive a lot of
inadmissible applications.
There is also a second aspect. You must also invoke the Convention complaint before the
domestic authorities. Not necessarily in terms of the Convention. For example freedom of
expression, article 10 of the Convention, you may invoke this article of the Convention, but you
might also invoke the similar provision of the Constitution. In some countries the Convention
has no direct effect, so you must find a provision with a similar protection. So it is sufficient to
invoke the Convention in substance.
4. The complaint has to be filed within 6 months after the final decision within the framework of
the domestic remedies
You cannot artificially prolong the period with inefficient remedies. Most of the time it is quite
clear: within six months after the decision of the Supreme Court of the country. Probably this
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will be reduced to 4 months in Protocol 15. All 47 member states has to ratify the protocol. It
will enter into force soon (now 45 ratified).
5. in principle the applicant must have suffered a significant disadvantage
There are instances where the applicant was a victim of a human rights violation but with no
real consequences or insignificant consequences. This was a rule that would allow the court to
apply the principle ‘de minimis non curat pretor’. ‘The judge should not get involved in very
small things’. This has been introduced in the European Convention. This was highly
controversial. A lot of people thought that the European Court would reject applications that
might be well grounded, but they would find it not worthy to look into the application. There
are escape clauses to this significant disadvantage condition. So it is not always possible to
declare a application inadmissible because there is no significant disadvantage. But practice
also shows that the European Court is not using this condition very much. Usually it would be
possible to argue that there has been or has not been a significant disadvantage, there is
already another reason why it is inadmissible.
One of the first applications, Karolev v. Russia (not sure this is spelled right), was about someone
who brought a complaint against the state before the domestic court. There was an issue on
court fees that had to be paid and the court ordered the state to pay the fees for the applicant
and the applicant complained that the state had not yet reimbursed the compensation. The
state is obliged to reimburse. The court fees were 22 Russian Roebels (less than 1 euro) and
the Court said that there was no significant disadvantage. The case was declared inadmissible.
(B) Admissibility requirements relating to the merits of the complaint
Last series of conditions are two admissibility requirements relating to the merits of the
complaint. There is something contradictory here: admissibility and merits. It allows the court
to have already a look at the merits and to declare the complaint inadmissible before the whole
proceeding relating to the merits stop. Under the European Convention there are two
possibilities to declare a complaint inadmissible.
1. The complaint is incompatible with the provisions of the European Convention
It means that the applicant is complaining about the violation of a right, which in certain
circumstances is not guaranteed. Typical example: an applicant is complaining about a violation
of the right of property and the court finds that the applicant does not have any property. It is
not the kind of property that is not protected by the Convention. Or someone is complaining
about a violation of his right to a private life and the court is examining, but it doesn’t fall in the
scope of the right to a private life. So the application is inadmissible.
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2. The complaint may not be manifestly ill founded
Don’t interpret that too strictly. Sometimes it takes a lot of examination. There is a certain
discretion to the European Court to decide either that the application is manifestly ill-founded
or either that the application is admissible but that there is no violation.
When is it manifestly ill founded? First of all when it is clear that it is manifestly ill-founded
without further examination. Secondly it also it does not prefer to examine a lot of other
objections of admissibility, to save time and money, and so they say that it is manifestly ill
founded.
It is not necessary to look into the exhaustion of the domestic remedies or the victim status,
we are just going to say that the application is inadmissible for another reason: manifestly ill
founded. Another reason can be that the court says that they already had similar issues on
various occasions and taking into account the case law we say that the application is manifestly
ill founded. Which will allow a speedier processing of the applications.
The procedure before the European Court
We are going to see the procedure and i will indicate where i will make some changes compared
to the ower.
1. The filing of the application: It starts with that. The Court does not cease itself of any matter,
it has to wait until an application is brought before the Court. At the time, a simpel letter would
be sufficient to file an application. This is no longer the case, there is now an application form
on the website of the Court. I have it here in front of me. It is a 13 pages long with all sorts of
elements of information that has to be put on this application form. In the place where it is
expected to be placed. And when an application form arrives at the registry, the first thing the
registry does, is to check whether the application form is correctly filled out, whether all the
things are there, whether it has been signed by the applicant or his representative. There is
space for indicating what has happened at the domestic level, the procedures, statement of
the facts, in principle 3 pages and you can add annexes and everything in the form should be
there in 3 pages and then also 2 pages for the statement of the alleged violations of the
Convention. Why do you think that your human rights have been violated? And also pages for
explaining how the domestic remedies have been exhausted. Very formal text, formal
document! It can be existing in various languages but it is this document that has been used. I
am emphasising this because if the document is not correctly filled out or if some additional
documents are missing, the registry is not going to give the application a number, not yet. It
will contact the applicant and say: listen, we have looked at your application form but it’s not
correct, you have to do what you have to do, we are pointing your attention to the following
points. If there is still time, if we are not yet at the end of the 6th months, then the applicant
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has the opportunity to fill in a correct application form but if the applicant or his/her
representative has send the application for 1 or 2 days before the end of the 6 months term, it
probably will not be possible anymore to correct things and unfortunatly, the application will
either not be filed anymore or if so, it will not be on time and it is an application filed in out of
time. I cannot underline the importance of the requirements of the application form and I
should also indicate that where the registry says that it is a decision by the registry and by the
registry own. Judges are not involved. It’s a formal decision but which can have terrible
consequences for an applicant, no matter how well found the complaint is but for purely formal
reasons, it may will be that the application is not going to be registred and will not receive a
number and therefor the Court does not pronounce itself on this application.
Something else that I have to say about the filing of the application is that the Court has
become more strict in its reading of the complaints in the application form. This is a very
important judgement, I think not many outside people outside of the Court enough realize the
importance of it. It is a judgement of the Grand Chamber of 20/3/2018 in a case called
“Radomilja vs. Croatia” in which the Court said: we as a traditional body, we can characterize a
complaint, someone complains about a violation of article 6 of the Convention, while article 6
is not the adequate article of the Convention. Maybe we can say this can better be examined
under let’s say article 3 or article 8 are possibilities to do that. That is something the Court can
do but we cannot change the complaint, we cannot turn the complaint into another one. It’s a
restriction of the possibility for the Court to interpert the complaint. So therefor it’s very
important that the complaint is correctly described in the application form and for the Court it
is now also restraining itself, it will stick to that complaint, the way it has been described,
formulated in the application form.
2. The Interim measure: It is something I have to mention somewhere, I am going to put it as a
second point: the interim measure. There is a possibility under certain strict conditions that the
Court i cannot really say ‘orders’ a measure, the word is ‘indicates’ an interim measure to be
taken by one or both op the parties. Usually it is an indication in the government to take an
interim measure. What is an interim measure? It is a measure that has to be taken so that the
effectiveness of the later decision of the Court is still guaranteed. Typically interim measures
are ordered or indicated in cases where a foreigner is on the point of being extradited or
expelled and where that applicant has been asking the European Court to indicate to the
government that the extradition or expelsion can not take place until the Court has examined
the application, the reason is quite clear: once a foreigner has left the country, what sense
would it have that the Court would says that the expelsion would violate that person’s right?
You cannot reverse that situation anymore.
Exceptionally there are other situations, like recently the Court has indicated the Russian
government that it should take the necessary measures to take care for the health of a detainee
(prisoner) who had started a hunger strike in a Russian prison. And at the same time, the Court
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had invited the applicant to stop the hunger strike. I don’t know what the immediate effect was
of the both requests indicated by the Court but this moment the applicant is still alive, that’s
what I know and it does make sense to the Court to examine this application. So this is rather
exceptional but it is not rare, there are about I think 1500-2000 requests for such applications.
They are not based, not on the European Convention, but on rule 39 of the rules of Court and
so we always speak of ‘rule 39 requests’. It is not based on the Convention, but the European
Court has said that if a state does not comply with such a request, it may well violate an article
of the Convention, namely article 34 of the Convention, which guarantees to individuals the
right to file an application with the European Court.
The European Court I said ofcourse it is not a theoretical right, but a effective right, a practical
right, consequences from a finding violation of the European Court must be effective, must be
real. Therefor, if you make it impossible for the Court to have such a effective decision, you are
in fact violating also article 34 of the Convention, so a link between rule 39 of the rules of Court
and aricle 34 of the European Convention.
I want to add one thing that I said about 1500-2000 requests every year, but the number of
requests granted is rather low, less than 10% of these requests are granted, which means that
it is in any event a quite exceptional thing.
Tweede uur
3. The examination of the merits
Last point that I have to mention here is the Grand Chamber. The GC is composed of 17 judges
and it has 2 competences in contentious cases. The one I’m referring to here, is the one that’s
the object of Article 30 of the European Convention. It is the situation of the Chamber, while it
is examining the case, finds that the case raises important issues or where it might be a
possibility that there might be contradiction between the decision to be taken by the Chamber
and existing judgments or decisions of the Court. In that case the Chamber may decide to
relinquish the jurisdiction. That's the word used in Article 30. Relinquish jurisdiction in favor of
the Grand Chamber. At the moment such a decision is subject for approval of the parties. Each
party has a veto right and they ask the chamber to continue its examination. Most applicants
won't use its veto and most governments won't do it either. But there are some governments
who as a matter of principle say "no, no first the chamber and then we'll see whether we can
have an appeal by the Grand Chamber". Most of the time it's only a formality. And when
Protocol number 15 enters into force this veto right will be abolished. Once the case has been
relinquished to the GC, the GC will cease the matter. All the judges of the Chamber will be also
part of the GC. But of course GC is composed of 17 judges, the Chamber only have 7, 10 other
judges will take place in the Grand Chamber and everything will start anew. This is the point 3.
The examination of the merits.
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4. Friendly settlements and unilateral declarations
The convention in article 39 provides that European Court can put itself at the disposal of the
parties to try to come to a friendly settlement. This is a practice that existed in the old European
Condition on Human Rights, which was not the court but its competences have been
transferred to the new court, the permanent court. It's perhaps a little bit strange that the court
is taking the initiative itself of bringing the parties to a friendly settlement.
There is now going to be more and more use of the friendly settlement procedure. Based on
the idea that there is now so much case law on a lot of issues that sometimes it must be clear
for the parties what the solution will be (violation obviously, it's not necessary to enter into
friendly settlement if the chance is that it will be no violation). So the governments may be
inclined to accept a friendly settlement more easily rather than to have to receive a judgment
in which the European Court is going to say that again they have violated the human rights of
an individual. And we see that the governments are more and more inclined to accept friendly
settlement proposals but of course the applicant must agree with that too and there are a
number of applicants who way "no, we don't want a friendly settlement, we want a judgment
of the court".
Is this the end of the story? Well, in part. There will be no friendly settlement, that's clear. It
takes two to tango. But European Court has developed sort of a practice in which it examines
whether or not the refusal by the applicant is well reasoned. And if the applicant doesn't really
have a reason except that he would prefer a judgment above the friendly settlement. But if
what the government is proposing is very adequate, that is that the government acknowledges
that there has been violation of human rights and if the government at the same time also
offers appropriate regress that depends on the circumstances than the European Court says
more and more "we accept this offer by the government, the issue has been resolved and there
is nothing more for us to say."
And so on the basis of another article of European Convention (art 37), the Court can then
conclude that the case can be struck out of its list. This is the so-called unilateral declaration by
the government. Not accepted by the applicant, that considered sufficient by the Court for
strike out decision. This of course, you can imagine, saves a lot of work for the European Court.
No need to examine all the facts of the case, no need to repeat all the principles, no need to
apply them to the facts of the case. Simple decision, two pages, spelling out what was
declaration made by the governments, accepting that it was a valid declaration,
acknowledgement of a violation, sufficient regress, strike out and we can continue with our
business with the other cases. I think that more and more attempts will be made for friendly
settlements and if that's not possible accept unilateral declarations.
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5. The decision or the judgment in the procedure
The procedure ends with a decision by a single judge, by a committee, by a chamber perhaps
even by The Grand Chamber. The word decision is reserved to decisions taken on admissibility
of the complaint. So usually the decision is a decision that's the case is inadmissible. Then it
stops.
Very exceptionally there is an interim decision declaring the application admissible and then
saying ok now we go on examination of the merits and we'll decide it at a later stage. This
almost doesn't happen anymore. In practice: a decision is declaring a case inadmissible.
For such a decision the conclusion is mentioned at the end. Point by point, complaint by
complaint and there is even an indication whether a decision of particular complaint was
adopted by unanimity or by a majority. Nothing more. No indication how wide or small the
majority was. No indication who voted against the decision. No possibility of dissenting opinion
for any individual judge. That's for the decision.
It's not the decisions are unimportant; any of them unfortunately go somewhat unnoticed
while decision may contain very important interpretations of the convention. Do not forget to
look at decision when you have to examine a case of the court. Of course if what you're looking
for can be found in judgment then judgments are good enough but check whether or not there
is something in the decisions.
Judgments of the European Court are something else. They are not adopted by a single judge
but they can be adopted by committee, a chamber or the grand chamber. And a judgment is a
decision on the merits.
Usually containing also at the same time a decision on admissibility. Practically in all cases
admissibility and merits are decided in one document and that's been called a judgment. A
judgment is also reasoned like a decision but here is a clear indication of the votes. For instance
complaint on article 10 has been adopted by 5 votes against 2. And each individual judge may
append a separate opinion to the judgment of the court. Another difference is that a judgment
can be reviewed by the Grand Chamber (I will come to that immediately). That is not possible
for a decision by inadmissibility. Such a decision is final. A judgment is not immediately final. A
judgment when it finds a violation can also contain an order to the Sate to pay a compensation
to the applicant, a so-called Just Satisfaction. That is what you find in Article 41 of the
Convention but we will come to that later.
6. Article 43 of the Convention
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I told you already that the GC has various competences. This is the second competence to deal
with an application with a contentious case. It's a sort of internal appeal inside the European
Court. When the chamber has adopted a judgment, any losing party can apply for rehearing of
the case by the GC. It's a right to apply, but not a right to obtain a rehearing. Why not? Because
there is within the court a filtering committee of 5 judges who will decide whether or not the
case will be accepted for a rehearing.
Some criteria in article 43 but they're formulated in a very broad way so there is a lot of
discretion for this filtering panel to accept or not to accept a case for rehearing by GC. The
practice is rather restrictive. The panel meets every month and a half and they're writing about
20-30 requests for rehearing by the GC. Usually there are 2, 1 or 0 requests that are accepted.
Last two meetings was zero. No case accepted for a rehearing by GC. Usually there is one. Two
is already very much. Once the case has been sent to the GC for a rehearing it means that the
chamber judgment has lost any binding force that it may have. It's like a judgment of a court
of first instance that is losing its effects once there's been an appeal. Appellant court may
confirm the judgment of the fist instance but then it's still the judgment of the appeal. And it is
as if the judgment of the chamber disappears and we'll have to wait what GC is going to decide.
7. Execution of the judgment
Once the procedure has finished before the court either because the judgment of the chamber
has become final or there was a judgment of the GC, then the question arises what the court
should do with violation of human rights. And the Convention is not silent about this. Article 46
of the European Convention provides not only that the judgments are binding, but provides
also mechanism of control on the execution of judgments. Now you could imagine in some
other regional systems it's the court itself that controls whether its own judgments are properly
being executed, that is not the case with the European Convention, the Convention provides
that the Committee of Ministers supervises the execution of the judgments of the Court. A
political body composed of the ambassadors of the 47 Member States of the Council of Europe.
In my opinion it's a very good thing that it's not the court itself but a political body that exercises
a pressure on its members to execute judgments of the European Court.
And so this ends then the procedure of the European Court.
First of all, the statistics. You can find all documents relating to the year 2015. Of course those
documents can be updated. I would like to give some recent figures. You can find them on the
website of the European Court under statistics. Based on the most recent documents that are
available.
Pending applications on the 1/01/17:
80.000 cases pending before the European
Court. 80.000 cases waiting for a decision on
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the first of January. This is a high number, but
in 2010 or 2011 we had a record. It was
160.000 cases pending. Thanks to the single
judge, more than half of these cases will be
dealt with.
New cases coming in 2017 (= cases registered 63.000 cases.
in 2017):
How much cases were decided in 2017/ how 68.000 cases. We did better. More cases
many applications decided:
kicked out, then cases coming in. This is an
exceptional figure. Prof is not going to
explain al the reasons. But on of the big
reasons is that by one decision of the Grand
Chamber the Court disposed of 12.000 cases
(all similar cases) and the Court decided to
strike them up, not to examine them. This is
a very disputed decision by the Grand
Chamber but these were all not so important
cases. And they had already been 20.000
similar judgements done by the Court, all
related to Ukraine and to the failure by the
state to execute judgements of Ukrainian
Courts. It is to the Committee of ministers to
work out a general execution measure to
deal with all the relevant cases pending in
Ukraine or pending before us. We don’t have
to examine those cases anymore. So a high
output in 2017, which will probably not be
repeated anymore in the future.
The net result one year later on the 1/01/18, 56.000 cases.
the number of pending applications was:
For the current year, we have the statistics 33.000 new cases.
until September 2018. In these 9 months
there were:
On the 30/09/18:
59.000 cases were pending. Some delay
compared to the beginning of the year.
The state who has the most cases pending is Russia. 19% of the whole list of pending cases is
against Russia. Our European Court is for 1/5 a Court dealing with Russia. Russia is followed
closely by:
Romania: 15%
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Ukraine: 12%
Turkey: 12%
The Prof mentions four countries and together they have about 60% of all the cases. So the
Court is most dealing with four countries. That is something to reflect about.
In our materials we will find a document of the steering committee of human rights of 2015. It
targets conclusions over a report on the long return future on the system of the European
Convention. (We won’t talk about that either). This year there has been another intergovernmental conference on the future of the European Convention. Every time that the
country that is the chair of the Committee of ministers for 6 months, considers that it is
important to reflect again among the states on the future of the European convention, it
organises a conference. A two-day conference that will end with a declaration adopted by
consensus by all the 47 member states. This year we have the Copenhagen Declaration adopted
under the Danish chairmanship. The text will be put on Toledo. You don’t have to study that in
detail. We will talk about the background of the conference and the declaration and indicate a
few points in the declaration. The Danish government is a government that is in general in
favour of human rights but it has a big problem with the case law of the Danish courts applying
the European Convention in matters of assignments. And it is a government that wanted to
restrict the possibilities for the European Court to get involved in these matters. That was the
clear intention as it had been described already in earlier positions by the government. We are
now the chair of the Committee of ministers. We are going to reduce a document which says
what the European Court can do and what it can’t do in matters of foreign … (?). All these
documents, thanks to the Danish government, were made public and immediately there was a
whole mobilisation by NGO’s and governments that had a different view than the Danish
government. To make a long story short, the final document (= Copenhagen Declaration) is
quite different from the original draft proposal by the government, especially on the crucial
points. It is now a much more Court friendly document. It means that there is no majority
among the member states of the Council of Europe to frontally attack the European Court. But
there are still problems. Those governments who would like see the powers of the European
Court reduced are still there, and they are still trying to achieve that in other ways.
Some points that need our attention in the Copenhagen Declaration:
First point: There was a clear attempt by the Danish government what the prof calls ‘abuse the
notions of subsidiary and marge of appreciation’ = the court should not exercise a deep review
of domestic decisions. What you find about subsidiary and the marge of appreciation now in
the Copenhagen Declaration (in paragraph 28) is a very good reflection of what the Court case
law says about subsidiarity and marge of appreciation. It is correct. It was not correct in the
original draft.
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Second point: There was also an attempt to organise regular meetings of states where they
would discuss the case law of the European Court with the Court. You can imagine what that
would mean. “Hey Court what did you decide there? Can you explain that? No we are not
happy. Next time you decide it differently.” It was a sort of monitoring of the European Court
itself. This has been significantly reduced. There is still some discussion but not in a dangerous
form. Look at paragraphs 33 and 41 of the Declaration. They meet and they can discuss but it
is clearly said “without attempting to intervene with the independence of the Court”.
Third point: The Copenhagen Declaration says that States should perhaps coordinate their
actions when an important case is pending before the Court (especially before the Grand
Chamber) so as to organise third party interventions by other states. Example: Case pending
against Belgium. States that want to support the Belgian government or are against the Belgian
government, they can intervene as third parties in the case. We see that this declaration has
already effects in that way. There are a number of important cases were indeed the respondent
state is able to mobilise a number of other governments. That is usually also very interesting
for the European Court itself.
Fourth point: until now we discussed under European Conventions and human rights the
applications to the European Court (individual applications most and sometimes inter-state
applications). There is also another thing: The advisory jurisdiction of the European Court.
Protocol nr. 16 on the advisory jurisdiction of the Court has entered into force (BRAND NEW
THING!). It entered into force on the 1 august 2018 because the minimum number of states
ratified it (= 10 states). What is this protocol about? It is similar to the system of preliminary
rulings before the European Court of Justice but with some differences:
First, it is only domestic Supreme Courts that can address a request to the European Court of
human rights. Not the lower ones. Only open to the Supreme Court. And of course, relating to
a case that is pending before the Supreme Court. An opening in a domestic procedure to
Strasbourg. The Supreme Court will have to continue his examination ones it has received the
opinion of the European Court.
Second, there is no obligation to ask the European Court for an opinion. It is purely optional.
Third, the opinion of the European Court is not binding. It is a purely advisory opinion. Is it (not)
valuable? If the Supreme Court is not going to follow the opinion of the European Court and it
has no good reason for doing so, the losing party will file an application later on with the
European Court and the European Court will follow its advisory opinion.
Fourth, the advisory opinion will have to be given by the Grand Chamber of the European Court.
It’s a terrible mistake by the drafters of the protocol nr. 16 because Grand Chamber cases are
so cumbersome within the European Court that it will be difficult to get the European Court
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organise to deal properly with these requests. Fortunately there is here also a filtering panel of
5 judges that will decide whether or not to accept a request for an advisory opinion. You can
imagine when a Supreme Court of a country decides that the case merits an advisory opinion
by the European Court they do not expect the filtering panels at all. They will not even look at
it. It will be diplomatic work to be done if we are receiving a lot of requests at the same time.
The protocol has entered into force on the first of august 2018 and there has already been a
first request. The French Court of Cassation is the first. It has sent a request for an advisory
opinion on issues related to surrogacy mothership (= la gestation pour autrui). The European
Court has already done some judgements on this topic, but the French Court of Cassation found
that there were some issues that they could not decide on the basis of the existent case law
and request the European Court to express its opinion.
We will NOT discuss:



The opinion at the request of the Committee of ministers. That is so exceptional that it
is useless to mention it.
The requests for information by the Secretary General Council of Europe
The whole list of other Council of Europe treaties related to human rights.
We are limiting ourselves to the European Convention.
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Les 7 (25/10)
Eerste uur
So up until now we have been discussing first the nature of HR, the very concepts of HR, then
we tried to explain you how these HR are protected on the international level, the standards
and the mechanism and how about protected on a regional level and I believe that’s where
Paul Lemmens finished last class.
Obligations imposed on states by international human
The question today is: what then are exactly the obligations in those on stage by international
HR treaties which particularly focus obviously on the European Convention on HR? And so what
we have to do in this class? I think by now you all have the handouts.
First we have to say something about the territorial scope of HR treaties. So where are HR all
states supposed to protect HR? Then, we have to say something about what exactly is the
nature of those rights they have to protect? So in short, there would be positive obligations
and negative obligations and we’ll go deeper into that.
There is something to say about the national margin of appreciation which is a typical concept
of the European Convention of HR. Now if we bring all those things together, you can read in a
way a short summary of those domestic obligations in these general colors of the HR
Committee. And I know this is UN-talk but at the same time it gives a perfect summary of the
obligations on states. The Committee reminds States that the obligations in HR treaties are erga
omnes obligations: which is kind a novelty of international HR law. It’s obligations, not only with
respect to other States parties in treaties but these are obligations that extend to citizens as
well (not being party of the Treaties). Once again, the Committee reminds States the fact that
HR treaties are binding on States. This means every branch of government, every part and fossil
of the State. So central authorities, local authorities, legislators and government as the
tradition. It reminds States of the fact that HR obligations are negative obligations (remember
the discussion on abstain) and as well positive obligations. You remember the Belgian metaphor
of the Belgian students. Although there is no such a thing as a direct horizontal effect, we know
that there are several ways of giving direct horizontal effect to HR obligations. And then very
important, HR obligations extend to everyone on the territory of the State. Think of the example
during the previous class but there is no condition on the sight of the citizen so whether you
are regularly on the territory or whether you are not, that doesn’t matter. It is particularly
shameful that about some months ago there was in Brussels the accident between a bus and
someone just walking by or cycling or whatever doesn’t matter, so we have a road accident and
there was a victim. Now, this victim happens to be someone who is on document (?). The
argument, apparently of the lawyer of the authority, of the bus company in the Court was to
say: “Yes but listen, hey, this person respected the law, he wouldn’t have been in Belgium
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because he couldn’t have been in Belgium because he was illegally in Belgium and then all of
this wouldn’t have happened. Can you see this kind of argument? Now, when that point was
made, that was quite shocking and if I recall well, the company itself, the public transport
company itself and even I think the minister of the transport in the Brussels region falls in a way
the attorney revoke the argument. This was not an argument we could make, it was legally
wrong and it was obviously and barely completely wrong. So whenever someone is on the
territory of the State, this person can evoke the rights of the HR Convention.
This brings us already by the first question and that is securing HR within your jurisdiction. That
is basically what the first article of the European Convention of HR says. What is jurisdiction?
The main rule, basic principle is that jurisdiction is a territorial notion. So, in most cases it means
primarily territory. If something happens on the territory of the State, this State has to ask
another State that this State is by definition violating HR and it has to come up with an
argument, a defense, a reason why there was no violation of the State that was accused of.
Only states are responsible for acts and admissions committed on their territory. This means
that in principle acts committed outside the territory of the State are not a matter of state
liability in terms of HR. This is what has been said in the Bankovich case: it is case going back to
the war in Joegoslavia. There was an airstrike on the rebel and victims of that airstrike say:
listen, we are in a way victims of violations of art 2 of the European Convention and those
strikes are committed by the Nato. Many of the Nato state parties are obviously highly
protecting parties in the European Convention of HR. So listen, Belgium, France, the
Netherlands, Luxembourg,… you’re all violating the right to life, not within your territory but
outside your territory by this Nato. Inadmissible case.
There is also a presumption that States are liable for what is happening on their territory. In a
way territory doesn’t mean in principle more than the territory and conversely it doesn’t mean
either that it can be less than the territory. However, there are presumptions to be made, but
in exceptional circumstances, states can show and prove that they can not been held
responsible for HR violations happening on their territory for the simply reason that they were
not in command on that part of the territory. Suppose and there are examples as the Iraschko
case. Suppose that you are a State p.e. Moldavia and part of your territory is occupied by Russia.
If there are violations happening there in the occupied zone, can you really say: what is
happening there, is it a responsibility of the State or a responsibility of the occupied State? You
see the point, you see how pragmatically it can be. That is very important. In exceptional
circumstances, a State can say: listen, a part of my territory is not under my control. That is not
to say: that in such circumstances, the State has no obligations at all. So you can’t as a State
say: there is one part of my country that is occupied by a form country so therefore I have no
obligations at all. The Court will say no, you are still under a positive obligation to undertake as
much as possible in terms of diplomatic military, traditional whatever sanction there are in
order to secure the HR of the population. So it’s not a general waviour at all, but it is in a way
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the logical consequences of the fact that you’re not fully in command on that part of the
territory.
A State next point, is normally not responsible either for the consequences of acts committed
on its territory but there are manifested on the territory of another State and here the example
is a case on Danish cartoons. In Denmark, cartoons are published that are highly practical of
Islam, but they are lawfully published on the Danish law but people in Morocco get upset about
it and decide to bring the case to the Strasbourg Court and arguing: Denmark should have
prohibited to publish this cartoons. The Court finds that this falls out the scope of Convention
because the consequences are outside the territory of the State. This is the case Ben Al Mary
(?) vs Denmark. Now, as I already said, much of those rules on territoriality are rules that come
with exceptions and there are exceptions to the territorial design of the Convention.
First example: cases such as the Soering Case. A German student was accused of or had
committed a murder in the United States, fled to the UK and then the Americans asked the UK
to extradite in order to given trial and sanction. The point is: the UK didn’t want to do that and
the case came before the Strasbourg Court. Argument was that if he was going to the US, there
was a serious risk that he would be a victim of violation of the European Convention of HR
because of the possibility of that penalty. So basicaly the point is if the UK sends the person to
the US, there is a serious risk of that person faces a capital punition. Court said: evacuation of
the Convention but there was seriously say that the UK would be violating directly the rights to
sue. It was only by allowing sending to the US that his rights would have been violated. Soering
sted a standard, in case a standard that is a typical standard in art. 2 and 3 case (extradition,
expulsion,…). This fact is seriously questioned by our politicians today and that’s why you often
hear that they can’t develop a proper policy in a silent integration because we can’t send people
back if this is not necessary because there is always the Strasbourg Court that says that this is
impossible. I understand the reaction, I’m not sure whether it is a correct one because we
should not forget that the Strasbourg Court did not completely rule out the expulsion or the
extradition or whatever. What it says, is that it has to be guaranteed so in the Soering case, this
is eventually what happened. The point is not that the Strasbourg Court said to UK: you can’t
send Soering to the US if and to the extend that you have guaranties that the violation won’t
happen. In other words: as soon as the US accept that in this case they can’t apply capital
punition there is no problem and this is equally in those cases that are topically today and which
we are discussing in the media all the time. In another cases, Morocco is an example where the
Court decided that people couldn’t be send back to Morocco and then there are later cases
where they accepted what the differences were they made change their mind but no they did
not, but the differences between the cases is that they were legal guaranties. So that is an
exception.
Another more controversial and not really christal clear example of exceptions are the
extraterritorial obligations of state parties in socioeconomic and culture rights where you have
massive principles on the extraterritorial obligations.
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But this is let’s say a first step in trying to convince states that in certain area’s they may have
obligations especially in a globalised world that extend beyond their territory. But of course you
can see what the problem is. The problem basicaly is of course that we stay with the idea of
state sovereignity. So how can you reconcile on the one hand state sovereignity, the very basis
of are international relations and on the other hand the protection of human rights. So this is
a field in progress.
So what do you need to remember? First point the basic idea is territorial jurisdiction.
Jurisdiction is basicaly a territorial concept. However, as I told you, there are those exceptions.
And the Court in its caselaw is more and more going to indicate and to explain that there can
be exceptions to the basic principle, being the extraterritorial application of the Convention.
Now there are let’s say two big hypotheses.
1. And the first big hypothese is cases where there is state control and state authority. You can
devide them in different cases. I believe it goes without saying, and you can easily understand
that state control extends to the behaviour of diplomatic and consulant agents. Suppose that
you have in Brussel an embassy let’ say of a party of the Convention. There is a journalist
walking into the embassy and he never gets out. Disapeared, killed? I don’t know. In that case
would we think that Belgium is to be questioned on what has happened or would we rather
say: “listen this was a diplomatic office of a country that is part of the Convention, so it’s their
responsibility”. Obviously in such cases, the problem is not a Belgian problem, the problem is
the problem of the country represented. Can you see the point? And this says the Court extends
equally being present on airplanes, on boats,.. and so on and so forth. This is what happend in
the (?) case. And this is somehow what happened as well as I think you all previously have seen
in the famous (?) case. Where the Italian boats were controling the sea, the Italian coast. And
then in the open seas, they saved, the secured people drowning. And they exported the people
back to Tunisia or Libya, that is not the discussion here. The point is that they, that Italy has
been violated the European Convention of Human Rights. Where as the Italians said “this was
not our territory”, but is was their service. So some people say this is an extension, this proactive judges doing politics. I’m not so convinced. I think that the Court in this case said, was
not so much of a novelty. The Court was simply applying the classic rules of jurisdiction to that
case. So I don’t think that is so much of a problem. So that’s a first sub hypotheses. The second
sub hypotheses is a hypotheses in which states are acting on another territory and they are
doing so with the consent of the other state because they have them invited to do so or in
which the other state agreed that this was happening. So basicaly one state is doing a service
to another one. Now here you have an example on Switzerland and Lichtenstein. So every now
and then there are cases coming up concerning Lichtenstein. Now I don’t know whether there
are people here from Lichtenstein? This would make my day. Should you meet someone from
Lichtenstein ever in your life go and run to a press shop and buy yourself an euro millions
because that’s the day where you have an extreme chance. So this only to tell you that
Lichtenstein is a very small country and there are not so many inhabitants in Lichtenstein, but
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they are an independent state. But you can imagine Lichtenstein being in between Switzerland
and Austria. Now they have to deal with a lot of administry stuff. That is typical for independent
states, but they have not the money, well I think they just don’t want to spend their money on
that kind of things. So for example their passport services, it appears that they somehow said
that this will be done by the Swiss immigration services or by the Swiss administration. So
whenever there is a problem and someone complaints about a decision on a resident permit
concerning Lichtenstein, but it appears that everything was administratively dealt with by the
Swiss authorities, then it is clear that you don’t have to bring your case against Lichtenstein,
but against Switzerland. Because it were Swiss agents dealing with the customs. But they did
not do so by force, they did not do that. They did so because there was this agreement with
Lichtenstein. So that was another sub hypotheses. And this brings me obviously in the third sub
hypotheses, where there is no such a thing as a mutual agreement between states, but where
the state control is the result of a use by force. So these are state agents, using force outside
their territory. So that’s the first hypotheses. Big hypotheses, with his sub hypotheses.
2. Now the second big hypotheses, is another one. And is a hypothese in which the focus is on
the effective control by a state outside its territory on an area as a consequence of military
action. So there is military action, there is a military intervention and as a result a state obtains
effective control on that part of the territory of another state. And this is of course the
hypotheses of all those cases concerning Iraq and Afghanistan. And the problem here is in a
way that many of the cases of course concerned the UK. And the problem so is that in a way
the European Convention of Human Rights is applied on the behaviour of servicemen in a
foreign territory. That is what is happening. And I think that it’s a kind of Layman’s logic here,
is to say if your serviceman or you prison guard will not be allowed to behave in a certain way
in England, why then would you accept a similar behaviour in prisons outside your territory,
but where you are in command. Why would we do that? Unless, we think that people living
outside Europe has less dignity or are not worth the protection or the same level of protection.
If that is the argument, which I think is highly despiteful, but if that is the argument, at least I
can understand the reason. Is that clear? Did I make clear my argument? I wouldn’t want you
to go around and say this guy.. So my point is, I completely do not agree, but I can understand
that some people, I can see that some people would argue that protecting human rights within
Europe is something else than protection human rights outside Europe. But if you don’t do that,
if you don’t accept that argument and you say hey servicemen, prison guards are under human
rights obligations, then why, suppose my name is John Smith, I’m a prison guard in Sheffield, I
have rules and I know which rules I have to respect and I know what I should not be doing. If
then one day in my career they say hey John Smith, aren’t you fed up with Sheffield? Why aren’t
you going to Iraq somewhere? At least it is a little bit more sunny. Why then working in a prison
under English patrol, why the all of a sudden, would I argue that the rules I was supposed to
respect in Sheffield, I would not respect them in Iraq? I can’t see the argument. And so couldn’t
the Court. Now I must say that British conservatives were furious. And so one of the arguments,
and I’m not saying, to be clear, that this kind of cases have a direct link with Brexit, but what I
say, is that in the British debate at least some of the conservative politicians used Brexit-kind
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of arguments against the European Convention of Human Rights. The one who launched the
idea of a referendum on Brexit, was also the one that talk about bringing human rights back
home, suggesting that the Brits could also organize a Brexit in the Strasbourg situation. Driven
by similar ambitions, the idea to take back control, the idea to get sovereignity back. We may
agree or not agree, that’s not the point. The point is that you need to know that this is an idea
that’s was very present at that time. And even today some of my colleagues, English colleagues,
last year I spoke with an attorney, an British attorney, that regularly intervene in important
cases before the Strasbourg Court and he said that he wouldn’t exclude at all that one day, next
to the Brexit, there would be a Brexit with respect to the European Convention on Human
Rights. I don’t know whether this is true. But you can see that the European Court of the Human
Rights being heavily criticized by the British tabloids every now and then. You will never ever I
think in Belgium have a front page of a national news paper with pictures of the judges in
Strasbourg and saying “they are a menace to you freedom” or “they menace your security”.
This is what happened in England, where you really have front pages, covers of tabloids with
the pictures of judges in the Strasbourg Court criticizing them severely. And I’m thinking we
have to criticize them, that is not my point, but at least whenever we criticize them, we should
do that and come up with good arguments.
So that is the first point. Human states are under human rights obligations and now we know
where these obligations apply. We see that are sometimes extensions. And I think that those
extensions, however justified, they may be under human rights law, and however self evident
they may be from a purely traditional logic. We need to know, we need to realize that from a
political perspective, they are highly criticized. And I must even add to that, it’s not only
politicians that are heavily critical. There is a part of scholarship and a part of the judges, they
are equally critical to those extensions. In this respect I would recommend you to read the
words written by Mark Bossuyt, who is a former president of the Constitutional Court in
Belgium, who has been president of one of the UN bodies, so someone with a serious and
impressive record when it comes to fundamental rights and human rights protection. And he
is extremely critical about this extension indeed of the Strasbourg Convention to extraterritorial
parts of the world. When some years ago we were invited to present with some colleagues a
book on precisely the criticism on the Court, we have a meeting with, a discussion with some
judges and some of them were extremely critical about the work of Dylan .. (?), by saying that
we should realize what we are doing, we are in a way exporting European standards to the rest
of the world. And some of them clearly said that we should stop doing that, where as others
obviously were defending it. So I think it is important for you to know that this is a highly
contested debate. It all started with Soering. For good reasons nowadays perhaps some will say
that it went to far.
That is the answer to the question “where are those human rights applicable”. The point now
is “how are this rights protected”. We know where, the question now is how are they protected.
What does this imply? And here depends a little bit on your preferences, if you are an UN
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human rights order or if you feel attractive to the UN, the UN’s way of approaching human
rights, you will say that basicaly human rights protection has three dimensions. That it means
on one hand respecting human rights. You as state you are going to comply yourself with the
standards. That’s one point, you respect them. Secondly you protect them. Protecting them,
being in a way, making sure that third parties can’t violate human rights. So you as a state, you
are not going to violate individual human rights, one. Two, you are going to make sure that
others are not going to violate human rights, second dimension. The third dimension is that
you are also on the obligation to fulfill human rights, so that is, you have this positive obligation
to create a procedural framework that allows people to effectively enjoy the human rights. So
that’s a three layered approach. If we are now going to the European Convention on Human
Rights, and the way the Strasbourg Court deals with it, there you will see that basicaly the same
ideas are applied, but they are worded in a different way. The Strasbourg Court keeps it simple.
Instead of working with three concepts, it works with two concepts. It says that there are
positive obligations and there are negative obligations. And that is basicaly the way we will
proceed. And this is the angle that we will adopt to look at the provisions in the Strasbourg
Court. We will have a look on it with a double perspective. The perspective of negative
obligations and the perspective of positive obligations. Is that clear? Any questions on that?
Okay, let’s then have the 10-minutes break now.
Tweede uur
The first hour we talked about the place where the state obligations have to be found. And
then I told you had to see what exactly, what nature of the state obligations is. And before the
break I just said ‘negative and positive obligations’. So now let’s have a look at those obligations.
You will know that the negative obligations is in the first place, remember the first class,
essentially say ‘stay away, do not interfere’. However, you won’t be surprised that obviously
the point is not so black and white. The point is, in those cases the states are going to intervene,
that is what life in society is all about. So the point is not so much that states should not
intervene. The point is that they can intervene but only on certain conditions and that is what
is so particular of the convention of HR, that it acknowledges the need and the reality of state
intervention and that does not allow unrestricted state intervention. That is the point. And so
you must learn to make that distinction that is to say ‘an interference with a HR does not per
se automatically imply a violation of that HR’. People see an interference and shout that that is
a violation. No, hold your horses. You can see that there is an intervention, you can see that
there is an interference but please, check whether this interference is under the convention.
For most interferences, and this is particularly so in the case of the articles 8-9-10-11, you will
see that there is a clear legal framework that conditions state interventions. They will be
possible under 3 conditions and they have to be complied with all together. So there must be:
1) a legal basis;
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2) a legitimate aim and;
3) a proportional link between the aim and the interference.
Even in cases where there is no clear framework set out to allow interventions, but where
interventions are part of the nature of things, for example in the protection of property, you
will see that the court develops a framework to asset the interference and using those triple
test, those three conditions. So that is very important. Let’s have a look at all of those
conditions.
1. The first is a condition of legality
There must be a legal basis. Why is that? Please do compare the logic of the system to the
criminal law system. You all no the Latin saying: nullum crimen sine lege. The idea that you can’t
be punished without there being a legal basis, for at least you should have known what your
behavior will do. Here we have a similar idea. States can restrict fundamental rights but at least
they should do so in a way that it is clear to citizen. If not, there is a problem. That is basically
the idea. Saying that there must be a law in an international context does not mean that there
must be a formal rule adopted by Parliament. So ‘law’ in the convention is not referring to
formal law as in Belgium constitution for example. So a law is in a way, a general rule. So it can
be established case law, for our friends of common law, it can be established practices… The
point is, it is not a discussion of the formal sources of law that professor Tilleman would love
so much, it is rather a discussion of ‘was there a rule that allowed the citizen to know what he
is up to?’ So this implies that there must be a rule. There’s a discussion on the existence of the
rule. And preferably this rule should exist and respect the domestic legal order. It would be very
hard for a state to go to the Strasbourg court and say ‘we have a legal basis to restrict
fundamental rights’ if at the same time it would appear that this legal basis was manifestly
unconstitutional. So although the Strasbourg Court is not a court where you can have discussion
similar to (onverstaanbaar) discussions, it is at the same time not completely non-involved in
discussion of the compliance with domestic law. That is important.
So there must be a rule, it must exist, it must be compliant with domestic legal order. But that’s
not sufficient. There must also be a certain quality attached to the rule. The rule must exist, the
rule must have a certain quality. And the quality means two things: a) it must be accessible and
b) it must be foreseeable. And it must offer a protection against arbitrary interferences. Now
what does this mean?
a) In the first place it means that a state must not have rules that (onverstaanbaar). This would
be a atema to the very idea that a citizen should know where he or she is up to. So unpublished
rules are problematic. That is accessibility. Citizens must be able to know the rule.
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b) The rule must also be foreseeable. That means that when applied, citizens can more or less
know what the consequences are. I know there is a rule and I can understand the rule and if I
have facts I can apply the rule to and I can see more or less what the outcome will be. That is
more or less the idea. So once again, you as a citizen, you should be able to determine the
consequences of your behaviour. That is basically the idea. Either way, the court is saying that
this legislation must be sufficiently precise. We’re all lawyers and know that this idea of having
very precise legislation is a rather naïve idea. And the court knows this so the point is not to ask
for a kind of precision, it must be a reasonable precision. Taking into account the field of law,
the technicality of it and therefor the court can also take into account that the citizens perhaps
need to go to a lawyer to understand exactly what they are up to. That is not excluded. It allows
in all cases citizens even without consulting lawyers that they know what they are up to. So
even technicalities of some of the fields of law implie that you have to check with a qualified
lawyer first. It may also be the case that they need to check the travaux preparatoir in order to
understand what the rule is all about. Having said this the point is that the legality of the
intervention is not so much a problem in the discussions before the court. In part of course,
this is due to the idea that the court, as Paul Lemmens already told you, is not a fought instance
so you are not going to go about interpretation of domestic legislation. That is not what the
court is there for. So that explains in a great deal why there is little discussion on the law. Usually
parties agree and say ‘listen there is A law, A rule, let’s call it rule X’ and the parties agree that
that’s the rule. The point is that it is violating human rights. So little discussion on the law.
However there is a case and it’s an important case for Belgian lawyers. It’s the famous RTBF
case against Belgium in March 2011. What is the point in RTBF against Belgium? In a nutshell.
The Belgian students know that for historical reasons we have a constitution that highly
protected freedom of expression. He have in the past a lot of people in exile coming to Belgium
because of the high protection of the freedom of expression. The constitution said ‘press is
free, no censorship’. Now the whole discussion in the 20th century is ‘what does the constitution
mean when it says the press? Is it saying ‘print press’ or is it saying ‘the media’? we had a lot of
discussion about that, it was an important case. A reason herefor was that some judges and
authors accepted prior intervention in freedom of the press understood as radio and television.
They said you could prevent a transmission or a program to be broadcasted. Whereas it was
not contested that you could never ever prevent a newspaper or a weekly to be published.
Should there be a problem, the idea of the Belgian constitution is you have to court AFTER the
publication.
Now here’s the point. There was this discussion about plastic surgery. You can already see what
it was all about ‘not all of the surgeons are as qualified as their colleagues. You have a doctor
where you have to admit that the pictures of before are much better than after. And that is a
risk, you enter because you have a small problem with you nose and after the intervention you
have become a Picasso painting. It’s a problem. This was discussed by local media and the
francophone television broadcast decided to make a documentary about it. It is a very correct
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one and they go and even gave the floor to the doctor where he could defend himself. Little by
little the guy starts to realise that maybe for his reputation it was not the best thing to do. So
he goes to the court and says that there is going to be a documentary on him and on plastic
surgery and how he thinks that it will hurt his reputation and that they have to stop it. This guy
wins his case. The supreme court even says it is okay. Then the RTBF attorney goes to
Strasbourg and says that this is a violation of article 10, freedom of expression. In this case the
whole discussion was whether it was foreseeable in the Belgian law. Of course the intervention,
the prohibition was not foreseeable at all because the rules existed, they were in the
constitution. There is a rule in the civil code and there is one about kort geding in the code on
procedural law. So we have our legal basis but the whole point was that the court, the judges
and the scholars did not agree on what they really meant. You would have case law in every
direction and authors saying one thing and others defending the opposite. The Strasbourg court
decides and says ‘Belgium you have a problem with your law’. There is no legal basis. That is to
say, there is a legal basis but it is completely unclear, unforeseeable. And so we do not have to
talk anymore about the other conditions. Simply the violation of article 10. So that is the first
condition, the legal basis.
2. The second condition, there has to be a legitimate aim.
Whenever States want to intervene HR they have to do so because they pursue a legitimate
aim. There must be a goal in there behaviour. In the second paragraphs of the article 8-9-1011 you will see a list of legitimate aims. Goals that states can pursue when they restrict their
fundamental rights. The list is exhaustive and the court had an interpretative tool. The
convention says that freedom is always the rule and the restriction is the exception and
therefor the restriction should be narrowly interpreted. And so here the legitimate aim should
be narrowly interpreted. Once again, if you have a look at the list of aims, they are so long and
open that it’s hard to see how a state would not be able to link an interference to one of the
aims set for in those paragraphs. We are talking about things like ‘public order’ or ‘public
morality’ or ‘the rights of others’. There is little discussion on the aim, it’s not a too complicated
hurdle to be taken.
However we have an interesting case that somehow runs contrary to everything I just said. That
is the case of the first of July 2014, the famous SAS case against France. The law on the clothing
that conceals in part or completely the face in public places. It’s what is commonly called the
burka-ban. French politicians tried to advance several arguments to defend the ban but
eventually what was set forward as being the most important goal, what was defended by the
French government in Strasbourg court and what was accepted by the court, was the argument
of ‘living together’ (le vivre ensemble). On personal ground I have a lot of sympathy for the idea
of vivre ensemble in a society but I must admit that I can not find ‘le vivre ensemble’ as a
legitimate aim in the convention. It is not a legitimate aim that is stated. So what did the court
say? It can be seen as a way to protect the rights of others. Now that is true. But the court
almost admits (of course not in these blunt terms) that they know that they are going a little
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bit for in reading in to the legitimate aims that they have at their disposal but they say that’s
why they should be a little bit more strict when it comes to the proportionality test. So the
court admits itself that it has been extremely lenient in interpreting legitimate aims. Now once
again I wonder to what extend this is consolable with what I said before. When the court says
‘these are restrictions and they should be narrowly interpretated’. So it’s just to give you an
example of how the court itself sometimes is a little bit lenient and not always very coherent in
applying it’s own statements to the cases. But let’s be honest, it would be hardly imaginable
that a court would say to France in such a sensible matter ‘on technical grounds, we say there
is a problem with your legitimate aim, therefor we do not have to go into the heart of the
discussion’. This is something they knew that it would politically be a suicide mission. So that is
why I think that they absolutely want to go into the heart of the discussion. Which is the
proportionality. But in doing so, they had to explain why they excepted the idea of ‘le vivre
ensemble’.
Apart from that, very few cases where there is discussion on this legitimate aim. Here and there
we had some. There was once this case of this Romanian journalist and he got condemned
because of defamation to a prison sentence and then it appeared that prison sentences of that
kind implied also that he lost guardianship over his child. There, the court could say ‘we think
you have a problem with your legitimate aim and defamation are one thing but the best interest
of children are another’. But once again, I would not think that the legitimate aim is too much
of a problem.
3. A proportional link between the aim and the interference.
Therefor this brings me to the third condition, which is the necessity test. Restrictions,
limitations, interferences with HR can be done. They have to have a legal basis and a legitimate
aim but most importantly they have to be necessary in a democratic society. The point is that
the Strasbourg court says ‘necessary is kind of a complicated word, we would use it as a
spectrum.’ On the one hand there are things that are useful. The court says that necessity goes
beyond things that are just useful. If a state says it is useful to their policy to restrict, that is not
sufficient. On the other hand it must not be something that is absolutely necessary. So in
between that is okay, that would be nice, and something that would be ABSOLUTELY necessary.
You have a marge de manoeuvre. The court says that what is needed is whether there is a
pressing social need. Is there a pressing social need to intervene? That is basically the question
that has to be asked. Here we have a complicated discussion and I think that students coming
from a German legal background may now be much more aware. Because they know from their
constitutional tradition that proportionality is something that they take very seriously. In the
Strasbourg court it is much more open to discussion.
So the first thing is that a democratic society is important. Interferences that must be necessary
in a democratic society means that the goals that you pursue, in any event, have to be
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compatible with the democratic society. And then the question is ‘why you as a public authority
intervene, whether those reasons are relevant and whether they are sufficient?’ Now relevant
is simply the question ‘can the goal be obtained, pursued by the interference you propose?’ So
this is not so much a matter of discussion. Sufficiency is related to the element of this pression
social need. Is there really a need to intervene? And then the court goes on by doing a kind of
balancing exercise. Striking in a way a kind of fair balance between the interests of individuals
and those of society. Striking that fair balance in terms of proportionality. So if you are used to
a proportionality analysis, such as applied by the German constitution, you may be extremely
deceived when reading the Strasbourg proportionality analysis because it remains rather open.
Not necessarily substantive. So you always have a little bit the idea that to some extend it is
based on a reasoning on legal gut feeling. Is this proportionate or not? Some judges will say
yes, others won’t. That’s part of the legal discussion.
You know that under the influence of German legal thinking, there is a kind of approach to the
proportionality saying that it should imply that authorities should opt for the less restrictive
solution. So they should defend as much as possible and the burden places on the individual
should be the lightest possible. The Strasbourg court is struggling with that approach. You will
find cases where it is clear that the court is not following that reasoning. There are other cases
where you may have the idea that the court followed the idea that there was a less restrictive
alternative and that therefor the less restrictive had to be chosen. Personally I would go for the
second position, and I know that Paul Lemmens also had this preference for the non-German
approach. You will say ‘why? Don’t you like the German approach?’ Well the problem is not
that I would have any problems with German legal thinking, the problem is that to my
understanding HR are just creating a playing field for politicians. And so they constitute
somehow the boarders of political action. And within those boarders, on that playing field,
politicians make policy choices. And all of those policy choices, and some of which I like, others
I don’t, not all of them can be compatible with HR. Now if I say that there is only 1 possible
point, that politicians can only intervene using the less restrictive alternative, basically I am
saying there is only 1 way to solve a problem and I am wondering to what extend we then are
just not abolishing politics. Why do we have politics if we have ? That say ‘oh this was a clash
between societal and individual interests and in a such a clash you should opt for the alternative
that had the lowest impact on fundamental rights’. That’s only one possible answer. Then I
would not need to have politicians. Do you see my point? I am saying I have a preference for
the other alternative but I admit that the other alternative, leaving more leanway for the
balancing exercise implies that there is perhaps less control possible and that there is a kind of
black box where you have to say ‘why in the end did they find this or that solution proportionate
and not show whether it would always be rationally explained in detailed why an interference
was proportionate after all’. I think that is the price you have to pay if you leave room for policymaking.
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So the balancing exercise is in a way a exercise ultimately checked by the Strasbourg court but
obviously also national authorities can do this balancing exercise. There is no reason to think
that national domestic judges would not be able to do this or even law makers. Maybe this is
primarily what law-makers should do, parliament should do. Before they adopt a new
legislation, they should have the reflex to balance all the interests at stake. And then it is clear
that the Strasbourg court is just doing what it needs to do and that is to see whether the
domestic authorities have been properly balancing the interests at stake. So that is basically
the discussion that takes place at the Strasbourg court on a very daily basis. Most cases are just
cases where judges are wondering whether an interference in that particular case was
proportionate. And this is, according to me, also the reason why you would have so many cases
where the court is not on an anonymous basis deciding. How can we explain that a court, with
such brilliant lawyers, that has to deal with one convention, with facts, they deal with the same
facts, the same domestic law, the same convention and they know the case law of their own
court YET they do not agree on the outcome of cases. How is this possible? The only point is
because in most cases they have another understanding of proportionality. That is what I think
is very important.
So this proportionality thing, this striking a fair balance, comes back as well in those situations
where the convention does not set out the triple legal framework to justify intervention. But
where the court reads it into the articles there again. The proportionality test will be the main
argument to be discussed and where the court will clearly say, and those of you familiar with
EU law will be reminded of something essential in the European chart, what is not
proportionate are rules or states practices that go against the very essence, the core of HR. so
that is even in making a fair balance, that would not be acceptable. That is the story of the
negative obligations.
We have a second part, the story of positive obligations. Now, as I told you in the first class,
positive obligations are usually associated with economic and social rights. However, I told you
as well, that the Strasbourg court started to read those positive obligations in to the European
convention as well. Although the rights in the European convention are mainly civil and political
rights, therefore first-generation rights. Now if you go and have a look at those positive
obligations, the theory is perhaps still a little bit shaky, so once again it is not clear if the court
has a very clear understanding of its obligations. So here again it’s something that organically,
on a case by case basis, has been developed. If you’re interested in it, two or three years ago
Gent university, there was a PhD by Laurens ? On positive obligations under the European
convention and he systematically addressed the question.
The first point of these positive obligations, is that they are essentially related to the idea that
states have to fulfil HR. so there is an obligation to fulfil to assure that there is an effective
respect of HR. so the first thing states have to do is to adopt a proper effective legal regulatory
framework. This means substantive rules. You have to have rules that make it possible to have
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family times established, even for children. Think about legislation on transgender people. The
recognition of the fact that they changed their sex and then they may want to change their
name. it’s a substantive obligation. It may also implie, not only substantive obligations, but also
procedurals. Allowing people to have access to diverse and separation procedures. Having
legislation that allows to proceed to effective access to abortion issues. That’s an obligation to
fulfil.
Second point, there is also an obligation to protect. Remember the obligation to protect against
third parties interventions. Now here again, much of what is done, is to prevent violations. This
means that you may have to adopt measures of ? This means that in some cases, if you for
example want to protect people against say sexual abuse, you may need to adopt criminal law.
Sanctioning such behaviour. You may have to adopt rules to prevent threats. That is why
environmental permits could be considered. If we know that there is a very dangerous
industrial plant working somewhere, possibly with serious threats for the local population, then
the states are under the obligation to regulate that. Would you think that they would be
allowed to construct a new nuclear plant next to a student place? I want to sell energy to make
money. Where to I see a lot of people using their laptops? Student in Leuven. So the best place
for my nuclear plant is the Tiensestraat in Leuven. Wouldn’t you think the local authorities
would have a problem with that? That is in a way preventing. So this is what has to be done.
Bringing in this kind of substantive obligation comes together with a kind of, once again,
procedural obligation. Also in cases where third parties violate HR, you may need to create as
a state a legal framework allowing to investigate if things go wrong, and sanctions needed. So
once again whenever there is for example a case of murder or rape, you as a state are under
the obligation to investigate, to offer remedy to the victims. Similarly, if there is a natural
hazard, if there is an environmental problem, suppose there is an explosion of my industrial
plant and there are victims, when then I am liable, not the state. But the state will be under a
duty to organise remedies for victims and their relatives in order to bring cases to the court, in
order to understand what happens. So this is mainly what is under the articles 2 and 3. That is
the part on remedies.
Do you have questions?
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Les 8 (26/10)
Eerste uur
Okay good afternoon, any questions on yesterday’s class? Everything is still clear? Okay so, I
remind you: yesterday we have been discussing what exactly the obligations of states are, we
discussed territorial aspects, we discussed the nature of the obligations and that there are both
negative and positive obligation, and then I said we have to say something about margin of
appreciation. So yesterday I finished with the positive obligations, trying to explain what exactly
they are. Now the problem with positive obligations clearly is, that it is not always very clear
how you can determine whether in the first place they exist and secondly what exactly the
scope would be.
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Here the point is - and we will see that in the other part we will discuss today - that we are very
close to policy making, that is the problem, because basically there is a borderline in between
what states can do and what states have to do and there was last week for example, I think it
was last week or maybe it was two weeks ago, time flies. But you may have heard the Dutch
case on climate change. Have you heard of the Dutch climate change case? So, one of the
questions was whether the Dutch public authorities are under the obligation to do things. In
this case, to reduce C02-emissions in order to prevent or temper or whatever climate change.
The Dutch court bases that on the respect of the articles 2 and 8 on the European convention
on Human Rights - we will discuss them later in detail - the judges say that the Dutch authorities
have a positive obligation, and that is the whole terminology we discussed yesterday, and that
they have to do things to make sure that people can effectively enjoy their life, because climate
change may be a threat to human life as such: private life, family life, the environmental
protection as protected under article 8. The point is, it is one thing to say that public authorities
have to do something, but another thing is to say what they have to do. Because does this mean
that there has to be legislation forbidding CO2 emissions? Or reducing it only? And if it’s about
reducing? To what extend? Is it 25%, is it 15% is it 17%? So, this is a tricky discussion whereby
lawyers or rather I would say, judges are perhaps asked to do things that come very close to
policy making.
So that is a very complicated issue and that is why often when courts decide that they see the
positive obligation and that they try to say what this positive obligation concretely implies, you
always hear people say these were judges that were too activist, there were judges that were
behaving like politicians in disguise. So that is the tricky part of positive obligations, but this is
common to the very concept. In the Inter-American court on Human Rights, the concept has
been coined as states should pay due diligence, so there is a kind of due diligence obligation:
that was is the Velasquez Rodrigues case, and so this due diligence obligation is what we would
in a European context call the, once again, striking fair balance. Striking a fair balance between
what? Well, balance between the state interests, collective interest, in the case of the Dutch
climate case: the general interest in having a more or less livable climate, that’s a collective
goal vis-à-vis individuals’ interest. So, striking that balance, and of course when a case comes
up to the Strasbourg court, it can be that finding a fair balance is a matter of general rules,
whereby the question is whether the legislator has found, yes or no, this balance? That it can
be equally be the case where it has to be found, to see whether in an individual case the
application of the general rule was done striking a fair balance. So, in those cases: the function
of the European court is usually a function of reviewing the balancing exercise.
Now in this reviewing exercise, in this balancing exercise, which factors should be taken into
consideration? Now here it all depends a little bit on the parties or the side you’re talking to.
- If you take the perspective of the individuals the question will be of course: what are the strong
arguments in favor of the individual? Well the strong arguments in favor of the individual would
be the importance of the interest at stake, especially for the private life, the family life of the
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individual on one hand. Second whether we are really talking about fundamental values, about
the core of the rights complained, or invoked. Could also say: are those vulnerable people? This
is a criterium. And this reminds us of the first class, where it has been said: yes, human rights
do protect minorities or have a function as counter-measure devices. Obviously whenever we
are talking about vulnerable people this is an important factor.
- From the side of the state on the other hand, what has to be taken into account: these positive
obligations that we may think are imposed or should be imposed on the state. Here the point
can be: Are we talking about general obligations? Or are these rather specific or precise
obligations? That is an important thing. Say you have to adopt legislation. That is one thing as
in my climate example. Could also be very precise: you have to adopt legislation going in this
direction imposing this and this and this. So, the kind of obligation could be general of precise.
The other factor on the side of the states is obviously and here again remind the thing I said in
the first class, the other factor is obviously the cost, the burden. We can want to impose many
things on states, but they come with a price and although states should not too easily say: non
possumus, we cannot... We should not forget that it is whether we like it or not, it is often a
reality. And that’s why the Strasbourg court clearly says that imposing positive obligations on
states may not have as a consequence that disproportionate burdens are put on the
authorities. That is a little bit what is at stake in this area of positive obligations.
Margin of appreciation
That brings me to that last chapter, if you want, and that is the chapter on margin of
appreciation. Now the margin of appreciation is in a way a very fascinating topic, and it lies
really at heart of the system, now the French and German students will be familiar with the
concept margin of appreciation because it is a known concept in German constitutional law and
it is obviously a known concept in French administrative law.
If you go and read a little bit of the history of the Convention, and the case law, you’ll see that
margin of appreciation comes up in very early cases already, in very diverse cases already. But
rather as a kind of term, they hint at it without really explaining it. Now the court develops the
idea of margin of appreciation in the Handicide case, and the Handicide case is a 1976 case and
English students may know it at as the legal red schoolbook case. Now it’s a little of an awkward
booklet and to understand it you have to go back obviously to the late 60s and early 70s,
completely different era, and I would say that the whole climate, European students, European
youngsters were in a way obsessed with sexual liberation on the one hand and also political
liberation and revolutionary things on the other hand. And the little red schoolbook is a
combination of Maoism and sexual liberation. So, it’s okay, it’s that kind of book. And this book
is sold in the whole of Europe, but in England it is forbidden. And basically, the idea is that it
corrupts youth. And Richard Handicide the editor of this book, the publisher goes to court,
where he loses his case. So, he goes to the Strasbourg court and says: this is a violation of
freedom of expression. And so, the Handicide case - we will discuss it when we are discussing
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freedom of expression but already for margin of appreciation here today it is an important case.
Because basically the guy says: listen there is freedom of expression, and this book is sold in
the rest of Europe, and then you see the court struggle, struggling with its basic mission in a
way. Because I told you that the European court in Strasbourg, is not a court created to impose
one universal, harmonized, united Ius Commune in Europe, that’s not its function. So it leaves
room to local diversity, but on the other hand it also knows that freedom of expression is a
fundamental issue, and the court also realizes that if of course you would say all the time that
there is local diversity and there should be room for different positions, in the end these
positions would question the very existence of the European court if you say all the time: oh
local authorities are better placed than we are. So, these are the two terms of the discussion.
So basically, the court says: we have not this mission to impose one concept on the whole of
Europe, our mission is a subsidiary one, we have to verify, we have to check, we have to assess
whether the national domestic legal order, so the law but then also as it is applied by the court.
Whether this respects the minimum standards of the convention and the court asked to then
say that sometimes in some areas local authorities may be far better placed than the court to
decide what is appropriate and obviously it thinks, or has in mind this situation where public
morals, come into play. I say well maybe in England you have a different conception of public
morality. Why should we impose our Strasbourg view on the UK? Why would we do that? So,
we can leave space for local variety. BUT says the court, don’t be mistaken, this is not a carte
blanche, this is not a blank check. You can’t just do whatever you like, we are always there to
assess, you’re always under our scrutiny, so therefore the court says margin of appreciation in
a way goes hand in hand with European control. So, we leave you space but at the same time
from a distance we are going to monitor if you are not abusing the leeway.
So, it is a way for the court to both foster diversity subsidiarity and to avoid discussions on
judicial activism. Thanks to margin of appreciation the court can solve within itself, can find a
compromise between more activist judges and more one the restraint side-acting judges. That
is an important way, and that is why you see in a later stage, the margin of appreciation
obviously has also been used within the framework precisely of those positive obligations. You
as a court say states have a positive obligation and then you add to this, but the way your
authorities are going to implement those and realize those obligations, there I leave you a
choice, there is a margin of appreciation. I am not going to tell you what exactly these
authorities have to do. So, the point is that the court wants to avoid to not to respect the
separation of powers and the court is aware that it should not replace the national authorities’
findings by its own findings. So that’s where for example, whenever the court analyses a case,
the initial findings, the initial position of states, whether they assess whether it was necessary
or not to intervene, this is controlled from a distance. So local authorities may be better place
as well to choose what kind of matters they want to use in order to pursue their policies, these
kinds of choices, so the more it comes to controlling policy choices, the more the court will be
eager to refer to the margin of appreciation.
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Sometimes it is also used, the margin of appreciation in a way to deal with interpretation of the
convention, and that is highly contested. And there for example Paul Lemmens would really
object and say the margin of appreciation is not made in order to solve legal debates on the
interpretation of the convention itself, it’s not about legal disputes at that level, it’s not about
scholarly discussions at that level, it’s about assessing the facts, it’s about feeling whether it’s
necessary or not to interfere, it’s about policy making choices, it’s not about technical legal
issues.
Now the questions of course here are: what is the breath of this margin of appreciation: is it a
wide margin of appreciation or is it a narrow margin? And I have to say at this point; there is no
systematic approach to the margin of appreciation. I once asked in a seminar a judge in the
Strasbourg court, it was not Paul Lemmens, I once asked her: Do you guys have a theory about
the margin of appreciation which whenever you read a new file you say: oh I apply my theory
margin of appreciation and so on, or is it rather are you behaving like my students?
She said what are you your students doing? Well my students Friday evening they are bored,
they want to go home, they want to get rid of all that, I can do whatever I want, they just are
extremely bored and want to go home, and you are sitting there in Strasbourg and you just
want to go home, because you have been discussing these terrible cases for some time and
you can’t find a solution. And there is one guy in the room who says: now I’m done with it and
I want to go home, and someone says how are you going to do that, to which he replies: margin
of appreciation! Send it back to the local authorities! The judge said it was the second option
obviously. They try to develop a theory and apply a theory, but they don’t really have one. So,
in this I must admit it is a little bit a case-by-case analysis.
Nevertheless, we can see some factors coming up. So, whenever a right or an issue is
particularly important to a person’s identity, states will be granted a narrow margin of
appreciation. Now this is something that we can deduce. However, I’m not so sure whether this
is always, this always holds true. For example: the yesterday’s case, you may have seen it, it’s
the case (I’ll put that on Toledo) I.S against Austria. It’s about freedom of expression. Now
freedom of expression is something that I think in most legal order we would say that
expressing your ideas is something that is very personal, very important. And usually the court
leaves a rather narrow margin of appreciation to states precisely because we know what states
would be doing. If you’re Putin, if you’re Erdogan and so on and so forth, you want to silence
people, opposition and so on. The European court has quite a good track record in recognizing
and protecting freedom of expression. And the arguments of the states that ‘we have local
diversity and local approaches’ would not work in debates where you are expressing
disapproval of politicians. The court would never ever accept that the Russian government
would say: ‘in terms of criticizing politicians and political leaders we have different view, there
is local diversity and we don’t want to apply the same standards as the Dutch (for example).
The court would not agree. Now here the court was about a woman who had been very critical
of Islam in a seminar, and basically this woman said (and I don’t want to offend anyone): You
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know the prophet married a girl and she was Aisha and she was 6 or 9 years old… she then said:
“How would we call that today? I think we would call that today pedophilia.” Now for this quote
she is brought to court. This is incitement to religious hatred, blasphemy and so on. She gets
sentenced in Austria. It’s not a very high fine, but she has to pay one. Now she then goes to the
Strasbourg court and says: this is freedom of expression. This is a criticism on religion, there is
no need that I am sanctioned on account of what I was saying. Now what the court does is
saying essentially: oh, but there is a large margin of appreciation in these kinds of sayings. What
the court is NOT saying is this: persons making statements like this should be sanctioned. The
court says: Austria could sanction, it fell within its very wide margin of appreciation for these
kinds of cases. I have serious doubts on that… I think the margin of appreciation the court is
referring to is indeed very wide when it comes to states religion rules. But saying that
something belonging to the public or political debate has a very wide margin of appreciation…
that these states enjoy that margin… I have doubts…. But it is just to tell you that this theory of
margin of appreciation is not the clearest one and can be used in various ways. And the point
is that although we try to see general principles, I will not say that for each statement I make
here, you cannot find counter examples...
So, as I told you, normally whenever cases are related to someone’s identity and existence the
margin of appreciation will be rather limited / narrow. However, the margin will be fairly wide
whenever we are talking about sensitive issues such as morality, cultural diversity, ethical and
medical issues, there the margin will be wide. Whenever cases imply certain choices of society,
there the margin will be wide, and most probably in cases where you have to admit that a state
could go either way and it would not be very shocking at first sight if the state would opt for a
solution we would not particularly like, but it is not at first sight a serious human rights violation,
it’s a policy choice, and then the court tends to say: let’s have a wide margin of appreciation.
For a long time, the court used, and it still does it but its once again not always very clear to see
what they’re doing, is using the European consensus as an important criterion. And so
according to the court, the more there was a consensus on an issue the less freedom and
leeway states would have to adopt a position different from the consensus. Now if you think
about it, this is a weird argument: if we really say that the courts position is just a position or
has just as a function to monitor and scrutinize whether the minimum human rights standards
are respected, then the argument that all other countries do something different is as far as I
can see it, of little or no importance. What would it matter? Take criminal procedure: in Belgium
we have the juge d’instruction (onderzoeksrechter), in most countries they are trying or have
gotten rid of it. It’s something that derives from the Napoleonic tradition but has been gradually
banned in many states. But if the system respects human rights, what would be the importance
to say: yes, but there is a European consensus of not having one… What would it matter?
However, the court uses this consensus, a little bit in both ways: if there is no consensus, more
often than not the court will say: wide margin of appreciation. If there is a consensus they will
say: restricted margin of appreciation. However, we were extremely surprised some years ago
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in the Irish abortion cases, where the very strict Irish abortion legislation, which basically boiled
down to almost a prohibition, a ban. This was assessed against the European convention, and
the court came up and said: listen we can see that almost in the whole of Europe we have
legislation that allows abortion. And then it came up: hold on some states are very liberal, some
states are rather or very restrictive. But there is a consensus that in some cases abortion can
be acquired. So, you could say that there is a European consensus. This would mean that the
Irish authorities would not be given a margin of appreciation due to the consensus. But all of
the sudden the court says: nevertheless, it’s not because there is a consensus that states cannot
derive from that consensus. So, you can see that it is highly problematic. You can imagine that
the basic reaction would be: from politicians and the court itself, that they want to get rid of
that margin of appreciation and there was some years ago one of our former Belgian judges
Jan de Meyer, wrote a very severe opinion by saying we have to get rid of this nonsense that is
this margin of appreciation.
However, what happened is protocol number 15 of the Convention that will be written into the
Preamble of the Convention whenever the protocol number 15 enters into force. Because
Politicians, that is the state’s parties, in criticizing the court since let’s say 2008/2010, where
the court was heavenly criticized as being to activist, that it was imposing its views on the rest
of Europe. One of the triggering cases was of course: Laotio vs Italy on crucifixes in public
schools, it was a huge debate. Eventually the grand chamber said that there could be crucifixes
in public school. But the ‘could be’ triggered an enormous debate in Italy. There were also cases
in the UK such as the servicemen acting abroad, but also think about the right to vote of
prisoners. It happened to be that in the UK there was a rule that there was a general ban on
voting rights as soon as you became a prisoner. And here the Court judged it was
disproportionate. Here it was David Cameron that said: “This literally makes me sick, it makes
me vomit.” Criticism from the UK: you are imposing your views on our century standing
traditions, criticism from the Italians, the Russians, even from Belgium: in the Taxquet case on
the layman’s jury in Assizes court proceedings. So, all of the sudden this court is feeling that it
is under pressure and what it does; the court basically announces we have a subsidiary role, we
are not here to impose, we are here to respect. And this is a coded message to the states: we
understood you, we are going to be a little bit more on the restrained side, and then this margin
of appreciation comes up as a miracle solution, because it is precisely, however unclear it may
be, the ideal tool that allows judges to say: subsidiarity rule or intervention. And so, the state
parties now have written this protocol number 15, causing the margin to be written down into
the preamble. The judge made creation it was until now will be part of the convention as soon
as it enters into force. The margin will be extremely linked to the idea of subsidiarity. So, I think
that it still very important. This also shows you, the fact that more and more you’ll see that the
court uses the margin of appreciation, I would say in a procedural way. I know that judge
Lemmens is very much in favor of that, meaning that whenever there is a complaint and
particularly whether the complaint is about clashes of human rights, the court is to assess
whether the domestic decision was respecting all interests at stake, whether there was a kind
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of procedural justice. This can be both directed to legislators and to judges. So, whenever the
Strasbourg court has to assess a legal provision, the court can have a look at how the provision
was created, look at the genesis of it. Was there a serious debate in parliament? Have the pro
and cons been considered? Has there been a fair balancing exercise? If so then our control will
be a little bit from a distance.
Similarly, when it comes to judicial decision-making, there it is important to see whether judges
have been balancing correctly, and this is typical in cases where freedom of expression, of the
press, and privacy of celebrities clash. Typically judge Lemmens would say, since this is such a
difficult exercise and whatever option you take, you will always be under protecting one side
or the other. Judge Lemmens believes it is important to see if the national judges have been
listening to all the parties, to their arguments, and whether a serious consideration took place.
And that would be enough for judge Lemmens, even if he would have preferred the other
outcome, he will not intervene because he says those domestic judges have been doing a
wonderful exercise, even if the outcome is an outcome I don’t like, but there was equal and fair
consideration of the arguments of both sides.
In Economic cases a clear example is the famous Hatten case: a case on Heathrow airport in the
UK, about night flights. The usual discussion: economy is booming, expanding airport activities
means more flights, more night flights in this case. This means that people won’t sleep
anymore, or not as well as before. So, you have obviously neighbors that are complaining; they
have rights of enjoyment of their properties and a number of other fundamental rights to the
authorities. So here you have it: What side should the authorities take? And they can say there
are property rights; we have to boost the economy and so on. Whose side are you on? I don’t
know? As a judge how do you deal with that? And here the grand chamber would say this is a
matter of margin of appreciation. It is sufficient that public authorities do consider all the
interests and arguments at stake. It would not be acceptable that politicians for examples
would say we don’t care about the neighbors, they always complain. That would not be a
proper decision-making progress, there the court would say, although there is a wide margin,
the court feels that there was no proper balancing argument, the other parties’ interests where
neglected. But if both parties have been heard, and a conclusion is reached the court would
say if this is an in good faith, state of the art, decision making progress then why should the
court intervene and dismiss the findings of the local/ domestics authorities? Is the court better
placed than the local authorities that have the facts at stake? Was that clear? Questions on
that? Okay we’ll have a 10 min break.
Tweede uur
This question is made of two sub questions: 1. We have first, we need something to say about
the status of that international law within the domestic legal order; 2. The second line is what
are the effects in the legal order of findings of human rights violations. So first line is about the
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norms, what is the status of the norms in a legal order. The second line is about what about the
findings of the violations in the legal order. Two things that we have to distinguish.
1. The status of international law within the domestic legal order: Now if we first turn to the
first question, the question of the status of the norms in the legal order, we can again make a
distinction. A) First concentrate on the implementation of the substance of the law; B) second
we must say something about the effective remedies.
A) So first question, what is the status of the norms within the legal order. The international law
does not say much, because it all depends on constitutional law of the various status; because
as you know, those of you familiar with international pubic law, know that there are basically
two possibilities. Either you have a monism legal order, either you have a dualistic legal order.
So in a monism legal order the idea is there are no such thing as various legal orders but the
national and the international legislation, all together are part of one legal order, that is
basically monism position. The dualism is say, there are basically two various legal orders: the
domestic one and the international one and the domestic and international one are not internal
related. If you want something to enter into your domestic legal order, in a dualism system,
you need to have a law, a transposition. If not you remain with two various legal orders, that is
why in the UK when it comes the European convention of human rights you have the human
rights act, you need an act to transport something from the international legal order into the
domestic legal order. The international legal system or European convention of human rights
is not say to state parties you have to adopt this, that is purely a matter of constitutional law,
but what international law does say, is of course is that there must be a an effect utile. If you
read the covenant on civil and political rights, it’s clearly said that states have to do that to give
effect to rights in the government. The European convention on human rights, says the same
thing, with other words, by saying that states have the legal obligation to secure. So in any
event there must be something done. If you really want to give a concrete effect to
international human rights obligations, either you have to transport in a dualistic system, either
in a monism system, you need to make sure that citizens can indeed directly apply the
international norms in their legal order. So a complex issue, of what is sometimes called direct
effect or what could be called the consequences of effect of self-executing treaties. The point is
different from the various legal orders in the present. Some years ago we worked with
colleagues on this issue from various European universities and we discovered that notions that
seemed to be so strange forward as direct effect or self-execution provision. In various legal
orders meant something not completely different but slightly different and that’s why, when
we realize that from many of you know, you know the notions, the concept, and still if you are
going to discuss them amongst each other you easily see that, you are not really talking about
the same things. The point is that whenever we are talking about this direct effect in sensu
lato, what we basically mean, is that citizens, that the rights in the treaty can be invoked in the
national legal law. The question may have various positions, the question is, invoked against
who, and in some states it will be said, it can be invoked only against public authorities, others
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will say it can be invoked directly before the judges, that is in various legal orders different. In
Belgium you know that most of the provisions of the convention can be directly invoked by
citizens in legal proceedings before any judge, but please do not think that this is the standard
situation in the whole of Europe. A lot of colleagues are surprised to hear that if we go to the
juge du peine , we could say this is a violation of article eight of the convention, in Belgium we
can do that, it is not necessary the case in many other states.
This question should be distinguished from the question whether there are subjective rights
standing directly from the convention. It is one thing to say that say you as a citizen, I can go to
the court, I can simply say I’m faced with this of that obligation, but I think it violates article 8
of the convention. This judge is able to assess, no problem with that. Another thing is, that I go
to a judge and say, it follows from article eight, that I have a right to something. That is
something not very clear to many lawyers. So often, I see the public debate, we have a right to
something and that right to something would then be derived from a very general human right,
that is not so clear, maybe there you have to precise legislation. We can see that a good
example, is the old but very fundamental Marckx case: the case against Belgium, many of you
may have heard of it before. A mother gave birth without being married, this child was called
the natural child and it will not have the same rights or at least rights that are automatically
similar to children whose mother was married. So Marckx automatically went to the Strasbourg
court, to complain of that situation and she won her case. So what basically was said, was that
the Belgian civil court on that precise issue violated article 8 of the European convention of
human rights. She could invoke, that’s why she went to Strasbourg. But the point was, the
discussion on compatibility between the domestic legal orders and the convention was debated
in Belgium automatically in Strasbourg. Now, whenever she wins her case, this is of course
important news and there are many other people in a similar situation and so what they do is ,
oh you see the Strasbourg court declared the existing norms of violations of the convention,
therefore I have the right to a recognition and many other rights, and here the Belgium court
need to say “whohhoho, hold your horses” it’s not because there is a violation of the
convention, that therefore it follows that you have sufficiently precise claims and rights that
you can claim before a court. The legislator should intervene to offer you this legal framework.
So this is for example, you can also see that there is typically in cases, the right to housing is
such a clear case, people say there is a right to housing. I can see that in some of the
constitution, article 3 of the constitution, I can see that in international human right treaties.
But the right say, there is a right to housing, does that imply a subjective right, where you can
go to a judge and say listen I have a right to a house, so give me one. Against who can you claim
that right, under which circumstances. Suppose you are looking for a kot, and you have some
problems. Would you be able to go to a judge and say here is a violation of the right to housing?
I think, you feel that something isn’t working, and that is precisely because you have to make a
distinction between human rights norms as such and the creation of subjective rights, you can
not automatically induce from the norm subjective rights. Last point there in this discussion.
The European convention in Belgium had, I would say quasi constitutional status. It’s way above
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the law and actually it’s a above the constitution, it’s the highest law. There can’t be any
discussion. But that is not necessarily the case in all European countries. There are states,
where the convention is under the constitution, and in between the constitution and the
normal statute. And there are even countries, where the European convention, has only the
status of ordinal legislation. Once again, this is a matter of the domestic legal order. It’s not so
much a problem of the international legal order. But you can imagine of course , I hope you see
that, that if your domestic legal order gives no automatic precedence, to the convention over
older legislation, then of course you seriously risk, have a lot conference of with your
international obligations. Because each time there is a law that violates the European
convention, you have a problem. So this is the place of the norms in our legal order.
B) The second point is that you not only need your norms, you also need your remedies. A
remedy should be given. If you have to and this is one of the conditions to bring a case to
Strasbourg, if a pre - condition is that you have to exhaust the domestic remedies. Then it
follows, that you need to have the domestic remedies. So this is in a way, the logical
consequence and that’s why in a domestic legal order, there should be an effective remedy.
You can also read that in article 13 of the convention, where it clearly says that states are
obliged to offer an effective remedy. Now this effective remedy means, it should be there, but
it’s only connected of course to the fact that you bring a claim under European convention. So
the effective remedy, is as far the European convention, is only a claim, about rights protected
in the convention. You need to have an effective remedy, to act against a violation of one of
the right protected by the convention, that is basically the idea. What should be done in this
remedy, what should this remedy offer you? That is very clear, it should offer you the possibility
to enforce the substance of the rights in the European convention. You think that your rights
are violated, then you should be have the possibility to complain about that. So complaining
about that, dealing with the substance of the convention of the protected rights and as far as
possible, maybe there should be given appropriate relieve. So effective means that not only
you can complain, effective means, obviously as well, that relieve should be given. An effective
remedy means that there was intentionally a way to complain about the violation and then you
have a normal chance, a reasonable chance to get relieve if you were right in your analyses,
that is the point of an effective remedy. It does not mean that they have to say all the time: yes
human right. An effective remedy is not say the same as saying that an applicant or someone
bringing a plaintiff, should always given what he or she wants. You often see people
complaining about their not be given an effective remedy, and if they have to explain why there
was not an effective remedy, than they say because the court dismissed my argument or my
claim. That is not an argument. It’s almost a prove of the fact that there was a remedy. The
effectiveness is something else in winning your case. That’s the norms and the remedies in the
legal order. That’s in a way a stage prior to a Strasbourg proceeding.
2. There’s a second side. The second side is there has been a Strasbourg proceeding and lucky
for you, the state lost. How then should the state deal with a finding of a violation by the
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Strasbourg court; And here the answer, once again is, in the convention, because it says, and
that’s article 46: that the High Contracting Parties undertake to abide by the final judgment of
the Court in any case to which they are parties. So the final judgement is binding on the parties,
binding on the state party. And once again state party means binding on all the authorities of
the state, including the highest courts. Now admittedly, there are cases, where let’s say the
highest courts are from the opinion that Strasbourg made a mistake and then it can happen
that, there is a kind of traditional dialogue between Strasbourg and the state, and you could
imagine that they are looking for a compromise. Now the fundamental thing you have to bear
in mind. Is that there is essentially the ground rule: they declare when there is a finding of a
violation, but they are not executing, the court would say, that a finding by the Strasbourg
court, does not alter the domestic legal order. In other words, suppose you are sent to prison
for forty years, suppose you go to Strasbourg, and Strasbourg says it was a violation of article 6
here, you still will be in prison, because the final national position is not automatically removed
from the national legal order, because there is a finding by the Strasbourg court, because a
judgment in the Strasbourg court, is not replaced automatically, the final domestic judgment.
So
you
have
to
bear
that
in
mind,
a
fundamental
thing.
So for states, whatever they find of confronted with violation, they have basically two types of
obligations. One kind of obligation, are obligations vis à vis the applicant, the individual
obligation, the other obligations, are possible obligations of a more general nature.
First the obligation vis-à-vis the applicant: whenever the Strasbourg court finds a violation, what
is in the first place the obligation vis à vis the applicant, the lucky person that won his or her
case in Strasbourg. The first sting, that there should be an end to the violation of the
convention. There is sometimes but not always possible. But we can imagine cases where the
violation is still lasting. So the court, the state should stop this breach, and then second point,
there should be a restitution as far as possible. So the applicant should be put in a situation as
if the violation didn’t take place, to the extent of course that this is possible. That is in short
what the state is supposed to do. But here again, we are not facing the problem of policy
somehow as separation of powers. The states are free to choose how they will obtain that
result. So redress is necessary but states are free to choose the means, they think of the most
appropriate way to obtain that redress. We see an evolution, because sometimes this margin
that is left to states, this choice is left to state, is narrow and in the end is basically you should
do one thing and then you can imagine of course that states are complaining. But think about
situations, where there is an awful detention. How else could we imagine stopping the breach
of the violation, then by releasing the person that is illegal detente. Suppose we are dealing
with cases where states taking a part of land of someone in an unlawful way, how else redress
could be received. You could say give money for the land. But you can imagine situations where
you can say that this was not so much about owing a land and given money for it but perhaps
this was a part of land that was in family for centuries and has such a closure value that given
you just the money covering for the part of land, will still not be sufficient. So you can see that
there can be discussion. Can you imagine that you are victim of a violation of the convention
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and then nothing can be done. That has been the situation of some prisoners. Now you may
say that they all say they are victim of the violation of the convention, but you can say that you
really are and you can say that you didn’t enjoy the right of a fair trial and as a consequence,
I’m a prisoner. This is a serious problem. And states were invited to adopt legislation in this
aspect and that is why, when it comes to Belgium, we have now the articles 442bis and
442octies of the code of criminal proceeding. And so this are provisions that allow a person,
direct go to the Strasbourg court, obtain what they want that is say I’m a victim of violation, no
fair trial, I’m in jail, you can go and ask for a new trial. So there can be a new trial, of course lady
and gentlemen, you can see that found of gain theory, you can find some interesting dynamics.
Suppose you are sentenced to 10 years of prison, and suppose that after 8 years, you win your
case in Strasbourg. Now think about, what are you going to do, are you going to say I want a
new trial, because maybe I can be declared innocence, if you really really really are innocence,
you can of course say, I want that new trial, the risk be however that once you are sentenced
to 10 years of prison but this time with al respect for fair trial, then you even lose the argument
that you are convicted without a fair trial, you see the point. So in some cases, there are lawyers
that advise their clients, that if they win in Strasbourg, keep that as a borrowed victory, then
you can show what a victim you were. But there is a risk, after a new trial they would be this
time, for good be sentenced and then it will be established as the true.
Now if I’m not mistaken, there was a case of someone who won his case in Strasbourg on
serious crimes, violation of article 6, he applied for a new procedure and then, what happened,
was that the new court said that the reasonable delay is possible, there was not any reason to
start new proceedings, this is something to bear in mind.
Last point for today is I that you can also imagine that a morality compensation should be given.
And this is what the convention called the just satisfaction, applicants can apply for a just
satisfaction, now don’t be mistaken, a just satisfaction is not similar when you have full
compensation. The amounts are fairly low, usually it’s split up in costs (for the lawyers to bring
the case for the Strasbourg) and the real compensation. But we are talking of money, some
1000 of euros. Sometimes, in cases of expropriation, it can go to some 1000000 of euros. But
usually it will be a very limited amount. So what often happens and what is confirmed by the
lawyers, is that they ask just satisfaction in Strasbourg and then they say, but our damage
exceeds by far the amount of the amount we receive by Strasbourg, so for the remaining, what
is left, they went to Belgium courts on the basis of liability of public authorities, and they claim
the difference and this according to that lawyer worked out perfectly well. So you say I suffer
too many euro’s of damages, I got 1000 of the Strasbourg court and then go to Belgian courts
and claim the rest.
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Les 9 (08/11)
Eerste uur
We have to do 2 things today. The first and main thing is that we have to start discussing
substantive rights and we will start with the right to life. But before doing that I think I have to
finish the chapter on the consequences and the obligations for state parties concerning the
European Convention and the findings of the court. I think that we stopped discussing the
issues when I told you that if the Strasbourg Court finds a violation of the Convention, this
brings about obligations for state parties. And I think I told you that basically we have two things
to consider. On the one hand there are the obligations vis-à-vis the individual applicant, and
that is that you have to stop the violation and you have to look for some forms of redress. This
redress can be, in criminal cases for example, offer the possibility of reopening legal
proceedings. It can also award some damages. I think we stopped last class by saying that if you
don’t have a look at the amounts of award, these amounts are in most cases fairly limited.
There are of course exceptions. If go and have a look at some judgments, these awards are
huge. Within the context of property rights it is quite clear that it is easy to evaluate the amount
of damages if you have been expropriated and this was in violation of the Convention, it is not
difficult to say what your exact damage was. But outside the context of property rights, saying
that you suffer harm because of an excessive length of proceed, I think we all agree that this is
a harm. But how would we in monetary terms be able to say that this harm can be
calculated/assessed/evaluated at this amount? That’s much more complicated. I would say that
outside 1st protocol, art. 1 of the 1st protocol, the amount of damages is rather limited.
What I now want to do is to say that there is a 2nd type of obligations. And these are obligations
that go beyond the mirror situation of the individual applicant. If the problem is that an
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applicant complains of a legal framework that is unsatisfactory, always take the example of the
Marckx Case: if there is a problem with your civil law, and the court finds that they violate art.
8, obviously there is an obligation for the state to adapt its legislation. Now this goes far beyond
the individual case. There is a real possibility that states, whenever they are found in violation
of the Convention, have to wonder what the problem is. Was it a mirror? For example: you may
have the best and fastest legal system in the world, but you can never exclude that in one single
incident there has been an excessive (?). Most probably in such cases there is no need for a
state party to change something more structural internal. However, if for example the court
finds that one of your rules in civil law, or even in constitutional or criminal law - take the Salduz
case where it is said that people that are arrested they are entitled to have the legal assistance
by a lawyer. If that is the finding of the court, obviously you as a state you have to think about
what you should do. So these are possible consequences. And then of course you can
immediately see how much there is again this risk of a clash with politicians. Because saying to
state parties that perhaps there is a problem with their domestic legal order, with their rules.
As for example for the Belgian students, we all know that Belgium is one of the few remaining
states in Europe where after parliamentary elections the parliamentarians themselves assess
whether the election procedure has been fair. In other countries, in France for example that’s
the Conseil Constitutionel who will deal with such questions. I think in Spain it’s the
Constitutional Court that would deal with these questions. In other states it will be a Supreme
Court. It will be judges that decide upon the lawfulness of the election. In Belgium, still following
the very ancient and strict separation of power theory, says this is the heart of the
parliamentary powers. So it’s up to the parliament itself to judge. It’s not for judges to do this.
It’s the parliament itself. Now this is something that still exists in Luxemburg, Italy, Romania
and Belgium. Now, in a case against Romania the Strasbourg Court said that there is a problem
here and found the Romanian rules in violation of the convention. Now if you read that case,
which is the Grosaru case, it becomes very difficult to understand why the Belgium
constitutional rule would be without any further problem. I’m not saying that we’re completely
sure that it’s a violation of the convention, but I think that if one day if there is a case before
the Strasbourg Court, it won’t be very easy for Belgium to defend its constitutional provision.
So we cannot exclude that one day there will be a case where the Strasbourg Court will deliver
a judgment which will have as a cost that Belgium needs to adapt its constitution on that precise
point. Now I can only say you that if that happens there will be a lot of fuzz in Belgium and
politicians will say ‘who do they think they are? Judges saying what we have to do.’ And there
will be critical articles and press. So here, this is when it comes to the further consequences, it
is a very difficult position for the court as well. Because on the one hand it has to indicate if
there is a violation, it can’t just pretend there isn’t. It has to say that there is a violation. On the
other hand it should be sufficient leeway to states to choose the way of redress. But sometimes
this leeway will be extremely narrow.
There are no 500 options to deal with the problem. Take again the Belgium case. Here you can
imagine that the Strasbourg Court can simply say there must be a traditional control
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mechanism without saying it should be the Council of State or it should be the constitution of
Court. There is a wide array of possibilities. Here we see already that for the future that
individual cases can have impact on the future developments of the legal system. This will be
more so whenever the problems detected by the court are inherently part of a wider problem
in the domestic legal order. And that is what has been underscored by already the Committee
of Minister in 2004 where it says ‘listen, we have such a huge influx of cases and many of the
cases concern a handful of countries.’ So you can imagine how much progress could be made
in terms of efficiency if they could handle them in an efficient, fast way. Especially if you have
so many cases complaining about the same thing. In Italy, excessive length of the procedure is
a big problem. What they do is, they go to the Strasbourg Court. There are so many cases about
the excessive length. If they could just solve that problem many cases will disappear. So every
country has their problems.
And that’s where the Committee of Ministers said ‘why aren’t you trying in full respect of the
separation of powers respecting the subsidiarity principle? Respecting therefore the right for
Member States to choose the way they want to organize their legal system. Why don’t you help
them?’ That’s why in 2004 the Committee of Ministers indicates this and already in June 2004
you have the Bronjovski case. Which basically was a case about compensation related to events
after the Second World War. We know that after the Second World War there have been
internal disputes, some parts have been moved to the Soviet Union. And there have been
internal displacements. It was said that compensation would be given. But the for reasons of
budget this was not done properly. So many people felt that they were not given their rights.
And so they went to the court, found that there was a kind of violation. And then the court
knew that there were so many others in a similar situation. And they already know what’s going
to happen. They will be dealing these cases for months. And so they say we see here a systemic
problem. So why don’t you try to solve this as public authority and we will in return freeze all
cases. And so the pilot-judgment procedure is a kind of which Bronjovski is the first application.
It’s a kind of procedure in which the court picks up a case, sees there is a problem, defines it,
gives a very strong message to the state and says ‘find a solution’. But at the same time
indicates we have a lot of other cases with the same issue. We won’t deal with them right now.
We give you the possibility to come up with a solution. After that time we’re going to see what
you did. If there is a good solution, we will strike out all of our cases. If we are not convinced of
your solution then we will take the cases out of the fridge and start dealing with them
individually.
There is a pilot-judgment against Belgium. It’s the W.D. case of 2016 on the persons of unsound
mind. So basically we are talking about people suffering from mental diseases that committed
serious facts, but can’t be held responsible due to mental problems. These people are entitled
to mental care. These are very complex cases. On the one hand these are people in need of
mental care, but at the same time they are dangerous because they are sex offender, they are
murderers. So you can’t just say why don’t you go to a hospital every now and then to get
cured. But do you think that if you are a politician, you are going to get votes campaigning for
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the rights of these persons? No, because you won’t be elected. So these persons have been
denied for decades. Many of them have been denied the care they were entitled to. It was
rather a way of neglecting. So cases came up to the Strasbourg Court and the court started to
condemn Belgium by saying this is the violation of sometimes art. 5, sometimes even art. 3.
There is a lawyer and he wins his case in Strasbourg. And so what happens is that he goes back
to prison and they all ask him ‘why don’t you pick up my case? I have a similar case.’ So this
lawyer or these few lawyers, start bringing these similar cases to the court. And that is exactly
what they have to do. You can’t blame them for doing that. But the Belgian authorities are in a
very complicated situation because they know the problem. But the point is: if there is a lack
of specialized institutions for example, you can’t build it from one day to another. If in 2008 for
example the Strasbourg Court finds a violation you can’t immediately build a specialized annex.
It takes some time. In reality first we should try to find some money and then maybe we can
do some things. So this is a question of years. So what you saw was a kind of infernal
mechanism. But in the end, everyone was frustrated. The lawyers because they win their cases
but nothing changes or it changes very slowly. The Belgium state, or at least the government,
knowing perfectly what is going on and that things have to change, but they can’t do that just
overnight. But also the Strasbourg Court is frustrated because they know that they cannot
change things immediately. So therefore, in the W.D. case the court has decided to go for the
pilot approach. That is if course a little bit a shame for a state, because then it comes to the
eyes of everyone. So states try to avoid that. But on the other hand it puts some pressure on
states. So often politicians are silently also very happy with it. I personally had the experience
that some politicians told me ‘luckily the Strasbourg Court condemned us. Because we
completely agree on what they are saying, but the point is that I can’t convince my fellow
ministers of my fellow members of parliament and we need some third party, an authority from
outside telling us this.’ This means that for now two years the Belgium state has been working
a lot and serious progress has been made.
Here I have a little point of discomfort. Because something that is completely overlooked is the
position of the individual applicants. Imagine: you’re the first applicant and you win your case.
But the court says: ‘I know there are a lot of other people that are complaining about the same
thing, but we will put it in the fridge.” Now then after the delay the court says to the state:
“what did you do?” And the state comes up and says ‘I’ve been doing this and this…’ And then
the court says that they are so satisfied. As a result all the cases pending are kind of dismissed.
To me this is curious because they were complaining about something in the past. Are we sure
that they got redress? Is there sufficient assessment of their situation? Are we sure that now
that the problem is solved, that we solve the problem of each individual applicant in terms of
regress and compensation? I think there is something to discuss about.
This is basically what we have to say about the judgment as such. A state can be condemned.
We have a judge and we know that this judge can imply things vis-à-vis the individual applicant
and it can inquire things that go beyond the individual applicant. But what they never tell at
university and what they never do in your classes, the first thing you need to learn is that
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winning a case, obtaining a judgment, that’s half of the work. It’s a first step. The real thing is
getting your judgment executed.
Now how are Strasbourg judgments executed? Here the supervision is left in the hands of the
Committee of Ministers. So on the one hand we have a court: independent judges dealing with
violations of the convention, no diplomacy, no legal analysis. But then when it comes to the
question “hey states, are you going to execute those judgments? And if not there will be
pressure on you. Who’s going to deal with that?’ The committee of ministers. That is diplomacy.
How do they do that? They have monthly sessions where they have a list of judgments and
then they adopt resolutions and they ask states if they have solved their problem. In the past
there were not that many problems. And you can imagine that whenever it’s only about
individual things, incidents with no further consequences, it’s easily solved and done. But when
it comes to changes in the legal system, it can take some time. You can’t do that in two weeks.
In some states it can take some time. And in some cases, and that’s what we saw in recent
times, there is a serious problem of ‘bad faith’. Cases against Turkey, cases against Russia,
where you really fell that the authorities were not very willing to execute the cases. Then the
Committee of Ministers can ask the question again and then you see how diplomacy comes in.
And there are cases concerning Turkey where it has been linked through diplomacy and
diplomatic pressure. The argument goes ‘as long as you do not execute this judgment, no
progress can be made in terms can be made in terms of accession to the EU and so on and so
on. That is a problem we have to take into account. Sometimes these executions are not that
problematic but they can take years.
The Parliamentary Assembly has also at certain moments stressed the importance of execution
in good faith of Strasbourg judgments. Once again there is a lot of understanding for those
forms of execution where by the nature we know that it may take some time. If for example in
the Belgian case you need to build specialized care systems. We know that it can take some
months or years. If you have to implement important changes to your legal system, it will take
some time. If it’s just changing one provision in the constitution it may already be something
else. But here it can take some time. But you may ask yourself why then don’t we leave this
supervision up to the court? That’s the independent body. So why don’t we do that and let the
court decide? The court has no way to exercise direct control on the execution of judgments.
It’s the Committee of Ministers. That doesn’t mean that the court has not the possibility in a
direct way sometimes to control the execution of cases.
Here I would say there are two hypotheses that you need to take into consideration:
1. The first one is the hypotheses where a case is dealt with in two stages. In those cases the court
will deal with the merits and the just satisfaction in the same judgment. But it is possible
sometimes that there is no more discussion on the merits, but there is still a discussion on the
just satisfaction. Things are not clear yet. So the court can say that they adjourn our findings on
this side. The judgments on the merits are done, but the judgment on the just satisfaction will
come later. In the meantime parties can find a friendly settlement. So states found in violation
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say instead of investing our money and time in a discussion on the just satisfaction, let’s find a
friendly settlement. Than this will come to the court and the court will have a way to look at
what has been done here. So that’s a way of indirect control.
2. The other way of indirect control is the situation in which a similar case is brought to the court
by the same applicant or by another applicant. For example when the court found that there
was a problem with this Belgian civil law in de Marckx case, shortly after Marckx, there is
Vermeire having the same problem. So he basically complains about the same problem. Now
when the court had to deal with this case it can see whether Belgium has already done
something in response to the Marckx-judgment.
Or sometimes it is also possible that the same applicant comes to the court and complains of a
similar problem. That is for example the case of Caroline von Hannover, which most of you may
know as Caroline van Monaco. When she was 18 she had the first clashes with paparazzi. She
had a problem in Germany and she complained about a violation of her privacy. In the first
case, the Strasbourg Court found there was a violation. Now similar thing happened after that
and then she lost before the German court as well, so she goes again to the Strasbourg Court.
There she says that she’s complaining about privacy violation and you know that I’m a victim
because you already said it in the first case. And then the court can see what changed. And
then in Hannover II, the court found that the German authorities had taken lessons from
Hannover I and that they had done the balancing exercise. So that is a way of dealing with
indirect control.
Protocol nr. 14 introduce a mechanism that you could really call an infringement procedure.
The idea was that if states really continue not to abide, not to respect the judgments of the
court, that the Committee of Ministers with a 2/3 majority could then in the end say that they
are done with it. And then they refer the case to the court to see whether you have been
respecting the constitution. That was the only solution found appropriate. But then there would
be no real sanction. So the court would be asked to give its opinion on the execution. So it can
basically say two things. A) It can say ‘yes, executed, well done’. B) Or it can say ‘we have a
problem’ in which case there is no real sanction apart from the moral sanction. Here I must say
that the court itself is very unhappy with that infringement procedure. Because the court feels
that it is now in a way involved into political discussions, diplomatic discussions that are typically
not for courts but for politicians. And they fear that they are going to be instrumentalized and
used as a tool.
What is the authority of the courts’ interpretation? Whenever the convention says that the
rights of the convention are to be secured, it means the rights of the convention as interpreted
by the court. In the Ireland vs. UK case from 1978 the court already says that it is their first
mission to decide individual cases but in doing so we have also the right to explain and interpret
the convention. So that is what is the convention all about. States have to take into account the
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rights and freedoms of the convention, that is the rights and freedoms of the convention as
interpreted by the European court. In the Interlaken conference the state parties have
recognized this again, but the court should be aware of its subsidiary position. Maybe in
national legal orders there are various positions, but not Belgium. There the Supreme Court
has clearly said that the convention is the convention and the case law. Meaning also the case
law, which does not concern Belgium. So the court says the case law means the case law: that
is cases involving Belgium but also cases not involving Belgium. So there’s a bit of ambiguity.
From a really formalistic point of view you could say that this case is not against my state so I’m
not obliged to do something. But I (professor) would think that an in good faith application of
the convention means that whenever a state is found in violation of the convention, other
states having the same or very similar rules should ask themselves whether it’s not time to
change their internal rules as well.
Tweede uur
Okay so, I think we now have sufficient idea of the general concepts of human rights and the
way the European convention and the courts are functioning. What the consequences of their
judgments are. So now we have to move on and see what precisely is in the convention.
The Right to Life (article 2)
Here obviously, it’s a matter of capita selecta. So we start with what we believe is the first
important right and that is article 2. And that is the right to life, here already you will see, it is
so intrude and obvious, the court will say, and I quote:
“The right to life is an inalienable right that is attributable to human beings and forms the
supreme value in the hierarchy of HR”.
I really like that quote, because obviously it is true. I mean, it is too stupid to stress but how can
we enjoy any other right if we are not alive. That’s why I am stressing that because you will
often hear and see that people say there is no hierarchy of HR and all human rights are the
same, that kind of arguments. We know perfectly why these arguments are made, we know
why, we want to avoid that some HR would be underprotected or some HR are from a political
perspective less importance, that’s why there is this discourse as there is not such a thing as a
hierarchy. But on the other hand this no hierarchy approach obviously reaches, and has some
limits. And one of these limits, how could we not say notwithstanding the fact that we all believe
that there is no such thing as a hierarchy and the court of HR says the right to life, obviously, is
the supreme value.
Alright so, that is the general principle, the question is: What is the scope of the application?
What is the scope of the right to life? And here, you can already here the music, so if you do
the beats and the moves. I already see someone with his head banging because the question
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is: What is life? What is life? (singing) That is basically. It’s Thursday evening, I know what you
will be doing tonight. What is life? That is a very useful question but my answer would be if you
really are into that question, go and unroll yourself from the law faculty and go next door, that’s
the philosophy department, because you are lawyers, this is stupid, easy answer. Yes it is. But
the court basically did the same, in the famous VO case against France. The court case is sad,
in fact all right to life cases are sad. The VO is particularly harsh case because what happened
is: There is a French woman and she is pregnant, it think she about 6 months, and she goes for
an ordinary operation and in that operation something goes wrong and she loses her baby. And
then she brings a criminal case saying this was, in a way, homicide. It was in legal terms,
unintentional homicide. The French court of appeal was affirmative. The Cour de cassation
crushes this judgment by saying the legal term basically... It says unintentional homicide does
apply to these cases. So basically, there she is, and madam VO goes to Strasbourg in relation to
the right to life, the right to life of an unborn child. So the court, if it were really a
methodological court, has to address the question: Is it art 2 applicable? Is it applicable? This
question: Does it apply to unborn life? Obviously, we are coming very close to issues of
abortion, and obviously the judges know that. They know that if they answer that question,
that is why, then, perhaps then there would be problems if it comes to abortion but basically
court judges say. Most judges, because it’s a weird case, the most judges, the biggest group,
whether art 2 applies we will leave it there, we’re not going to address it, we gonna see that
there is no violation. This is weird, as professor you would say: great response, but this is not
the kind of logical approach you would expect. How can we not decide that an art applies? That
would be in a way admissibility criteria. How can you say whether it applies or not, it doesn’t
matter? In order to say whether it is final or not final, or implicitly have to accept that it applies.
If you say that it doesn’t apply then the question whether there is a violation or not would be
hypothetical. Only when it applies, you can say there is a violation or there is no violation. Saying
these kind of things like, we don’t know whether it applies but in either case there is no
violation, I can see why lawyers do that, but it’s a little difficult. But you can see why courts do
that, because it tricky to take a position in such a deeply philosophical debate.
Basically here in those facts, you find what the court really found decisive. It was an accident,
not a matter of homicide, not a matter of unintentional homicide and therefore the court was
of the opinion that there is not necessarily a need in such cases to have a criminal action
available. So the court was not saying, that there should not be any sort of action possible. The
court was saying that it could have been sufficient if French law would have given madam VO
the possibility to bring a disciplinary action or a civil action. There was no clear need to have a
criminal action. Now here the problem is and I think that the problem of madam VO here was
not only that her doctors were not the best, the problem was that her lawyers were not the
best either, because they could not bring anymore a civil law action because of a restriction.
Basically the message given was that you should also have started a civil action. And maybe if
she did, we would have had a completely different position.
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What the court basically does, when it comes to art. 2 what is life, they say: this is for the margin
of appreciation. this is a matter of the domestic order to decide. And that is where Paul
Lemmens is very critical of the court. This is where he said: whenever we think of the margin
of appreciation, we had this discussion a few weeks ago: this is not what the margin is all about!
If the question is “right to life”, then the notion life is central to your contentions, to art 2. And
giving a definition of life is about interpreting the Convention. And that is exactly for the court
to do, and should not be left to states only.
So basically this is a complicated matter, not so much from a legal standpoint, but it’s complex
from a philosophical and ethical point. And the court shies away from those choices. We should
realize that those people in the court are judges and lawyers. They are not philosophers, not
experts in ethics. And more and more we bring them cases where they have to decide literally
on life and death. And I fear that as lawyers we are simply not equipped to answers these
questions. And most probably 50 years ago, people would have gone see a priest for those
questions. And now we ask them to judges and they try to do this as best as they can. Their
core business is to see whether equality of arms is respected, whether procedures are
respected. Keep that in mind whenever you express your voice on some case. There will be
people who agree/disagree with the outcome of a case, but always wonder: How would you
do it, how would you find margins? So were saying: life as it stands, for lawyers is a spectrum.
We don’t know exactly when it starts or when it ends. Having said that, what does the right to
life imply for states. Two big categories of obligations: the negative one and positive obligations
(the last will be for tomorrow). We are at the negative obligations, a prohibition to interfere
with a person’s life without a proper justification. So interferences can be justified. As you
understand, it is forbidden to kill people intentionally or unintentionally if there is no proper
justification. People can’t be killed.
Does this mean that in al order to behave, to invoke a violation of the right to life, there must
be people killed? The answer is no. There are forms of treatment for negligence that are of such
a serious nature, that they can put people in a dangerous situation where they might die. So
we can in such a case invoke a violation of the right to life. Suppose that there is a police agent,
and he runs into this rooms and he decides to kill the teacher. He comes from a Belgian police
station, he is not an expert hitman. You tell him to kill the teacher, he is terrible. But he misses.
The teacher survives. After some weeks, do you think I can bring an art 2 claim? Suppose I go
to the national court, I tell them the story. Of course the police won’t believe me so I go to
Straatsburg. Will they say: you can’t invoke art 2 because you’re still alive? Teacher will argue:
this was such an exceptional case, it was not an accident, but he nearly got killed! His right to
life was under a serious threat. These circumstances were exceptional enough for the court to
accept the claim. So yes right to life cases are usually cases were people die, but not only! So
the argument that sometimes states invoke, that the person is still alive so there can be no
violation, is an incorrect argument. Circumstances can be so specific that still the right to life
applies. So that’s one thing to say.
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The second thing to say is that if people claim a violation of the right to life, obviously (and
specifically for the non-interference part) they must be able to link the facts to the right to life
to a state. Were you present, seriously hurt, by a state agent? Was it a state agent? Now in
examples where the problem is excessive use of violence by police agents, by special forces, by
the army, there won’t be much discussion. But you can imagine that it’s not always as clear.
What about operations by secret services? By nature, people from the secret service do their
job in secret. Rarely people of the secret service just walk around wearing a uniform and saying
that they are from the secret service. But sometimes they do? Can we link this to the state?
Obviously if they are the secret service, we can link them to the state. The point is: how are we
going to establish that? If there are no eyewitnesses? I must admit that what I’m talking about
is typically the talk of someone of my age, because when I was a child people of the secret
service were still the very good ones. Nowadays they go to London and use poison three days
later and we know it was them, it must be the secret service. You can think about KGB what
you want, we all know it was them, that’s because they lost a bit there. This is secret service
from Aldi. In the Cold War, you never knew it was secret service. Only decades later, you would
know. So maybe this was not the best example I could give you, but it’s just to indicate you that
saying that it is a state agent can be easy, but there are very complicated cases as well where
there are no eyewitnesses and no proof. So it must be beyond reasonable doubt. The standard
of proof is all the more complicated in cases of disappearances. People disappear in let’s say
contested areas. It’s hard to proof these kind of cases. So life, negative obligation means no
interference, linked to state agents AND no justification!
This may come as a shock to some, but whereas art 3, the no torture article does not contain
any exception or justification, but your right to life does. The right to life does contain
exceptions. Lethal violence can be justified:
1. One in case of defense of persons against unlawful violence. So to continue the stupid
example of the policeman killing the teacher: suppose there is one of the students who
defends the teacher and manages to kill the policeman. It’s not self- defense, but that
student was protecting the teacher against unlawful violence. That would be a
justifiable exception to the right to life.
2. Second exception is violence that can occur in cases where there is an unlawful arrest
or where people are trying to escape. So whenever policemen are trying to arrest
someone and within the framework of that action there is violence and it gets worse
and worse and someone is killed, it is possible that this is justified. The same goes when
people escape, it can be possible that they are killed without it being a violation of the
right to life.
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3. And the third exception is of course a situation where there is violence and where
violence is the only way to stop that. Now question is what are we going to do with extrajudicial killings? And here you must also think of the kind of killings of Bin-Laden and
here you must say no: if it is in the framework of an armed conflict, then the rules of
war will apply. And they make an exception to the right of life, so art does not
necessarily apply. However, and that is the whole problem: the laws of war imply that
it’s a war between state parties. The whole conception is whether associations, like IS
today, are subject to the laws of war.
If we stick to our 3 exceptions, we see already the mechanism. Someone complains about a
violation of the right to life, links this to a state, then what the court has to do is:
- First, watch if the matter currently/actively done by the state?
- Suppose it is, then: can I link the violence to one of the three categories that I just
mentioned? But that is not enough, obviously, it’s not just enough as a state: oh but
they work with the state and that’s why we decided we could kill them.
-
No the second part entails that it must be proportionate! The violence must be
proportionate. And here it’s not the same kind of proportionality test that we have been
discussing previously. Here it is a strict necessity! The use of force was not useful. It
must be strictly yes, no discussing. You not only have to take into consideration what
the state agent did, but also the circumstances that surrounded him. And here the point
is: as lawyers we must be extremely modest, because in all the cases where we are
dealing with article 2 and whether the violence was strictly necessary, we are making a
judgment ex post factum (= with the knowledge after it). And this is something that
policemen often say and often accuse HR lawyers of not understanding. It is easy to be
strict 5 years later sitting in an often with all the details sitting in a comfy chair. They
say: you will never be in that single moment, half a second where you have to decide
whether you use violence. One day, it was in January I was correcting exams. That day I
didn’t do anything, I switch up the TV and I was watching them, and Paul called and he
asked me: have you seen that? For the first time, you could clearly see how the Flemish
special agents had to decide on the spot. And I think that, and I’m not defending the
use of violence, but that’s where I learned: how is it to stand in that situation. The first
guy that sees something immediately acts, they are trained extremely well, they aren’t
extremely aware of the consequences. But whenever we have to assess their deeds, we
can take our time…
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Les 10 (09/11)
Eerste uur
Okay good afternoon. Are there any questions? Everything is clear? Okay let’s move on. So
yesterday we started with the right to life. And I think I indicated that the right of life is, at least
when we look at it through the lens of negative obligations, it is about the use of legal force
and the conditions in which this can be accepted. It is imported that you know that is not only
about (un)intentionally killing somebody. It is also about the use of force. Which means that
public authorities, who are entitled to set up/ to organize special operations, directed to certain
persons. But they have to be very precautious. They need to avoid legal consequences. They
need to keep in mind that while engaging in such operations, sufficient precautions need to be
taken in order to avoid taking lives of these people and possibly even third parties.
This is something that is illustrated in the famous McCann case. The McCan case itself is not a
case from the 70s. But you need to go back to the 70s. You have to go back to the mindset of
the 70s and 80s, where terrorism was related to certain specific cases. Think about the situation
of the IRA in Northern Ireland, think about the Basks, and so on and so on. McCann relates to
the problems in the UK and precisely in Northern Ireland. What happens is this we know that
the IRA (“aijre”) was using violence against UK targets and at a certain point there was this
believe that there would be a planned attack/ action in Gibraltar. It is this rock in Spain that
belongs to the UK. I am trying to be as neutral as possible. But as it stands it is a rock in the
south of Spain but it is English territory. I don’t know why people of the IRA travelled to Gibraltar
but I guess they thought that there would be less attention. I mean I don’t know. But then the
British secret services got this message of yeah hey these terrorists are travelling to Gibraltar
and they will use a bomb-car. So that is the mindset. Secret services follow the car and at a
certain moment they have them at the border of Gibraltar. And they say: that is the car with
the bomb. They watch what they are going to do. They enter Gibraltar and then they go to a
parking lot. Here the secret service can intervene. At a certain moment someone does
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something with the car. Secret services think that something will explode so they kill some of
the terrorists. When they eventually investigate the thing. It seems that there was no bomb
and it was false information. This can happen but huge consequences. The UK has been
condemned. Precisely because is was found that the operation was not been well prepared.
That due diligence had not been taken seriously. So the Court finds that there is a problem with
the proportionally with the use of force and this in in a way even more problematic in a way
that the whole operation was planned. Because it was based on assumptions, that were
possible. But they turned out not to be true. As such, Such organizations should not be
forbidden but there should be due diligence in the way they organize such operations.
This brings us to a second point under the right to life. That is the death penalty. I am not going
to say a lot about this because this is less of a problem than decades ago. If you look at art. 2.
The way that it is formulated in 1950, it does not exclude the possibility of death penalty. Which
is not surprising if you take into consideration that It was written in the 50s and this was a way
of penalty that was in many of the legal systems (at least in the books) it was still part of many
of the domestic systems. Why would states with death penalty in their own domestic order
would write down a treaty without the possibility of capital sentence. That does not make
sense, so initially capital punishment was still possible. It was only in 1983 that the sixth
protocol was written and that capital punishment became forbidden except in times of war.
And it’s the 13th protocol, which dates back to 2002, that says that it is forbidden in ALL
circumstances, even in times of war. I think that is has been ratified by almost all the states (2
haven’t). This is basically on the European level where we are. So questions about this are most
probably not coming up to the European court. At least in respect to the member states
themselves. Where it still can be initiated is in cases where people would be sent to third
countries where capital punishment is allowed. There you can still have a problem. But in
Europe this should not be any problem. You can see that the court is kind of strict on that. In
the Al sadun case against the UK. There was a matter of capital punishment at stake. We were
talking once again about prison in Iraq. A prisoner who was under British control in Iraq. Who
was going to be handed over to local authorities where death penalty is allowed. It was
questioned if this was a violation to art.2. You may see that there is still a kind of legally
discussion which is only relevant to legal nerds. It is this one: we say that if states adopt
protocol 6 and 13. Whether this means that implicitly art. 2 has changed. That the possibility of
death penalty has been ruled out in art. 2 because of the later ratifications op the protocols.
You cannot read art. 2 anymore as allowing death penalty. I would say that personally: As long
as this 13 protocol is not ratified by all states. I would argue that there is no such thing as an
implicit change of art. 2. Because if we would change an article of the convention we would
need the acceptance of all states, a unanimous ratification, not by all but two. Since this hasn’t
happened yet, we can’t say there is an implicit change. Obviously there are strong indications.
But those indications are not strong enough. The question is whether we really need to go in
that discussion. Because we can leave aside the discussion about death penalty turning it into
a question of art. 3. Where the question would be if capital punishment is a form of torture or
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inhumane punishment forbidden by art. 3. We can easily confirm that according to the court
case law that it would indeed be a inhumane punishment. You see the difference? We are not
going to discuss art. 2 We just take art. 3 and we reach more or less the same conclusion. Which
for you is a good way to see that obviously rights in the convention are separated by articles.
But facts, stories are not to be split up by scholar, academic lines. I think you are going to
discover that if you are going to the bar. Whenever you’re going to read a story which you will
have to read. It is not always one article related to one story. And the next problem there is
another specific article. Sometimes you can address the same thing from a different view
referring to other legal provisions. So that is basically what I wanted to say about death penalty.
If you go more in detail, in any event can capital punishment can be reconciled with
international human right law? The argument usually was that obviously you will need a fair
trial and it may not be a cruel and inhumane treatment. But from an European view it is cruel
and inhumane. So i think we can leave it whit that.
This brings me to the second point. There are also positive obligations about the right of life.
This is an illustration that the distinction between the first and second generation is not
anymore what it used to be even in a very clear political and civil right. These positive
obligations can be divided in two big categories. One thing about positive obligations it that
states have to undertake steps to prevent a violation to the right of life. It is always better to
prevent someone from being killed. So there is a prevent aspect
Second point, there is also a procedural aspect to the rights of life. Occasionally, there are
indeed casualties. There is an obligation on states parties to investigate and to know what has
happened. This may bring with it an obligation to sanction should this be necessary. There is
investigation and redress.
Let’s first turn to the obligation to prevent. What do we mean with the obligation to prevent?
It will always come down to something such as developing a kind of legal machinery and apply
that in fact. That is something I will illustrate immediately. However, the first step (one of the
most complicated steps ofcourse) is once again to determine whether or not there was a risk
that we can relate to those public authorities. And yesterday I already explained you that
creating this link with public authorities is not always easy. Here the question is whether
assessing the risk is always easy?
One of the cases that rather clearly illustrates this is the LCB case against UK. In a way it is a
tragic story because basically it is about a girl who, at a certain moment in her life, gets a castle.
She says that here parents lived somewhere in the pacific area. Her father was a serviceman,
and they were working on “Christmas island”, so it is almost the time of the year to think about
Christmas. Basically what she says, or what here parents say, was that most probably there
were problems on that basis. It was suspected that here father had been exposed to above
average levels of nuclear radiation. So you can see the story. He must have been someway
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contaminated or whatever. As a consequence his daughter gets blood cancer. The following
argument was that the state parties had not taken sufficient measures to prevent the exposure
of the father. He wasn’t informed enough and so on. But now try to explain and to substantiate
that risk and that probability: Is that really so? Can we really infer from this exposure to above
average levels of radiation that this is really the cause of the cancer of his daughter? The court
says there is no violation. We cannot expect states to undertake steps. We can’t establish a
causal relationship between what happened to the father and to what happened to the
daughter. The court also says that is very uncertain that an early monitoring could have
prevented this. So no violation. I think that is a clear case that indicates how difficult it can be.
By the way it is also a case that illustrates quite well that you don’t need to be deceased. The
applicant was still alive. So that is the first thing about the risk. What is a risk?
Obviously in some other cases the risk is far more clear. E.g. Greek case against Makaratzis.
You have a traffic light, then you have a car with some persons in there. Then it’s green and
they start very fast. Every time you do such a thing there are policemen. The police eventually
shoot in order to make them stop. Here people say this is a violation of Art. 2 because it was a
serious risk to the lives of the people in the car. The court says “okay let’s have a look at it”. Are
sufficient steps taken to prevent that such things happen. Obviously the court goes to the Greek
authorities and asks ‘what are your rules?’ but that was a painful question because then it
appeared that the regulatory framework applying to the police and to the use of arms dated
back from WWII so it was not very clear. The guidelines were not clear. And here you could see
what the problem was. If you want, as a state, to prevent accidents one of the things you have
to do is create a clear legal framework so that policemen or servicemen or whatever know what
they are up to. And so that was one point.
The second point was ‘was there a proper investigation and have there been any sanctions?’
and there again it seemed that the Greek public authorities didn’t take the case very seriously
from that perspective. There was no problem at all. This is not what the court accepts. The
court doesn’t say you have to punish people necessarily but just whenever you investigate
incidents you have to take that serious, you have to do that in a serious way.
That already indicates that one of the important obligations to states is: you need to have
effective criminal law provisions and there should be serious law enforcement. Whenever there
is an intention to take lives there should be criminal law provisions. There are cases where the
loss of lives is an unintentional act. Then it is not necessary to be dealt with by criminal law.
There civil law may be enough. Eg. In some medical areas. Here there is no need to criminal law
sanctions. The possibility for tort law can be sufficient. So the sanction thing is an important
one.
The legal framework on terms of prevention is a regulatory framework that allows somehow
preventing disasters. Here we are typically in the field of zoning laws or even environmental
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law. This are for example the Seveso (?) norms. That you have to google. Seveso is a place near
Milan. I think in the 70’s or 80’s one of the first big environmental disasters happened in Seveso.
We learned from that. So industrial plants that cause serious risks to human lives and the
environment are all Seveso factories or plants. If, for example, the factory of Donald Muyle sets
to fire that is no problem perhaps. But if a chemical plant in Seveso or another chemical factory
sets fire, that is another thing. That is very serious. If you think about it, this is a positive
obligation. This is e.g. in the Turkish case Öneryildiz. There is an explosion on a rubbish sight in
Turkey. Even if it’s green waste it produces gasses and it’s hot. If you have industrial green
waste, you basically have bombs there. You can set on fire the whole thing since there is a huge
amount of gas there. It is a huge explosion. Many people were killed here. Is this somehow a
violation of human rights? You could say, we were not willing to kill people because this was
not me. But the point is: was it acceptable that people were allowed to live next to such a very
dangerous sight? Here comes in the Seveso, zoning reasoning. The environmental law
reasoning: maybe, you as public authorities are not responsible for the dangerous activities but
you are responsible when it comes to zoning responsibilities. So, zoning laws and regulations
on dangerous industrial activities are obligations that stand from Art. 2. And then again you will
see you still have the procedural obligation. You are going to investigate what happened and
you’re looking for redress.
That is preventive regulations on a general basis. But you can also have it on a micro-level. Then
it becomes a matter of operational level. Here it is often a matter of prevention against
dangerous individuals or specific situations. Here the problem is to assess whether there is a
serious risk and whether the public authorities are or should be aware of these risks. You see
how lawyers or the court struggles with this risk assessment. One of the clear cases here is
Opuz against Turkey. This is basically the story of a very violent person. He is married to a
woman who is victim of his domestic violence but also his mother in law is victim of his domestic
violence. No jokes on mothers in law please. At a certain moment the mother in law can’t
accept anymore what is happening. So she organized the removal of all the belongings of her
daughter. So there is a van, she’s in the van. The guy sees what is happening, he runs out and
kills his mother in law. Here the question is an operational question. Was there due diligence
by the public authorities? Were they aware of the risks? Was there a clear immediate risk?
Could they have known that the mother in law was at risk? And the answer according to the
court was ‘yes, in light of the previous behavior and circumstances and other things he did’.
The public authorities were informed. We asked protection but you didn’t do anything. When
someone was saying ‘he is going to kill his mother in law’ you were probably laughing with it.
But is wasn’t a joke, it was serious. There were sufficient elements e.g. he was previously
sanctioned. Therefor a violation. The point is obviously: how far are we willing to extent this
reasoning? And there is a case Mastromatteo against Italy. It is a tragic case, as all cases in this
area. Some prisoners were on a leave so they got a temporally permit to go back to their
families. We can all see, in all countries that you have to re-integrate prisoners, even those who
committed the most terrible crimes. You will have to prepare them for release. You can be
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extremely severe but then what you get is people that are completely unprepared to get back
into society. So it is believed in most countries that the closer the re-intigration comes, the
more they should be prepared. What they were doing in this case on those days they robbed
the bank. You could say “you were aware that these were dangerous people and that there was
a serious risk, and nevertheless you decided to give them some days of liberty.” Now here the
court decided that you cannot extend the reasoning to this point. So no violation of Art. 2. One
of the arguments was that this risk-assessment can’t be too severe because otherwise reintegration for prisoners would be impossible. You would not be able anymore to let prisoners
go to their families for Christmas.
Tweede uur
I think that in the cases we have been discussing up until now maybe the basic problem was a
problem of risk assessment. To what extent public authorities know, should have known that
there was a risk? And to what extent can they be reasonably expected to prevent it through a
general framework for example? Once again, I think you see how difficult it is for judges to
decide here because you may feel that this is a matter of policy, risk assessment is a matter of
public policies and not so much for judges. Once again there is a discussion on who is going to
take the decisions here, is it up to politicians or is it up to judges? And if judges intervene, is it
from a very close distance or should they take a step back and look at it from outside leaving a
certain margin of appreciation? So that is the difficulty in the cases we have been addressing
up until now.
Now I move on to cases that are also very difficult, but here it's perhaps not so much a matter
of a conflict individual right versus policy conciliation, but much more a matter of an individual
right versus perhaps another individual right. Here it becomes a matter of states intervening to
protect their right of life against the behavior of individuals themselves. Think about suicide.
Are states under the obligation to prevent suicide? Obviously there is no such a general thing,
at least under Belgian law, that turns suicide into a crime. That's not the question. The question
is rather directed to persons in specific situations: prisoners for example, people with an
unsound mind. Is there an obligation to protect them? And here of course the Court is in a very
difficult position. Because there is a difference between someone committing suicide as a free
person and a prisoner. Because there obviously the question arises whether states have taken
sufficient steps to prevent. And there is for example a case De Donder and De Clippel v. Belgium
that precisely concerns a suicide in a prison. I still believe if you leave out the facts, it was an
accident because basically someone found a belt whilst showering. Because of this mistake of
the internal organisation of the prison, the person got the opportunity to take a belt and that
after the showering he takes it with him and hangs himself in his cell. The whole question was
then: is this a violation to the right to life? The Court comes up and says 'yes'. That it was
negligence. In Belgian law we would call it a plain case of negligence. So there was insufficient
due diligence. If this happens in a place where there are no people with mental diseases
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(depression), if this was to happen in a student residence, there would not be a single problem.
Here it happened in a situation where you as a state, you knew or you should have known that
people have serious problems and that there are indications of this risk. State hasn't been
sufficiently careful. So, suicide can be a problem. Similar issues arise when it comes to hunger
strikes. Do we accept hunger strikes in prisons? This is, from a certain perspective, even more
complicated. Because the alternative to hunger strike is forced feeding. Can you imagine in
what a difficult position states would be? Suppose you're the legal adviser to the state and a
prison director says 'we have a problem, there is someone who started a hunger strike, what
do we have to do?', what would be your advise? If you say, don't do anything and the person
dies, then violation of art. 2. You knew there was a serious risk, in fact you were monitoring it.
In case you say: force feeding, then there is a violation of art. 8 and personal autonomy. Against
the person's will, you start to feed him and violate art. 8. But the point is, you have to make a
decision. I'm not sure about the criteria that the Court will use: forced feeding is acceptable
when there are nutritional necessities and procedural guarantees or rather in favor of the free
will, but then you have the risk. I think that more and more I see cases that in the national level
the mindset has to change and where we as legal councils have to tell the authorities that we
prepare that in every case there is a risk that you'll be found in violation of the Convention. It's
up to the authorities to prefer or choose which violation is less serious and go with that one.
But the idea that there is an easy way to avoid any problems from the spectrum of the
Convention is not realistic. I'm sorry to come up with these terrible issues on a Friday evening,
but what about the euthanasia? And there are two cases that are landmark cases when it comes
to euthanasia. And the first one is, and we will discuss it again under art. 8, is the Pretty v. UK
case. The question was: you have a couple, man and a woman, and the woman is terminally ill,
and she wants euthanasia and apparently at that time, that was not possible under English law.
And she says I want "assisted suicide". Since you can't prevent a person to commit suicide,
because not a crime, and since I don't have the forces to do it myself, I need someone who's
helping me to commit suicide and that should not be of a problem. She asks then her husband
to do so. And husband says yes. Then she says, "I can only accept that, if I know for sure that
you won't get in trouble afterwards". What they do is contact the public prosecutor and explain
the situation. That the husband will be helping and that this will only go on if the public
prosecutor agrees not to prosecute. If you are a public prosecutor, what do you do? Only thing
you can do is to say that you are deeply touched by the story but whenever your office is
informed about a crime, you have to prosecute. It is your duty. Can we imagine a public
prosecutor saying to people that are confessing to commit a crime later that day 'okay, fine,
you were so kind to inform me before hand and I won't prosecute'. Emotionally it feels right in
this particular case. But from a legal point of view, he can't. So this case was brought to the
Court. The argument basically is drawn from the structure of negative freedoms that can be
found for the right to association, the right to religion or the right to freedom of expression.
You have the right not to become a member of an association, right not to believe in something
and the negative freedom of expression which is the freedom not to express yourself. So the
question is: can we say that article 2 includes a negative dimension, the right not to live? The
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Court says: no. This goes too far. Art. 2 doesn't entail a right to die. You can't claim it. The
second case is Lambert v. France. The point in Lambert is this one: we have a person Vincent
Lambert who was a victim of a traffic accident and as a consequence he ended up in a coma, a
vegetative status for years. So kept alive only artificially. This is a big difference when it comes
to Mrs. Pretty, she was alive. Lambert was alive malgré lui, only because of the machinery.
Lambert had discussed this kind of topic with his partner and family and said that if he ended
up in this situation, he wouldn't want to be kept alive by technology. He was in favor of what
we will call here euthanasia. The sister confirmed that was true. But the mother refused. This
is an example of a tragedy, we are far beyond traditional law. We are here in one of the most
profound anthropological discussions we can find. On one hand the partner that wants the will
of the man to be respected and on the other hand the mother that doesn't want her son to die.
Can we blame the mother for saying that? This is not a legal question. This is a profoundly
anthropological question. How can we be amazed about the fact that relatives for years are
following in courts about the right of a poor person who's living attached to a machine? It has
become a kind of ping pong game where the person at stake is not really respected. But the
French court decided that under French law it was possible to stop the therapy. But the mother
continues proceeding, up to Strasbourg on behalf of the right to life of Vincent Lambert. And
here the Strasbourg Court is of course in a very difficult position, and they perfectly know that
in a way there is a serious risk that their findings, their judgement, will be used in the euthanasia
political debate. So they try a little bit to avoid that by saying: this is a case about discontinuing
a therapy. Therefore they say that this is not a case about the negative obligations of states.
This is a case about the positive obligations of states to protect the life. If it's about positive
obligations, then it follows obviously that they can leave a wider margin of appreciation. And
then they follow by asking: how does the French system protect life? So they analyse the legal
framework attained to stop medical therapy in a certain moment, therapy that is deemed to
be ineffective. Then there is an analysis of the more procedural aspects in the way the French
authorities dealt with it. If a therapy can be discontinued, how then is this decided? They go
and have a look and say that this is decided through a very well-developed procedure, where
doctors have a say, where the family can be heard, where there is a team that decides. And
that is completely within the margin of appreciation of states. Equally, the Court observes that
there are remedies against the decision of that team, and that these remedies for instance are
an appeal before the Council of State acting as a full court at that time. So for the Court in
Lambert, there has been no violation of article 2 but it is a typical way for the Court to deal with
very sensitive ethical questions. It's by basically saying: this we leave up to the court of national
states and then we will just see whether all interests have been duly taken into account, and
whether there was an appeal possible, whether there was judicial review possible of the
decision that happened. If that is done, for us it's fine. And I am not an expert in this field, but
if you have a look at what is happening in Europe, I think that euthanasia is more contested
(there is more discussion) than abortion, which means that for the Court to take a very clear
position on euthanasia, I wouldn't think this is something that will soon happen. If you have a
look at what happened after the Pretty case, within the parliamentary assembly of the Council
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of Europe decided that this can't be accepted to be generally accepted. So what we have is,
also from a Belgian perspective where euthanasia exists for some while, that this is something
that is relatively uncontested in Europe, but that is not true. There are plenty of Strasbourg
cases where we realize that we are looking at it with an approach to ethical issues and that is
rather particular for example for the Netherlands, Belgium and Luxembourg. You can't just
extend to the rest of Europe, not even to the rest of Western countries. Keep that in mind. You
will see that in France, this is extremely contested. That is in a nutshell to create legal
framework. The other fact of the discussion is that the other positive obligation is the
procedural obligation in that as a state you have to go and investigate and possibly after
redress. When do you have to do that? Well basically, in cases where there are suspicious
circumstances, in cases where that occurs due to events that are clearly under responsibility of
public authorities. So to say, in prisons or in police stations. And then even in sometimes in
cases where there is an unintentional debt (?) occurring due to actions and behaviors of people
that are not state agents. What you do is seize that in all what is asked is investigation. And
investigation means that there must be a sincere attack to in the first place, understand what
happened. And authorities should do that out of their own motion. It is not for the victims or
the relatives of the victims to ask to take steps. It is for them to accept. That is why there is a
legal traffic incident. It must be an investigation that is effective, that means that it should be
able to lead to a serious outcome, it is not just a performer investigation. The scope or the aim
of which is clearly to understand what happened and identify who was responsible and who
should be possibly sanctioned or punished. Obviously, as you can imagine, it's an obligation of
means. Not of result. You cannot expect public and judicial authorities to come up with results.
Those who followed a little bit 'les Tueries du Brabant', 'de Bende van Nijvel' in Belgium can
understand that it is an obligation of means. How can you blame public authorities if there are
still cold cases? Secondly, it also means that your investigation should be independent.
Independent that is in the first place: the people on the ground doing the investigation should
not be related to the people suspected or involved as state agents in the incident. In other
words, if there is a discussion on legal police violence in a police station X, you're not going to
take police officers from that police station X to investigate the colleagues. You ask people from
a special team, or from another police station. Not too close to the ones on the scrutiny. That
on the micro level. Obviously, the authorities in charge of the investigation should also be
independent. If you have a public prosecutor or an investigative judge, states should make sure
that they are sufficiently independent. That is the second point of the investigation. The third
point is that there should be public scrutiny. That means that state should be involved, a matter
of accountability. There must be somehow a public outcome, a result. I'm not saying there must
not be secrecy of the investigation, but the results should be made public or at least the public
should know what was the result. That is in a way a matter of confidence, of making sure and
avoiding that there is collusion or an appearance of partiality. Obviously, this idea of public
scrutiny varies from case to case according to the importance. What is important is that the
next of kin, that the relatives, that the parents of the victim are involved in the procedure to
the extent that their legitimate interest must be protected, safeguarded. What you want to
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avoid is that because people did not know what was exactly happening, that they take legal
steps. I just mentioned 'les Tueries du Brabant' but I really think that if you compare the way
we are now dealing with victims or their next of kin with 30 years ago, I think that an incredible
progress has been made.
I know that there is a lot of criticism on the human rights court and I think sometimes this
criticism is justified, but please we should not forget that in so many fields, it helped in a more
humane justice and I think that this is important. There is one thing we absolutely owe to
victims, and that is the respect for their situation.
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Les 11 (15/11)
Eerste uur
Okay. Good afternoon. Any questions concerning last week classes? Everything is still clear?
Right to private life
Last week, we discussed the right to life. Now I want to move on to art. 8 concerning the right
to private life. This is private life, family life, home and corresponding. We focus on the first link
of the term. The right to respect to private life. And once again the first thing to do is to define
the term. What is life? We are trying to find an answer on the question what is private life? Or
in other words what is privacy? The question would be what is privacy? And here again, I fear
this is the deconstruction of anything you know about law, because in the first year of law
classes, obviously all these professors have been saying that definitions matter. And what
matters to law is that defining precisely the terminology and that we are in a way like
mathematicians working with precise concepts. Everything that I have to say in this class is that
it is a basic understanding that it is specifically hard to define a definition. And privacy is
probably one of these best demonstrations of that fact. It is completely impossible to define
privacy. Many people tried, but they all failed. This is weird in a way, because privacy is so often
used in so many contexts. People are always almost all the time talking about privacy. But if we
ask what does it mean? What have you understood about privacy? It would be an embarrassing
question. It is very hard to define.
It is perhaps hard to define because obviously at its origins we have a clear understanding what
was initially meant. If you go and have a look at the origin right of privacy, you see that people
always refer to this famous article published in Harvard law review in last part 19 century by
Samuel Warrant and Lewis. And they explain what they mean by the right of privacy. They
explain what right to privacy means, but everyone is saying that article. The right to privacy is
the right to be left alone. Basically, that is a good starting point. The right to privacy is believed
to be a right as a shield, it’s kind of a China’s wall. It is something that eliminates a sphere, that
is protected on the views of other. Basically, that is privacy that is about your bathroom and
your bedroom. No one should come there. We need to understand what happens. What
basically happens is that first understand the right to privacy as a right to protected against the
views of others. Then it becomes, and we will illustrate this with case law. It becomes a right
where people ask and formulate a positive claim, precisely because in that space, room, where
no one is coming to have a look, you are entitled perhaps to do things that are forbidden and
since nobody is entitled to have a look. So, there are maybe not so good reasons to forbid those
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things, if nobody is entitled to enter that room, space. Typically, by the evolution we have seen
that is relate to sexual behaviour. You have for decades, centuries, legislation that forbidden
for example homosexual behaviour. The point is that maybe as the moment on that you
recognise that there is a sphere that people are entitled to be protected in a sphere where
nobody is entitled to intervene, why would it matter what people do in that sphere? Even in
the sexual sphere? There you see that it’s not only being protected against views of other, but
becomes in a way a right of self-determination, autonomy.
In German case law is Selb-bestimmstrecht: there you see and that is de common issue with
privacy that it is a kind of Janus Bivarusv (?). It is a two handed right: on the one hand a right
where you say I want to be protected against the views of the others (negative aspect) and on
the other hand a positive aspect it becomes a right where you claim, you entitled to behave in
a certain way. It is about autonomy and self-determination. The way that it has developed in
the European Convention, is the most fundamental question. It is a relational notion, it is
related to one fundamental question. The question about how I within a society am related to
my neighbour. To the other, to what extend am I protected against views of the other and to
what extent are the others entitled to interfere and interact with me. You could summarize this
by a French song, by Jacques (?). There are a lot of people around, how do I relate the single
person to the vast majority, where do we find the strike in balance in a society? Knowing that
excluding all interaction by just saying it is what the individual want is completely impossible.
There is no social life impossible, if we completely say that social interaction only depends on
what the single person wants. On the other hand, we cannot imagine the opposite. Meaning a
society that doesn’t recognize single individual space where people can be themselves. What
we do under the privacy provision is to find a sort of balance in between those two extreme
positions. However, having said this, keeping that in mind, nevertheless it will be very difficult
to say what we exactly understand about privacy. And the court itself in important cases on
privacy, for example in the Mimits case against Germany recognizes itself. The court says it is
very hard, almost impossible to define private life. What you get is rather a kind of illustration.
This is part of privacy and these kinds of cases, questions, debates are covered by privacy. It
develops. And you can exclude the issues that previously not considered as private life that now
consider inside the scope of private life protection. That is what happened with sexual conduct.
And other controversial issues like right to a name. We see that art. 8 on private life tends to
extend itself. And in this way the use by the court of art. 8 has been critized or described by
many scholars as a catch-all provision. If you would be an advocate or something and you want
to make a claim under the convention you can’t find a precise article covering de debate at
stake, there is always the fall-back position art.8. And that’s on these editions on environmental
protection were linked by art. 8.
There is this case, the Bota case against Italia, which ultimately was dismissed not because it
felt out of the scope of the convention. An Italian person in wheelchair at the beach complains
that there is no access to the beach. Which of course made it difficult to get access to the
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beach. The question is, is getting access to the beach is that an issue that is covered by art.8,
by private life? And the point is that this is important, but it maybe goes beyond art.8? It doesn’t
say the court, not out of scope art. 8. We have a huge variety of questions that are possibly
covered by art.8, private life and this is reflected by the cases. And if we go and have a look at
the kind of cases covered by art.8? You see that the most obvious cases covered by art. 8 are
concerning the original meaning of privacy. The idea that people have the right to life privately
shielded away by unwanted attention. An issue concerning the very intimate life of people like
sexual behaviour, sexual orientation, but also cases concerning confidential information. That
is what then became so important. If we think about privacy protection in the sphere of data
protection, it is also in the shield of moral integrity. And here of course there can be interaction
with the right to life or the right not to be tortured, be a victim degrading human treatment…
So here again you can see that there is a kind of hierarchy or fall-back position, which is very
useful if you are a human rights defender, activist or lawyer, because if you suppose that your
client was a victim of a kind of treatment, but you have doubts whether it was sufficiently
severe to qualify as degrading treatment, there is always that idea that you can say okay listen
it was in the first place, in hoofdorde, it would be a matter of violation of art. 2 or 3, but in
subsdiaire orde then it may be a violation of art.8, private life. Because people had to undergo
behaviour treatment, that maybe wasn’t severe enough to be torture, but that was perhaps
unpleasant and therefore qualifies under art. 8. This can be for example some form of sexual
assault; this can be form of unwanted medical treatment. These kinds of cases… This can be
cases of corporal punishment in primary schools, if a teacher is slapping a child. Maybe we
wouldn’t think that it is not sufficiently severe for matter of art. 3 but can be a matter of art. 8.
Again, health issues can be a matter of moral and physical integrity. Here again this can be
related to other forms of privacy regulations. Next cases are cases that are closely related to
the identity. Here I already give you the example the right to have a name. European
conventions do not clearly protect the right to have a name. Other Human Rights treaties do.
But the right to have a name is right protected under the convention. There are many cases,
some of them concern typically on the right of married women to keep their name, not be
forced to take name of the spouse. There are obviously cases on the paterilenium transmition
of surnames. So do newborn children have automatically the name of the father? Is it a
discrimination of the women? Yes, says the court. In 2014 in a case against Italy.
And there are obviously cases on first claims. There were, all groups, for example there was a
case in France, were all groups were saying there was a limited list of first names that could be
given to children. So civil servants, registers, could refuse a first name, because it was not in
the list. The list would be typically made of names of ancient history and Roman Catholic saints.
French case. Paris wanted to call their children Fleur De Paris. This was refused and in a second
opinion a former law professor judged that this was forbidden by French legislation because it
was not on the list, but classic name would be admissible. You would call your name without
any problem Caligula. But now there is a matter of or what would be harder to bear as a child
when you ask what is your name? Caligula, Nero… But Fleur De Paris would be unacceptable.
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When it comes to identity issues there are cases on transsexuals, trans genders. Very
important, fascinating case law on trans genders. Cases on sexual orientation and even on
ethnic identity, Shapman case (?), related to that cases on reputation, image, related to that
informational privacy, not only about your identity, but also the way this information is treated
and used and processed. We are all aware of GDPR (complex) data protection legislation,
before data protection rules. In Belgium the Basic law was in 1902. Before 1902 cases about
data processing were covered by art. 8 Eur convention. We know that for example landlords
make blacklist of lessors saying if you get that person in your apartment, you only have troubles.
Not paying rent, or paying every now and then, damages to furniture’s. Found back in 80s - I
think it was in Namur - some landlords have joined in a way their personal experience. On a
Friday, went to the bar, saying trouble with lessor. I have Peters, and you have Dupont,… You
give your problems to me and me to you, and we have a list. Than if Peters is calling, then say
no I’m sorry. So, one discovered there was a kind of blacklist and say violation of art.8. There
were no other precise rules to assess that behaviour. Now data protection rules are much more
complex, detailed, made out for the digital world, the very basics are not so different we human
rights lawyer work with art. 8: assessity, legitimate aim, proportionality.
We move on to the more positive sight personal development, self-determination. The right of
self-development, which we discussed last week under art. 2. You can take it under art. 8. and
that is what we will discuss now. That you can say this right to assist a suicide, right to die.
Maybe we must take it under the right of self-determination, matter of art.8? What about the
right to choose your lifestyle? What if you accept that and this is what the court does, you can
see the far-reaching consequences. Personal life style convers possibly all human behaviour.
So, convers art. 8. I made joke in first classes, but it wasn’t maybe a good one if you have
forgotten it, I think I said something about self-expression, the way to dress. What about the
way you cut your hair? In the 1950 if you told the drafters we are making a convention because
people are complaining about people’s haircut, they would have said no way. But that’s
basically what happened. Not immediate saying issue of a haircut under art.8 like Lemmens
said. But there are cases in which that argument could be made. Here is a funny case. Imagine
this Swiss quy, called back every year to come back to the army, you must go back to have some
sort of training. The Swiss army said you have your hair cut short. Military obligation for a year
in my lifetime and then my hair should be short, court would say proportionate. But this person
had for 20 years a period where he must have his hair cut. Is it an issue that can be discussed
under art. 8? That was accepted the way you want your hair is a matter of art. 8. But there are
rules limiting it. The way you dress yourself can be covered under art. 8. In those cases, example
religious dress, it can be covered under art.8. So, you will see in the further examples how this
idea of self-development, how this goes further and further. So that is one thing. This was a
part of information that is closely related on the person itself.
Privacy is a relational notion. Concerned with relations of others, zone of interaction with other
people that falls in scope of private life. The development of those relations of others is
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occurred? Obviously also more public choice, example right to choose a profession, interact
with other people. Can be covered by privacy issues. Do not think privacy is only personal
sphere but also interaction with other people. Privacy isn’t anymore the idea that there is a
zone limited in space covered, like home and private. I have colleagues, older, that would argue
if student work on street, go to oude markt, kiss someone, and a picture is taken. They can’t
complain of violation of privacy, because it was in a public place, not in a private place. This is
wrong. The mere fact that your behaviour that it wasn’t in a private place doesn’t exclude that
in falls under protection of private life. What matters is that you have reasonable expectations
of privacy. That is what matters. And there is a kind of difference but it’s gradual. You cannot
expect that you have the same level of private protection in bathroom and public space. But
you have privacy rights on the public place, if it can reasonably be expected. For example, this
explains that if you are driving your car and park in some garage, there is a system of video
cameras in parking, they must announce that. Why is that? Because you have privacy rights. If
on the public place there is no privacy then you would not need rules on privacy in the public
place, but there are rules. You see the point. We have cases where court said police can monitor
the streets. But there is a difference between monitoring and processing! And people have
privacy expectations when it comes to processing that information. It also everything that’s
related to rights to one’s image. If there would be no privacy on public places, consequences
that photographers can do what they want, because there’s no private issue. So, when you
have your beer, you kiss, picture/photo, but there is no privacy on the public place, you should
go to your student room! NO, you have a reasonably expectation to have privacy. Exception is
that it is accidental. But the photographer thinks it is a wonderful picture… Then you need
approval of the person, because they have privacy, even on the public places there can be
reasonable expecting of private rights. In cases where there are no doubts that essentially
public activity that the court will say we don’t see any reason to claim or take privacy right
seriously. But I would say these are limited cases. Not sure that the court has no strong idea
about it. The tendency is on costing the web wide. Including a lot of behaviour and then adept
a proportionality test. If these are activities at the limits of privacy, then maybe we should not
be too strict on the proportionality. But if it is a behaviour is really the core of privacy then if
we see an interference, we must be strict of the assessment of the interference. That is
important. That is also a little bit backed by the idea that the court in any event that is now a
little bit covered by the admissibility criteria but suppose that there is like a diminimis. If you
are complaining of extend privacy to everything. Everything could be a matter of privacy. Avoid
that people go and complain all the time about privacy violation. The court can say there should
be a minimum level of severity and seriously. But I am not convinced they have a well-reasoned
approach on that. Sometimes I must admit this approach of calling something not serious is in
a way, it is biased.
Let me give you an example of a case that is made for law professors and it is not taking very
seriously. Hardly ever discussed. I’m warning you because it is about a naked man in Scotland.
If you can’t stand the idea you can go. But I admire the guy, it is the Gurk case against the UK.
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Mr. Gurk is a naked rambler. He is a nudist that walks naked all the time in Scotland, where it
is cold and rainy all the time, can you imagine. Therefore, they invented whisky. This guy walks
naked all the time. He got in trouble with public authority. This is a matter of public morals.
You wouldn’t want your professor to be a follower of Gurk. The point is I don’t want to be
prude, but we have zones where people can be nude, for example: nudist beach, saunas... In
most countries they say there is a minimum of clothes necessary. He said no, he said he is naked
all the time and very serious about it. He was sentenced to prison and goes to prison, he accepts
it. His message was that the human body is innocent. He loses obviously in court. The case
comes in Strasbourg. This was only some months after the French Burkacase. In that case it’s
about concealing, the fact that it’s forbidden in the public sphere to conceal your face in part
or in totally. One of the persons complaining about that decision is a French Muslim woman
complains because every now and then she wears a burka. This is now a crime, so she can’t do
that anymore. The court said this is a matter of religion and believe. So, the court said it is a
matter of art.9. religion believe and personal intolerance. We can discuss whether it is freedom
of expression or whether it is religious expression. What is important is that the court fix it up
and then discusses it with the focus of art.9. Mr. Gurk said essentially the same. But the
difference is that Mr. Gurk cannot refer to a big well know established religion. What the court
says let’s consider it under art.8 instead of religion and believe. It should have a minimum of
severe of seriousness and so on and so forth. Can we really say that Mr. Gurk is not serious on
individual level? If he is always naked, can we then really say that that was not in his personal
identity that important or that serious? It is ridiculous in our understanding maybe from a
material point of view it is completely ridicule that someone holds those believes or ideas. Can
we say that is not lift in a serious way? Even if you have accepted to go to jail? Why is that not
serious enough when you accept that in a case where someone says I’m forbidden to wear
certain way but that I’m not dressing like that all the time, but now and then, I’m dressing like
that when I feel about doing that. That is not to say that in the Burkacase, SAS case the court
had to say that it wasn’t serious. It was serious, the court was right. In the Gurk case it was too
easily founded a bit futile. So, there is only, or maybe other people have different
understandings about that case, I just want to say, I want to warn against too easily considering
that claims under personal autonomy are not serious. We are here addressing a value
judgement on life styles that we on a material base believe to be ridicule, but maybe to the
person himself and to their identity are very important. It would not easily rule out this.
And now I’m going maybe a bit beyond the scope of art. 8 but I would even say that this holds
true in art. 9 about religion, where you all know the pastafaria. The problem of so the called
invented religion and where the courts I whole Europe struggle with people claiming hoping to
get exceptions to general rules. Because those general rules violate their religious rights. So
just to give you an example: when the first rules that forbid smoking in public spaces entered
into force in the Netherlands, some people says smoking is my religion. They made it the
smokers church, it is documented with a whole theology on smoking. The only thing they
wanted to do is to get an exception from the rules forbidding the smoking in restaurants, bars
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by saying that this violates my right to religion. Obviously, this was nonsense. But the argument
should be made, in my opinion, under the proportionality test and not under the argument it
falls outside the scope of religion and believe. Because if we do that it forces judge to make
decisions what is a true religion and what is ridicule? The problem with religion is that it is
always the others religion that is ridicule. The own religion isn’t ridicule. And that is typical,
because if you thought the other was the real one, you wouldn’t believe in your religion. So, I
don’t think it is a smart thing for judges to make those distinctions. They had to say yes, the
smokers church it is a religion and then come to the conclusion that no religious right is an
absolute. An that authorities can impact on your believe by limiting or forbidden smoking in
bars, restaurants… That is the point I wanted to make.
Okay, 10 seconds before the break. You see personal identity covered by privacy, it covers you
relation with other people, but also relation with other people that are in the public, but
nevertheless do have some confidential aspects, for example the relation between a lawyer
and his client as such is not something that is part of private life, it’s like the opposite typically
be not always but I mean commercial content it is a public thing. But however whatever clients
communicate to their lawyer is covered under art. 8. And that is what we see in for example
the Nimitz case where the lawyers-client privilege is found to be part of art.8.
Tweede uur
Let’s have a look of how this is all reflected in case law. First line of cases are cases concerning
sexual conduct. There are important books written on homosexuality and sexual orientation by
Paul Johnson. Case law is here very important. You see a mechanism that you see often in
human rights cases. The first cases that were brought to the Court were held inadmissible, but
later you see the first violations coming up. This is a message to all of you that makes clear that
you shouldn’t shy away from a kind of legal activism. The evolution of European Human Rights
protection is in a great part due to academic lawyers. When you want to go to the Court but
you’re afraid it will be held inadmissible, don’t give up. Maybe the Court will say: “In the past
we decided this, but now times has changed.” The judges in the Court have very different views
on how they should tackle these changes in their case law. This is partly due to their
background. I had a discussion with a young judge in the Strasbourg court. He was trained in a
legal system where legal precedents were very important. He explained that to him changing
cases was a very serious thing. He told me that he was the complete opposite of Paul Lemmens.
In the Belgian legal system we don’t have this force of precedents. If the courts want to change
its position, it will change its position. The Court of Cassation did that all the time without
explaining. It has always been like that. One paragraph, no more explanation. Even when
everyone tells you that you don’t have a chance, go to the court. You never know if you can
change the mind of the judges.
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1. The Dugeon Case is on criminalising in the UK, in Northerin Ireland. It’s about punishment of
homosexual conduct. It’s forbidden by law. It is also an important case on the admissibility
ground. You know that in order to bring your case to Strasbourg, you have to be the victim. The
point was that Mr. Dngeon was not a victim. The Court asked him: “Have you been contempt
to a fight or to prison?” He answerd: “No. But I potentially am.” Being a potentially victim is
normally not a sufficiant criteria to go to the Court. The Court decided that this is so important
to a persons identity, the impact that a punish has on a person is too important not to take that
into account. Is this a violation of private life? The court said it was a violation of his rights. If
you re-read it now, it will be a strange way of arguing. There were no sufficient reasons to
punish. That is strange because they can consider there are reasons to punish homosexual
relations, but only here in this case were no sufficient reasons. There are a lot of arguments to
develop and criticise. What matters here is that it found the prohibition of homosexual relations
always thought in terms of violation of article 8. That’s an important break-through in the
decriminalisation of homosexual relations. There is a change of mind and change of cultural
reviews. The point in the Dungeon case is that it makes no sense to punish homosexuality. But
this is not to say that the Court says immediately that sexual conduct is part of our article 8 and
therefore public authorities should stay away.
2. This is mirrored in the 1997 case. This is painfully recent. This is a preffered case by Paul
Lemmens. It’s the Lasket, Jaggard and Brown case. It’s about homosexual relations, in specific
kind of homosexual relations: SM-relations involving more than two persons. They were doing
their activiteits and you never know how people got to know this. Basicly these 3 man were
prosecued. They knew the Dudgeon case and then they go to the Strasbourg Court. They told
the Court: “You decided that sexual behaviour is covered by article 8. Since we were doing
these activity in private, with consent of everyone involved, what would be the argument to
prosecute us?” Is it a protection of morals? Then you get a whole discussion on wheter it is the
role of the Court to engage with morality. The Court wanted to escape the difficult discussions
by saying that in any event since the sanctions were limited the measure of the sanction was
not disproportionate, but then on the necessity in any event states may intervene to avoid
future harm. So the idea was that this time there were no serious accidents but who knows one
day it could be serious so they need the possibility to intervene.
An opinion of the French judge on the case: it was all about morality. He was talking about the
European Convention as an instrument to protect people in its hights forms and not in its lowest
forms. You can’t accept everything. The text makes clear that it was a serious discussion of
moral point of view turning into a legal discussion.
3. The Court had to deal with a new case in this area KI-case against Belgium. I will put it on
Toledo. Why is this case important? Since a movie has been made on that case: the SM-judge.
In the SM-judge case it’s all about a couple in which the woman wants to be the slave in the
SM-plays. The husband, the judge, was not so interested but drove her to the clubs. That was
not a problem until a certain day in the courtroom this judge is giving a judgement. One of the
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parties says that he knows the judge and knows what he is doing. They went to the same kind
of clubs. That’s were all of a sudden everyone knows that he is involved in SM-activities. It was
a serious case against this judge. He got fired. Then the case went to the Strasbourg Court: this
is a violation of article 8 the judge said. The Court in this case remembers Jaggard Brown. They
know there was a serious debate. They considered that they didn’t have to talk about morality.
The Court said: “You were involved in a SM-play. It’s a game of power and the most important
thing is that when you say stop, it stops, like judo or wrestling. The problem is that stop can be
a part of the game, you never know. Stop is not the word. They have to agree on a neutral term
that means stop for example apple. You have to be sober, you have to have control of yourself.
You were often drunk.” They avoided the discussion on SM-activiteits as such. Since we are
talking about serious severe pain, it is only possible if all the parties are totally in control of
theirselves. That’s why authorities can intervene. This was a very smart way to avoid the
discussion. Best case note ever on that case: Durasex set sex. That’s what sexual relations are.
4. Very difficult are notions and cases on abortion. A, B and C against Ireland. Three woman who
are all in some extend similar. They are irish. The Irish legislation at that time was extremely
strict on abortion. In the mean time they had a referendum to get a more liberal legislation.
Basically under the old rule, abortion was only excepted if the life of the wife was at risk. The
pressure seemed to be very high. You have three woman who travel to London or to the UK to
have an abortion and then they go back. In the three cases there are problems coming up. They
need extra help. They have to explain what happened. It is clear to everyone that they have
had an abortion. So they get sanctioned under the Irish law. So they bring their case to the
Strasbourg Court. They claim that the very strict Irish legislation at that time was a violation of
article 8. Obviously there was not a discussion of the legislation. Is there a legal basis? Yes, the
Irish Constitution. Is it a legitimate aim? It is about the protection of morals, they say that the
right of unborn life is an aspect of morality, so there is no problem. Is it proportionate? The
proportionality test once again is important. The Court comes up with the marge of
appreciation. These are very moral sensitive cases. Therefore is a wide marge of appreciation
needed. They got trapped in their own reason, because usually by an European consensus the
marge of appreciation is precisely not wide but very narrow. The Court has a look at abortion
legislation in Europe. There is an European consensus at abortion legislation. Therefore the
marge had to be very narrow. This is a case of 2010. That is the exactly the arrow in which the
Court came under severe criticism. What the Court does in a very smart move: it says it is not
because there is an European consensus that it follows automatically that no wider marge can
be given. Precisely because they say of the deep moral views of the Irisch population on
abortion issues. They came to the conclusion that there was no violation. In case of person C,
the court arrives a different conclusion. The case of person C holds a situation in which the
pregnancy was a serious risk to the woman her life. In between the theoretic possibility under
the Irish legislation to having an abortion and the defacto possibility to really have, there was a
disproportionate gap. It was a violation in case of person C. This is the abortion issue.
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5. There was also a case against Austria. I always found this one one of the most harsh cases in
the history of the Court. It’s about the possibility to have genetic children in Austria for a couple
whenever there is a problem with the partners in terms of fertility. We know that there are
medical techniques that can help people to help to get pregnant. Sometimes the problems with
the eggs or the sperm are so big that they need material from third parties. The Austrian
government forbade this. There was no possibility for a third party donation. The donation of
sperm was only permitted in case of invivo. Invitro was forbidden, invivo was allowed. They
mean to have this third party. In one case they needed sperm from a donor and in another case
they needed ova from a donor. It’s forbidden under the Austrian law. They brought their case
to the Strasbourg Court. How do we proceed this under article 8? Only the Court can decide if
this a matter is of positive obligations or negative obligations. There are arguments in both
ways. In the end the court decided to look at it in a negative point of view. Is this an
interference? Yes, there is an interference. Is there an interference according to the law? Yes,
there is an interference according to the Austrian law. Is there a legitimate aim? Yes, the Court
found there is a legitimate aim. What is the protection of health, morals and even rights of
others? Then the question is, is it proportioned? Here again the Court goes on using a wide
marge of appreciation. There is a lot of diversity in Europe, so each state can adopt their rules.
Some will be more strict than others. So given this wide marge we don’t see so much of a
problem in case of the first couple. Then you have discussions about the second couple where
there was a donation of an ova. Here again you feel that the Court even more accepts that
states do come up with a prohibition. The Court doesn’t find any violation given the wide marge
of appreciation. The female of the ova donation uses an argument that for women this
donation is more painful, it is not an easy intervention. You have to protect women where for
men it is not the most painful medical intervention we can imagine. It’s weird that the Court
says Austrian authorities were entitled to have this strict legisltaion but they should keep under
review the evolution of other countries. If on democratic grounds in a state legislation is passed
and even the Human Right Courts says that this legislation doesn’t violates the human rights,
then why would it matter that in other countries legislation changes? I have more and more
problems with this idea of European consensus. If you really think as a court that it is a violation,
it is a violation no matter what they do in Belgium, Italy, France etc. The Court says if they
change, you have to change as well. That’s one thing. The second thing I am shocked about is
that the Court said there are other countries where they could help you, this is basically inviting
people to commit fraude, you go there where your behaviour is allowed and then you come
back. So what are you going to do? Although this is a true fact, I think that if I were the Court, I
wouldn’t have made that point. Why do they say that? Then they say that 10 years after the
introduction of the complaint had been filed. Your child could had been 10 years old, but we
found a solution 10 years later. This is 10 years afterwards. This is extremely harsh. This is an
example of new cases where the Court is struggeling with. Under Protocol Number 16 there is
a new system of ruling: case coming from France from the Cour de Cassation on servicy. Servicy
is forbidden in France, but there are many cases in which a lot of couples go to Ukraïne. They
find a woman who will be pregnant and she hands over the child to the couple and the couple
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bring the child to france. What do you have to do? Do you have to consider the child? (protect
what Lemmens and the court are saying) Or other say are that people know what they do is
forbidden under their national law. They know that. They go abroad. If you respect the rule of
law then you’re punishing a child. If you don’t do that you are changing the law. It is clear to
everyone that your national rule forbade a behaviour that is illusional because you go abroad
and come back.
Les 12 (16/11)
Eerste uur
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We discussed private life. I hope to wrap it up, so we can start freedom of expression. We
finished studying some of the cases under private life, illustrating issues of negative obligations.
We finished appropriation techniques. I think it’s rather clear from the cases there, that the
court gives a wide marge of appreciation to states and this is in part due, obviously, to the
highly sensitive, ethical questions of the problem. Now, we can go further with other examples
of the negative cases and then we have a topic that every now and then pops up and that is
the issue of deportation.
Matter of removing persons
People can live in a country without having citizenship of that country. They can live there for
decades without it because it’s legally not possible or they don’t feel the need to become a
citizen of that country. And then, there may be a situations, usually whenever there is a
problem in terms of criminal convictions and so on, where the national state then decides that
the mere presence of the person on it’s territory is a problem in terms of public order and
therefor wants to remove the person from it’s territory. Then the question is whether this can
be done or not. This is a question, which we already discussed in little pieces under art. 3, where
the question is ‘Can we remove or expel people whenever there is a risk of ill-treatment?’ Here,
it’s not about the risk of ill-treatment but the point is simply that you remove people from the
context in which they have been for years, developing personal relations and probably family
life. Admittedly, in most cases, issues will rise under typically family life. But sometimes, it’s
really a matter of private life. Whether it is under family life or under private life, the question
is just ‘can we remove people?’ The court clearly says that the convention isn’t about dealing
with people having rights to stay somewhere or not. It’s not the issue of the convention or with
what the court is dealing with. States, according to the Strasbourg court, have the right to
decide who will have the right to enter or stay on their territories. However, there may be issues
when you want to remove people that have been developing personal of family life. Obviously,
what you will see again is that it’s a matter of proportionality. Usually, the issue won’t be
whether there is a problem on the law. Usually, there is a legal basis. Now, is there a legitimate
aim? States will say it’s a matter of public order, which as such is not really debatable. The
question is if it’s proportionate. There you see cases going in one direction and cases going in
another direction, whereby the court sometimes states: ‘This is perhaps too harsh.’. And
usually, and I hope you see the point here, the problem won’t be so much when it’s only a
single person, but when they have a family, children, etc. because it has impact on them as
well. Then, the case becomes even more complex. Ex.: if you remove a father from a territory,
his children are impacted as well. So, their family must also be taken into account. We have
cases where the court clearly said: “Listen, we think it’s going too far.” But then, the prof invites
us to read the next case:
1. Assem Hassan Ali v Denmark (23/10/2018): the court found out that the Danish authorities
could remove someone from its territory, although the person could claim he had personal and
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family relations in Denmark. You should also read the concurring opinions. Judge Lemmens is
one of the concurring persons and you can see that they struggle with the issue and with the
topic because they indicate that most probably, it’s more about a moral issue than a legal issue.
2. Somehow a similar case to the Belkacem case: he sentenced for terrorism. He caught people
to go and fight as foreign fighters for the IS. In the end, his Belgian nationality has been removed
and the Supreme Court found out that is was legal. We now have a person that hasn’t got the
Belgian nationality anymore. So, he’s only protected by his other nationality (Morocco). There
is a possibility that the procedure stopped and that Belgian authorities decided to remove him
from the Belgian territory. The question then would be, apart from issues under article 3, if he
can claim rights under article 8 because he’s married and has a family life. Then the question
will be: is it proportionate to send him to Morocco? Here, we can clearly see what is at stake.
Even if we indicate that there are legal possibilities and that if it’s found to be proportionate so
there is no problem, the real question is the moral question or question of politics: is it a smart
thing to do (= policy issue)? Is it also a fair thing to do? Because some of the judge say: listen, if
you, as a state, remove someone from your territory although the links between the person
and the country to which you send them to, are rather formal because e.g. they have not been
living there and have spent most of their time in your territory, but you remove them. It’s
possible, but is that morally okay? Is this fair? What you say to another state is basically ‘take
him or her back, good luck with it, it’s our problem but we don’t know what to do with it.’ Is
that a smart thing to do? This is not really a legal question, but a moral question.
This is an interesting topic for a paper, to see what the evolution of the court is in this kind of
cases. Hypotheses of professor (and it’s a mere guess because he hasn’t been studying it): the
court has become more lenient in recent times then previously. He guesses that they are not
immune for this kind of new security discourse that we have been listening to for some years
now. Maybe, they try to resist, but he’s quite sure they also give in. This would be typically the
case where you would say ‘once again, I don’t know this.’ This would be the case where you
would say has this come to the court ten years ago, they maybe would have said no, this is
disproportional, but now, in a changing context, maybe they would say we have to be more
lenient. Interesting topic people! So that was the matter of removing persons.
Processing of personal data
Another issue, which already hinted at yesterday, is of course a topical issue, which has been
topical for years now, is this processing of personal data.
1. Negative side of private life issues
Historical cases already came up in the 80s to the court. If the court delivers its judgment, you
realize it can be based on facts in the early 80.
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In Leander case (1987): a service man is working for Swedish army, he’s working in a museum
(not even the core of the army) on temporally basis, but he can’t get a permanent contract
because it appeared that, when he was younger, he was engaged in, he had been (!) a member
of the communist party. This information came to the knowledge of the secret services and
they informed the army. And although, he was already working for the army and there hadn’t
been any problems. Nevertheless, it was found there that there was no violation of article 8. In
terms of proportionality, you can really question whether this is a right way of dealing with a
question. Perhaps what was decisive here was that it was in army context and in an era where
the cold war still meant something. Now, we could say that this was an issue to forget. We
could say that we should make a distinction between someone who is still a member of a
communist party and someone who has been member of a communist party. The question
would be that, if someone had been a member, but in practice functions quite well without any
problem, can we then still go back to the past and let the past hunt the present? I’m just raising
the question.
I’m old enough to have known the wonderful days before social media. When my friends and I
were young, we had the enormous privilege of behaving stupidly. We can only recall it
ourselves. No one knows it and they master their past to a large extent. He thinks, in 20 years,
if we see each other again and discuss things, we Google it or find it on Facebook and can find
it online. The most wonderful thing about human beings is its capacity to forget things. There
is a wonderful book from a professor in literature (Harold Weinberg): “a human being as the
animal that forgets.” If you read it, you realize that one of the reasons why we can get along in
a society, is because we forget and forgetting goes beyond our will. We can’t ‘want to forget
things’, because each time you want to forget something, you recall is. The problem here is the
machines and computers never forget. We won’t know how this is going to be in the future.
E.g. you apply for a job. They can look up everything (e.g. a picture of you being drunk on the
streets). This shows how important data processing can be. It’s stupid to say: ‘if you don’t have
anything to hide, you don’t have to fear privacy.’ This is bullshit… Everyone has something to
hide. That’s what living in a society is all about. Society and civilization is based on the mere
things that we all hide things. Transparency is completely overrated and it’s dangerous. We
ignore civil war because we just want to be polite to each other. You don’t say to your neighbor
that they wear a horrible ugly dress, to be transparent. The right to be yourself is within private
premises (in your house, you family…). Once you enter the street, civilization comes in. Now,
we are all discovering how to deal with this in a digital world. One of the main problems is
precisely that those machines don’t forget so the law has to answer. This is where the idea of
the right to be forgotten developed. You can ask Google to delete things, but is that ideal? Is
that something that is completely proof? The prof doesn’t think so.
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We have some examples in EU law and in the case law of the convention. Think about
everything that is related to this. Belgian government wants fingerprints on the ID card. Why?
There is case law.
1. One of the landmark cases is Azan Markel v UK: there would be fingerprints and DNA-samples
taken of persons. An 11y old boy (S: minor) was arrested for an attempt of robbery. They took
his DNA-samples and fingerprints and then he’s acquitted. Now they have a huge database of
all this information. Years later, a man was arrested for harassment of his partner. He was
known in the system. The charges were discontinued. Both asked after the domestic procedure
to be removed from the database. In one case it was obvious, because the boy was acquitted.
In the other case, the charges were discontinued. There was not a criminal problem anymore.
The problem was that their fingerprints and DNA-samples were still with the authorities. The
police refused the removal. In the end, this comes to the Grand Chamber, to the Strasbourg
court. The question is: What about storage of this kind of information? Here, the court says, as
often, that it’s not excluded as such, so it does not outlaw this kind of collections but the court
says that it’s important that you can’t just do it for everything. You need a serious reason to do
that. The fight against crime is as such a legitimate aim but there are limits. The court says these
limits are: a) the person that should be accused of crimes of a certain seriousness, so you’re
not going to do that for a petit crime. That’s not the idea; b) you need/ can do that but you can
only have the storage for only a certain moment of time. There is a time limit idea. The problem
with the English law was that it was in terms of any offence and there was no fair balance when
it came to the time and limits and when it came to bringing things into account. The position
of whose samples had been taken and general interests. E.g. ID card: the court says in the Azan
Markle case, it must be crimes of a certain impact. In the Belgian idea, it’s not even about a
crime but about everyone giving their fingerprints. What is the time limit here? Is it 10 years
and when you renew it they do it again or as long as you live…? The prof has the impression
that under article 8, there are serious problems here. Public authorities can’t create such kind
of storages.
2. Gardel v France case: a rather similar question was submitted to the court. Here, it was
already difficult. It was a database for six offenders. It wasn’t about any crime but a certain
specific type of crime that was already materialized by French law. Secondly, it was only said
that this database could only be consulted by a certain category of police officers, not just by
everyone. Third, although theoretically the information could be stocked for 30 years, there
was a possibility given to the individuals to ask to be removed from it so there was a kind of
revision possible. The right to be removed was implemented. In this circumstance, the court
says that there is no problem and that the proportionality principle has been respected. The
prof thinks you need to read the two cases together to understand where we are. The Belgian
government would say: in Gardel, the court says that it could but others would say that in Azan
Markel, you couldn’t. It would be once again a story of proportionality.
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Is the personal lifestyle protected? Personal life has to be interpreted in a wide way. There are
cases where the court accepted rules that travelers (Roma-people) could complain when they
were hundred in moving around. The court was willing to pick it up because it was about
lifestyles of minority groups. This can be covered by article 8. See Pretty case: ending of life as
a matter of lifestyle can be discussed under art. 8. And there again, the court accepts that.
Sometimes there are complicated conflicts, not so much in terms of ethics but in terms of legal
principles, there is a case is 2004:
3. Fernandez Martinez v Spain: somehow a funny and very complicated case. It’s complicated
for the court. The prof would say that this is typically a case with: “damned if you do, damned
if you don’t.” What is the case about? A catholic priest: he’s teaching in a school. He fell in love
and married and had children. You can see what happens here. It was a bit weird because he
was a Roman Catholic teacher. All of a sudden, there is a local newspaper that writes about
that. All of a sudden, something that is known to some is revealed to many. Then it’s
scandalous, which is apparently also a notion in common law. The idea follows that: “we can’t
have a catholic priest who is married to teach religion so his contract is not renewed.” Here,
the teacher goes to labor court (= domestic procedure) but his violation of privacy is not taken
seriously. So, he ends up in Strasbourg because his rights of private life are not taken seriously.
But here comes the point: what should the court do? It’s difficult (damned if you do, damned
if you don’t). Suppose: the court says it’s private life, so he can do whatever he wants.
Apparently, everyone was happy with his teaching and his work. Is it then relevant in a labor
context what he does in his private life? The court could say that sanctioning this man was
disproportionate. But can you imagine what the reaction should be? Ex.: the court is not
respecting the separation of religion and state and that the court is not respecting freedom of
religion and the freedom of organization of catholic churches that can have their own rules. In
either way the court would always be subject to comments. So what should it do? Either way,
an amount of people would comment. Should it come as a surprise that this case is decided by
a 9-8 majority? You can see that the judges within the court itself are highly divided in the court
itself. They decided that there is no violation. The prof thinks there is serious criticism, which is
reflected within the fact that there is such a huge minority in the judges dissenting. And if you
read carefully through it, you can see what is at stake. On the one hand, there are judges
insisting on the right of churches, to define and organize a set of norms and principles according
to their beliefs. On the other hand, there are judges that follow the individual and say that the
individual matters most. In the Burqa case (which we saw yesterday), the question was if you
could wear the religions sign you wanted. This is a very controversial case. In the end 52% says
that there is no violation. You can see on which grounds they decided the case. It’s about the
marge of appreciation. What is controversial about this case: mainly living together does not
appear as such in the second paragraph of articles 8-10. The court granted themself another
way in interpreting this provision.
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Last point: here we are already making the bridge to freedom of expression issue. You can also
see that this privacy protection implies that you are protected against press and that press can’t
go too far in private life of citizens. Be it celebrities or just ordinary people. That’s a matter of
negative interference but you will see (and we will discuss it under article 10) that it’s also a
matter of positive protection. The court expects states having designed a framework in which
courts do balance the interests at stake. The Strasburg court has developed some elements,
which should be taken into account in this balancing exercise. Once again, you see that it’s not
that easy to make a distinction between negative and positive obligations. The conflict here is
that - in a way similar to the conflict of our married priest - whenever there is a conflict between
the press on the one hand and the persons who claim about a violation about their privacy or
reputation. Whatever outcome there is, it will always be about the matter of protecting and
under protecting rights. It’s always a zero win-lose thing, never a win-win. Either you protect
freedom of expression and people will complain about an under protected right of privacy or
either you are protecting privacy and people will complain about an under protection of
freedom of protection. You will always have people that will argue that both rights have to be
protected. But the prof doesn’t think this is true. There is no middle way where you say I have
been protecting both rights. You will find a result of a balancing exercise where you may hope
that you have been giving new wave to all interests at stake and that it leads to and outcome
where it protects more one right than one another. But pretending that that was not impacting
on the rights, the prof thinks, that that’s simply not true.
That was the negative aspect of the private life issues. The positive aspects about private life,
we will see it after the break.
Tweede uur
2. Positive aspect of private life
You all have heard of the famous/awful Dutroux case. That was our criminal number one. One
day he escapes from prison. He got stuck in the forest in the Ardennes, where they only see
deer, that’s it. And then you have this forest guard, who lives deep down in the woods, maybe
because he is the shyest person on earth and perhaps, he has chosen his profession because
he doesn’t like human contact. His deer are his friends. Exactly this guy stops our criminal
number one. Huge panic in Belgium - Brexit is just a small detail compared too Marc Dutroux
escaping prison - and then some hours afterwards: we got him. This person becomes a national
hero for some days. You can’t protest against that, even if you’re the shyest person in the world.
Your picture will be in newspapers and you will be on the news. You can’t protest that, you
can’t say: “privacy issues.” At that time, in that specific period of time, you are as if you were a
celebrity. It is only for a certain period in time. Should we now project the picture of the guy,
nobody would recognize him. So that is another important issue. You have 1) the nature of the
debate and 2) the person’s concern: who are we talking about? Are we talking about people
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that aspire to a higher protection of privacy or are we dealing with people that should, for a
period or definitely, accept lower standards? 3) Third point is the previous behaviours of the
persons. What the court doesn’t want to do is to deal with people that change their minds all
the time. It becomes very hard: one day you sell your privacy because you are a televisionreality star and the next day to say that your intimacy/your privacy is the highest value you
share. If you are Pommeline from Temptation Island it becomes very hard to say: “privacy,
privacy, privacy.” Even newspapers today would write: Pommeline has a new tattoo. Then a
question might arise: Could she still argue that this is a violation of her privacy? And here,
perhaps a criterion of her previous behaviour would be more likely to say: “well, you have been
sharing all your 500 other tattoos, so your last tattoo is perhaps not the thing that would be so
problematic”. Another criterion is the way the media/newspapers acted. Did they act in good
faith? That should be the basis. Did they get the information in a fair and in a way that is
admissible under the professional rules of ethics? If you have been using a drone that you used
to fly in the garden of some celebrity and pictured the person in the bathroom, we can hardly
say that it was in a good faith way of obtaining information. This is something to take into
account. But also, obviously to take into account is, and it is from another nature, what after all
was the sanction? Was it severe? Was it not severe? 4) Maybe the last point, obviously, in a
way it formulates previous points: what exactly was the content of the information and how
was it presented? Was it presented in a mutually, in a fair way? You can give information about
someone’s privacy in a respectful way, but it can also be done in a sensational way.
Here you have arguments that the court has given guidelines. That the Strasbourg Court gives
to national courts, and so now they know. Whenever they have to proceed to this balancing
exercise: they know how to tackle the balancing exercise. That is really useful. This idea of legal
framework, of guidelines, is also expressed in cases on punishments of sexual offenders. Where
the Court insist on having an effective legislation. To say: you as a country should have an
effective legal framework that allows victims to get their interests protected.
1. One of the most recent cases and one of the cases that illustrates quite well Is the case of
Söderman against Sweden. What is striking here is that the court was facing in a kind of way, a
legal ‘lacune’. It is about a family: a mother, daughter and a stepfather. At a certain moment in
time, they discover that the stepfather is filming the stepdaughter when she showers. This is
definitely a violation of her privacy. The problem with Swedish law seemed to be that there was
no effective remedy in terms of criminal law because the facts were not serious enough, in a
way, to qualify as a sexual assault. There they couldn’t use that, which was felt by the victim as
a serious problem. The stepfather was acquitted. He was accused of sexual molestation and
then he was acquitted? Obviously for the victim it was not a good message. Related to that on
technical terms, it becomes clear that as soon as the stepfather is acquitted from the criminal
accusation, the chances that a civil procedure can be effective are rather low. We all know “le
criminel tient le civil on état.” If you are acquitted, there was no crime, how reasonable would
it be to expect that bringing a civil case against the stepfather would have been effective? I
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mean it is all clear to you that the opposite wouldn’t have been a problem, if he murdered a
victim and then bringing a civil case for damages wouldn’t be a problem. But here it is the other
way around. Now it would be very complicated. The Court finds out that in this case these
particular facts were not covered, nor by an effective criminal law, nor by an effective civil
remedy. So, it says that there is a violation of article 8. It takes it here rather from a procedural
side: you have to change your legal framework, Sweden. At least make it possible that these
kinds of facts can be successfully brought to national court. For example, this is, in certain ways,
what Koen Geens has done with voyeurism. Now there is a criminal sanction on voyeurism.
Once again in the pre-social media times, it was of a completely different nature. It had a
different impact than today. Söderman makes it clear that states are under duty to have these
effective legal frameworks. That is an important topic and says something about the differences
in Europe.
2. It is the legal framework and the administrative practices whose serving transgenderism. As
I previously told you, there are many cases about trans genders. One of the questions that have
often been brought to the Court is the matter of changing your administrative status further to
a medical intervention. So, you have undergone an operation, you change sex. Then the point
is that it becomes offensive and painful that you’re still receiving documents referring to your
old sex. It has impacts on privacy and your social life, because your postman could come around
and starts talking. In the end the whole community is informed about things that maybe you
don’t want to. So, changing your administrative status is very important. What you see is that
the Court tackled the cases different. There were cases coming out from the UK and there the
court would say: “there is no violation of article 8”. But then you had cases coming up from
France. There the court would say; “it is a violation of article 8”. So, all of a sudden you had
case law were trans genders where their rights were secured if they were French but if they
were living in the UK, they would not have those rights. The argument of the Court made sense,
in a way: we all know the French. They have “l’administration”. Everything you do, you have to
declare, and they will act. The whole idea of the French, administrative organisation is that
whatever happens in your life: you go, and they act it. If something changes, they will change
it. If you get married, they act it; if you get divorced: they act it. Whereas the Brits they don’t
like this idea of a Central Information. The Court basically says: the Brits in terms of
administration they are more liberal (in which they actually mean messy). In the end for
transsexuals the liberal/Brits system give them their rights. Whereas the French they don’t get
their rights, because the French authorities can’t say, according to the Court: “we are not
equipped to change”. Because that is what they do all the time. In the end you get a case, a
Grand Chamber case, Christine Goodwinn where the court has to deal with a claim coming from
someone out of the UK. Here you really see that the court sees that it becomes impossible to
have those two different approaches. According to national administrative conditions. The
Court has to decide and they opt for the French system: if you change your sex, it follows that
you must be given the opportunity, even in Great Britain to alter your administrative status.
This is interesting because they changed their case law, that is to say, they extend one reading
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of the case law, and they give up another position in the case law. Interesting to see how they
justify that. And then comes in, and this is intriguing if you read about sexual orientation and
transgender and this kind of issues. It is intriguing to see how they did that. Because they say
there is a scientific consensus on transgenderism and that’s why we have to be more
protective. And here what is very intriguing, you can see in the case law that transgenderism is
presented as a medical issue/approached with a more neutral and objective attitude, whereas
homosexuality is much more approached from a moral point of view. The argument made is:
transgenderism is inspired by scientific views. It is intriguing to read that.
3. Last point: environmental protection. There you see, even those issues can be considered
under private life and family life. The Spanish case: Lopez Ostra. People were living next to a
factory of leather industry. They produced an enormous amount of waste. For the Court it is
important that there is a serious legal system dealing with this danger because the risks and
the consequences for the private lives of the people is important. You can see that you bring
environmental issues in a certain extend to the Court. Once again there are off course those
policy issues and that is what we have seen in the English Hatton case. About night flights in
Heathrow. You can say that night flights, the noise, nuisance of airports do have a serious
impact on the private life of people (you sleep less well, etc.). In a chamber case, the court
found that no fair balance has been struck between the public good (i.d. economic
development of London Heathrow) and the interests in terms of private life of the inhabitants.
But then, obviously, there was a lot of protest and people were extremely shock when they
read this case: because now the Court is really going to do in economic-social policy making.
Now they become politicians in disguise. So, the case went to the Grand Chamber and there
you can see that the Grand Chamber found that fair balance has been struck. Maybe those
judges think that they personally would come to a different finding but at least they considered
that in the balancing exercise all interests had been taken into account. As a result: no violation
of article 8.
Les 13 (22/11)
Eerste uur
Good afternoon, any questions on last class? All right, let’s move on. Last week we finished the
discussion on private life, privacy and I already indicated some of the conflicts that can arise
under article 8. Today I’m going to start the discussion on article 10. Article 10 includes the
protection on freedom of expression, freedom of speech. Freedom of expression is one of the
fundamental rights and usually if you would have a look into the literature you would find three
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categories of justifications that can explain why we consider freedom of expression to be such
a fundamental right and all three of them bring together or entail a kind of prompt reactions in
terms of limits, but I will explain that later.
So why would freedom of expression be so fundamental? First set of arguments is truth,
knowledge, university, the search for truth. How can we ever learn something about the world,
about society, about ourselves, about ideas, about whatever if there is not such a thing as
freedom of expression? The search for truth implies that people can launch ideas, statements
and that other people can react. It is the clash of ideas that gives us the right. I can give you
plenty of historic examples where as soon as we as societies or as states, governments,
religions, … forbid ideas to be expressed, we know that it comes with a price. And the price is a
lack of knowledge. Why is it that this idea that the earth was moving around the sun and not
the other way around, why is it that this was so obvious a thousand of years ago, why did they
see what they saw and why was het that we couldn’t see what we saw, well that is paradigmas.
It is not only a matter of paradigma’s, but it is also a matter of not allowing people to call into
question existing beliefs. That is why in the 19the century a British philosopher such as John
Stuart Mill in ‘On Liberty’ writes his famous chapter on freedom of expression by saying that if
we don’t know what the truth is and who of us would dare to say that he or she knows what
the truth is, now then said John Stuart Mill that it follows from that that we also can’t figure
out what is wrong or false either since I don’t know exactly what the truth is. I’m maybe
mistaken about what is false as well. And therefore, he says, even with my best intentions, if
I’m going to sanction ideas, if I’m going to forbid people to launch ideas to protect the audience
for false information, I’m paying a very bad service to knowledge.
So, if we want to gain knowledge, then we need to protect as much as possible the free debate.
That is ladies and gentlemen why academic speech in universities is so highly protected and
that is why certain tendencies that you may have come across in press or tendencies that are
present in some universities in the VS or in the UK on university as a save place where
people/students have to be protected against what they don’t want to hear. This is nonsense.
I’m not saying that trigger warnings are nonsense. I think that is a good thing because suppose
that I’m going to teach on torture and I’m going to project terrible images of tortured people
then I think that saying before ‘listen ladies and gentlemen maybe you are going to see shocking
images’ is not a menace of freedom of expression, not at all. So, warning people that is not
problematic at all, but what is problematic in terms of freedom of expression is this idea that
we can’t invite speakers or if we invite certain speakers they can only be if there is a critical
discussion and so on and so forth. That is nonsense. I mean there could be a hundred thousand
reasons not to be convinced by Theo Francken’s policy, but saying that he should not be invited
at university to explain his policy, that you shouldn’t give him the floor, why? Give him the floor.
How can we learn things if we don’t want to hear or invite certain people? So, a university
should not be a place where people feel intellectually safe, but it needs to be exactly the
opposite. A university should be a place where you constantly challenge yourself and you are
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all the time saying “ow I was thinking this but now I’m wondering whether this is true. You have
to be challenged all the time about your ideas, beliefs, values and so on and so forth and maybe
as a result you may be even more convinced about where you originally stood for or you
changed, I don’t care and this is also not the role of university. The role of university is not to
make you change your ideas, but to make you think about where you are convinced about and
that can only be done if we set the protecting of freedom of expression as high as possible. Let
us keep in mind that search for truth, search for knowledge implies that we can have a living
debate.
That comes up with another argument that we should consider. John Stuart Mill wanted also
something else. He says be careful because if we are sanctioning or forbidding our opinions,
the risk is that people lose their passion to stand up for what they believe in and then the ideas
become, and he calls it dead dogmas. Let’s take the example of death penalty (article 2). We
know that this penalty in Europe is forbidden. If someone comes up, launches the discussion
and says I am in favor of that penalty, there are two ways to take on the problem, to respond
to that argument. One argument, the typical lawyer’s argument, is to say that this is impossible
because treaty blablabla and protocol blablabla. Did we convince someone? Of course not, that
was not an answer in the debate, because it is a legal problem, because the very easy answer
is then: then change the treaty. We are so happy that we constitutionally or we let treaties
protect our moral position that we lose the capacity to defend them. It becomes a dead dogma
and this is how a lot of sociable debates these days, u see that a lot of people defend positions
that they lost the capacity to defend their moral positions or political views because they are
protected in treaties, because there is no need to defend them against real opposition. It fires
back and people lost their capacity to make their point. Can you convincingly defend your
position? Now the best thing to convincingly defend your position is to be challenged all the
time. It is the same in your daily life, because if you are all the time surrounded by your fans,
you never come to question your own positions. So you will be more greatful if you have for
example a partner who challenges you all the time. The worst thing that can happen is that
your ideas become law and you think that you have done your job and can do other things. You
are not paying a service to yourself. So, my message would be that you should love your
opponent more than your fans in intellectual debates, your critics are your best friends and
your fans are boring. So, the search for truth is an important argument and in a few cases states
would take the argument that the information is false as an argument to sanction ideas. There
are of course exceptions and they are pretty much contested, especially if you think of, and we
see that in the second class on freedom of expression, denialism, Holocaust denial, … this kind
of legislation. It is very controversial because there one would say that the state is doing what
freedom of expression says not to do, that is to say impose a truth on society. So, freedom of
expression as a means to come to know the truth and to have a living intellectual, political,
scientifical debate. This is a very important argument, but with some consequences such as the
high protection of academic speech.
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Second set of arguments, the kind of arguments that I suppose if you have a look at the
convention and the Strasbourg case law would be very important arguments and it is the socalled argument for democracy. Freedom of expression is the basis of democracy and it works
in two ways. Now, in the first place it is a fundamental right in our society, because if we want
legislators/politicians to take on problems and come up with solutions, we first need to
convince them that there is an issue. This can only be done through freedom of expression.
Without freedom of expression, without being able to voice our concerns about living in a
society, we do not have a functioning democracy. So full freedom of expression will feed the
political debate and we inform our politicians. We, all the people here, are living in a
representative democracy which means that the politicians, that you have elected, are acting
on your behalf and hopefully they do things you like. Usually it goes this way: you hear a bell
and they ask you to vote for them, then you never see them again and after 4-5 years they are
back there. You ask them if they did a good job and of course they say that they have, but how
can you know that? You vote for the people in the parliament but you can’t control them. You
can’t control if they did a great job. So, in a representative democracy: on the one hand we
have to check the representatives and have to know whether they are doing decent work and
at the same time, we can’t be there. So how are we going to know whether they are doing a
good job? Well the answer to that is because we have the press. Because the media are
supposed to inform us about politicians. Thanks to the media we know whether the people we
have elected are doing a decent job. That is very important. The argument of democracy is
fundamental in the case law of the court. You can see that here the risks are very high, because
governments, the people in power, would be obviously tended to intervene and to silence a
position rather than majority opinions. Here we are even going to try to have a debate as even
as possible by saying like it is not up to public authorities to intervene on a count of what has
been said. If we do that we end up by becoming a kind of Putin’s policy: “you are a fan, okay
you have freedom of expression”, but you are critical for me, well I have jails”. This is not the
kind of press/democracy we want to have. As soon as the case comes up and it is about the
political debate and there are interferences, these are red flags.
Third set of arguments: why is it important? That is of course because otherwise we can’t have
full personal autonomy if there is no freedom of expression. Freedom of expression that is also
about expressing who you are. The most individual expression of the most inner emotion that
is freedom of expression. Maybe this personal expression is just talking about football, chatting
about having beers, maybe the social value of what you are saying is completely non-existent.
This does not add anything at the public debate and it is not relevant at all. Yet I have the right
to say it and I must not obtain a permit that allows me to communicate like this. There can’t be
a kind of quality check, because that is in a way introducing censorship in disguise. Saying that
there must be a quality check that is saying that you are going to appoint someone, or a
commission, who must decide whether what people are saying, drawing, painting, expressing
whether this is of a sufficient quality to be allowed to be published. Would we accept that? I
wouldn’t, because this is obviously the best way, you can also give a blank check to the
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government by saying why don’t you just silence and censor the opponents to your policies
pretexting that it was a matter of space and quality. Can you imagine? Can you imagine that
you are Erdogan and you are saying “yes of course I have been forbidding some Kurdish
newspapers, but it was a matter of quality, a quality check and nothing to do with the content”.
We don’t have to be naïve because this idea of a quality check is dangerous. So yes, personal
autonomy is important and that is way as I told you previously already that we can have this
kind of behavior that we would perhaps not directly link to freedom of expression as such, but
the way you dress and so on and so forth can be considered as aspects of freedom of expression
precisely because they express your autonomy. So yes, freedom of expression I believe is an
important right and we have very good reasons to support this idea.
This is also what comes up in the European Convention on Human Rights, but contrary to for
example the Americans who have a constitution whereby its first amendment says “Congress
shall make no law abridging the freedom of speech or the freedom of press. They do seem to
say that there is an absolute freedom of expression. Now in America, they have a case law that
is extremely difficult to understand. Why is it? Because precisely because between saying that
you have an absolute freedom of expression and having one, there is a huge gap. I am not
aware of any legal system in de world where there is an absolute freedom of expression. What
you have are systems that are more or less restrictive, more or less liberal, but all of them will
struggle one day with, let’s say, the very hard cases like libel and slander. Some states will say:
well, you can’t limit freedom of expression to protect reputation and others will say shout it
back. What about privacy? Can we really say that the answer to privacy violations is shout it
back? What are we going to do with revealing a state secret and so on and so forth. Now in the
end you will always find cases where the reaction is okay but that is not really what we want
and that is why American case law is so complicated. That is why the European Convention on
Human Rights is in a way a much more realistic convention on freedom of expression. It knows
that in the end states will be tempted to intervene and may have good reasons to restrict
freedom of expression. So, the point for the convention is not to absolutely pretend that there
is an unlimited freedom of expression, because then you are getting troubles. The point is not
whether the restriction as such is acceptable, but the point is that we have to restrict the
restrictions and that is where you get under the three conditions a second paragraph: freedom
of speech, de first paragraph, is protecting, second paragraph: can be restricted and you know
the three conditions: if it is foresee by law, if it has a legitimate aim and if it is necessarily in a
democratic society. There is however and this is the limitation clause which you will also find in
the articles 8, 9 and 11. However there are two things particular about the limitation clause set
form by article 10 and that is that in the first place the convention indicates that with freedom
of expression comes duties and responsibilities. This idea is not a separate way of restricting
freedom of expression, it is not an independent argument that could be used by states in order
to avoid the three conditions of the restriction, but it gives you already an indication that the
drafters already were aware that in their view potentially, danger is perhaps a too strong word,
but impact of media. This idea that media can be a risk for the protection of the individual rights
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of citizens was already in the text. So, duties and responsibilities yes and this is reflected in the
fact that whenever the court deals with freedom of the press for example, it will say that
although it grants a wide protection to the media, it also thinks that media and press and
journalists are subjects to some duties and responsibilities. Their case will be that they have to
act in good faith. They have to use in good faith fair means of getting the information. They
need to respect professional ethics.
A second thing that is particular is that in article 10, first paragraph, where it is said that
everyone has the right to receive information and to spread information. First sentence says
“but all of this would not rule out the possibility for states to create monopolies in the sphere
of radio, television and cinema”. That is the 1950’s. So, for technical reasons and for economic
reasons the drafters did not on that point want the convention to be used against the state
monopolies in the sphere of radio and television. No private party would be able at that time
to come up with a convention and say “hey I have freedom of expression”. This means that if I
have the means I can start a private radio station. That is not allowed. The point is that gradually
and later under the sphere of European Union law all of this has changed and licenses in the
systems are still possible, but they have to fulfill the three conditions of the second paragraph.
So, to the extent that you need a license or a permit to operate a radio or television system
that is possible, but it is a restriction on freedom of expression. It is allowed but you, as a
government or as a state, you need to show that there is a legal basis for your license, it has a
legitimate aim and it is proportionate.
The last point I need to make here is that in a way, apart from this so-called paragraph under
the licensing system and on monopolies for radio, television and cinema, the article 10 is in a
way you could say technology neutral. If you compare article 10 to articles 19 and 25 of the
Belgian constitution you see a big difference. The Belgian constitution is clearly focused on the
nature of the technology used to communicate. The convention does, apart from this
monopoly system, not do that. However, the case law of the court does operate some
distinction. That is to say that if you read the cases of the court and whenever people are
complaining about the behavior of radio and television, and there is all in all not so much case
law available on new technologies on the internet, then you are going to see that the court
does make a difference and says that we know that radio and television may have a bigger
impact. So, the court may consider that precisely within the nature of the media that has been
used to voice criticism or to launch statements, it can consider that the impact of audiovisual
media is higher and therefore it calls for a tougher reaction from the side of the authorities
than classic print media like books, newspapers, journals, … so the court can make a distinction.
Is that clear?
Tweede uur
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In contrary to what you perhaps expect since freedom of expression is typically one of those:
always expect government under the duty to obtain and not do onverstaanbaar. There are also
positive obligations under and these positive obligations is what we are analysing later
onwards. It is a matter of defending. Journalism, the right of journalism, defends journalists
against, why do I do this? Because, only because I have to interact with the students. So I keep
on asking those questions, are there any Italians here? Ah thank you, you saved my reputation.
So there are Italian students. She knows: what is your name? Laura knows Roberto Saviano,
okey, now Roberto Saviano, and I think that many of you have heard, his name is one of.
Roberto Saviano is a young Italian writer and journalist and he was the the guide of that movie
and later on the television serie. This is like a Mafia-stort, it is the really hard stuff in Napels.
Obviously what happens if you are a journalist, if you are a writer and you are revealing the
secret stories of the onverstaanbaar, then there is a price on you. So this is, this poor young
man is for years under protection of the state and can you imagine that? Someone who writes
a lot but he has no more social life, because he is living like somewhere three days and then he
has to move because no one has the right to know where he is living. Can you imagine that you
are living and you can’t tell your friends to meet you in your place? I can tell you where I was
staying two weeks ago but my place now I can’t tell you. And he has to do that all the time. He
travels from secret place to secret place, because he is persecuted by the mafia. Now the Italian
authorities are under a positive obligation to protect this writer. That is a matter of article 2,
basically it is a matter of article 10: freedom of expression. Who would still dare to write things,
to publish things, that are extremely important to social life and public interest. If you have to
fear for your life, few people are heroes. Maybe you are but I am not. You read it in Italian
newspapers, Roberto saviano did a stupid thing that we are paying for his protection. You have
special forces, I mean to provide his shelter and I think we all know by know that the Italian
budget, I mean, It is not that they have plenty of money, now we are all paying for someone
who perfectly knows what the consequences were. This typically argument charly hebdo, that
they knew that this would happen. Is this the same as Roberto? Okey you could say that he
would expect this, so you shouldn’t have been doing that. It is in the interest of the public of
our right. We protect those people and this is a positive obligation and we can see other positive
obligatons, obligations in therms of that there is a kind of, having a framework that protects
whistleblows. Maybe having a framework that allows for an access to public information,
maybe wa also have to protect, and that would be a positive obligation. Maybe we also have
to protect people of a sect of what they have been saying. Obviously positive obligations will
be more difficult to assess.
Let’s turn to the hardcore of the topic, the negative obligation. The not-interference, and here
of the main issues is the right to protect the reputation. And you can see that the right to
reputation is as a legitimate aim of the second paragraph. Basically the court has read into
article 8 also the right of protection of reputation. So you see how to criticize HR. for those
who are interested in the marrakech decision. You can hear and see a kind of an effect. An issue
in the fundamental reputation is not a right. It was a protected interest, but it was not a
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fundamental right. So reputation has been upgraded so. But if you have a look at the cases
under article 10, protection for reputation as a legitimate, you see that one of the first cases in
the field still is a case: 8 of July 1986. It is a case against Austria and it is a case called Lingens v.
Austria. The Lingens-case is famous for something, 2 things, maybe 3. In Lingens there is a
discussion, we have to go back in politics in Austria in the eighties. Now what you have, you
have elections and then there are negotiations on coalision. And in the eighties in Austria, there
was a high-conservative trend. If you google kurt Waldheim, you get some information to
understand the general content. The anxious of the second World War. Now, the point is, that
after the elections in Austria Bruno Kreisky. Are there any Austrians? Yes, so correct me if I am
wrong. Bruno Kreisky was a kind of counselor. He was trying to negotiate a coallission with a
party and in that party there were some people who were on the wrong side. There is politics,
so in the press and some of the journalists, there are a little bit surprised to see that someone
coming from a family with a Holocaust tragedy is not negotiating. And so there is a lot of
critisicm on Kreisky for that. One of the journalists, some of them were saying that he is a nazi.
But obviously Kreisky is not a nazi. And there is a journal: an idiot instead of a nazi. You get a
Journalist, Lingens, saying that Kreisky is an idiot. Very outspoken in a very negative way. So the
Austrian Court, language was excessive. So kreisky wins the case in Austria. Now I must say and
I never understood why there is a problem with.. many of the cases in the court in Austria are
about freedom of expression. Freedom of expression is often Austria. The case comes to the
Strasbourg court: hold on. The court says that we have to make a distinction between
statements of facts and value statements. And because this is about statements of facts can
be onverstaanbaar. If you accuse people of having done something and you can’t prove that,
you have a serious problem. But says the court, here, calling a politician immediately. That is
not a statement of facts, but that is a value judgement. Value judgements, yes by definition
there are not open to prove. But we can expect them to have a factual bases. So if you go to a
restaurant and you write a review about a restaurant, when you say the food is crap, that is a
value judgement but you van expect at least, suppose that you say, you went to the Alma and
it was crap. Then the Alma brings a case against you, 5 years I have been knowing that, each
day. Gained 15 kilos, all the time French fries and then that awful koninginnenhapje. Maybe
crap is not the most academic term, we expect someone with a kuleuven degree. But there is
a factual statement. But suppose now that you knowing exactly the same because you don’t
like that Alma. So you decide to write a review on Alma 2 and you said roasted tofu.
There is a factual statement. Suppose that they serve roasted tofu in alma, so you decide to
write a review on alma and you complain about tofu and stuff. You say it was crap and then
they say ‘have you ever actually tried it?’ There you have a problem, because your value
judgement has no factual basis. But here they say: maybe we do not agree with the analysis
that Bruno Claes is an idiot. But at least the facts, the reason why this journalist thought or saw
this as something not to do, there are objective facts that can justify that someone despises
this behaviour. So first very important point: distinction between facts and value judgements.
Second point why linges is very important, the court says: even in value judgements one can
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perhaps expect people to have some sense of civilisation. But The court says this is political
speech, this is about criticizing politicians. This is about the core of the press in a democratic
society. Expressing, informing people about the behaviour of politicians. Now admittedly the
court says: idiot is a little bit of a harsh expression, but what would be the problem? It is that if
we would be to strict on the admissibility on the terminology used by people criticizing
politicians we would be creating a chilling effect. People would be afraid and abstain from
criticism. And so in the end out of fear of sanctions journalist may not express their views and
this would be a serious risk for the public debate. So precisely because we want the political
debate to be free at least we do not want the media to be afraid of sanctions by courts because
they were a bit to harsh. Maybe for that reason we should say to politicians: you are a politician
and therefore you should accept that there is a higher standard and harsher and more severe
language being used against you that for ordinary citizens. If you read the 1st comments for that
case many of them were very severe for the court. They said that the court now had lowered
the standard of decency. The court has now accepted that pub talk is now protected under the
convention. Some of them said you have to be almost a masochist. Anyway Because we are
talking about Austria I can refer here to … google that on your private time. So yes maybe we
are now asking to much of our politicians. I have some colleagues that were in politics and soon
retired from it and when I ask them why they always say because you can’t imagine the
psychological cost of reading the news or social media and not the fact that you are criticized
for your ideas and opinions, but the way you are criticized. But that is the price of freedom of
expression in a democratic society. Now the court is perhaps not completely coherent. I always
like to contrast the Lingens case. It is one of the 100 most important cases of the court. I
contrast to an other (not so well known) Austrian case the Wabl case. It is an outlier in the
system. I am not convinced that the court itself is all that happy with this decision. Now the
Wabl case is the other way around from the Linges case. In the Linges case it is an activist
journalist criticizing a politician and they say: the politician has to accept very strong language.
Whereas in the Wabl case it is the other way around. Now Andreas Wabl is a green politician.
In Austria there is an American military basis in Graz. And everyone knows what people like to
do when they see an American basis. The go and shout “Yanks go home, Yanks go home”.
Especially when you are a green politician you are born to criticize America. So there is a
demonstration and as always a demonstration can’t be fun without some minimum level of
physical contact. So what happens is that you have this demonstration and the polizei and they
have a fight. But then comes the point: you have this police officer who gives an interview to
the press. He says “now my life is over” and the press asks why. He says: because it was a fight
with those hippies and I have been bitten. Is this a big problem? The fact that you were bitten
by a politician. ‘It is not that I was bitten by a politician it is the fact that I was bitten by a green
politician you know what this means serious risk of aids’. So mister Wabl is completely and
rightfully so very upset and he gives a press conference and denies everything. And then he
says this is Nazi journalism. And mister Wabl gets sentenced by the domestic courts for that
comment. So he goes to the court and he claims freedom of expression. And everyone would
have expected the court to say: well this is in a public debate and with heated emotions and so
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on. But the court says: this is Austria and we know that the term Nazi is difficult there. And so
all the arguments that can be used in favour of freedom of expression are used against it. And
in the end they say under the margin of appreciation the Austrian courts could sanction mister
Wabl. Now here my point is: I have a problem, because if we are saying to politicians you should
accept and expect very severe criticism on your behaviours. Whenever you do the same we can
say come one you are a politician and you need to behave. So here I really think that when
reading the two judgements together we must reflect as a society if we are doing a good job
for ourselves. Because in the end the only kind of personalities that will be ready for politics,
will be these kind of Teflon politicians. Those politicians that are like ducks You know water
slides right of them. So people without a normal level of sensitivity. So I think that the court
missed here an opportunity to consider the flipside of the coin. It is very easy to tell politicians
that they should accept a lot. But maybe the same should be true for journalists. So this is the
Lingens-case and it’s a leading case in freedom of expression. When it comes to attacks on
reputation.
The second Important category of cases where the court delivered some major judgements are
the cases concerning the disclosure of confidential information. To be clear the court is not the
kind of tribunal that would pay no attention to confidentiality. Once again it is a legitimate claim
and the court understands that information should and can be kept confidential. However
confidentiality is sometimes used to easily. So one of the important cases is Goodwin. And I am
not talking about Christine Goodwin (the transgender case), but I am talking about William
Goodwin. He was an English engineer and he was doing an internship at a professional business
magazine. And he got information that there is a company in serious financial trouble. And he
gets the business plan that is aimed at saving the company. The company learns that there is a
journalist who has a copy of the business plan. They say they only have one or two copies going
around. So this is really extremely confidential information. They say listen If you reveal this
than everything is lost.
Listen, if you reveal this within, say a week, then everything is lost because this plan can only
work, you are the guys who do financial law, you understand how important business plans
and financials plans can be to companies that are almost bankrupt. But this guy says: I have
freedom of expression and I should not be responsible for the fact that you aren’t capable of
keeping your information confidential. So then you get this company and it goes to the English
court and they obtain that the information cannot be published by the journalist. Now not
publishing the information, that is in violation and interference with freedom of expression and
the freedom of speech. So, ultimately, in the end, Bill Goodwin, William Goodwin goes to
Strasbourg and here the Court comes up with the idea that in article 10, there is a freedom or
right to protect your sources, because that is what was asked in the domestic procedures. They
said to Goodwin: “Could you tell us, who did you get this information from?”. He would say:
“journalistic privilege”. He refused to give the name. The Strasbourg court said that the
journalistic privilege is a professional duty, but their right to protect their sources is protected
by article 10 and this was very important, since in many countries, there were problems with
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journalists being send to jail or being put under high pressure to reveal their sources and
usually, it was not because the public authorities wanted to be nasty to the journalists but it
was because in their internal criminal proceedings, they got stuck. I want to prove something
and I don’t have the documents or the information I need. And then there is a journalist
publishing the information that I need. And If he or she would just be so kind as to tell me
something more, I could, as a prosecutor, further my prosecution. It would go swifter and
better. With that, we have quite some cases where journalists simply refuse. Prosecutors would
then say that you were stealing the information and the journalists would be accused of theft
or, I don’t know how to say it in English but in French it’s called recel, that you yourself did not
steal the documents but you are accused of keeping them at your place, to hide them from
public authorities in the hopes of making the information seem to disappear. The court here
says: “Why is the protection of journalist sources so important?” Because it is the guarantee of
the free flow of information. There can’t be any social society or public debate, when people
who are willing to talk, don’( have the guarantee that the persons to who they confess aren’t
protected. Suppose, and I’m taking another famous Belgian example, the Bende van Nijvel.
Suppose you know something about them and you go and talk to a journalist and you tell him
or her: “Now look, it has been 25 years that you have been looking for the giant, but in reality
it was not a giant, it was a small persons using stilts, and I know who it is”. Now suppose the
journalist reveals his source. Now all of a sudden, you are n big trouble. All of a sudden,
everyone knows against to who they have to organize revenge. Would you in another case,
would you still be willing to confess to a journalist, knowing that he will reveal you? I wouldn’t!
And that is what the Court said. It is not only about the individual journalist in an individual
case, it is about the general trust of the public in the press. If the public sees that confessions
made to journalists are not kept secret wherever there was a need to, then, in the next case
people just simply won’t talk. What will be the result? The loss of public debate. And that is why
freedom of expression, it brings about the protection about journalist sources.
You also see there was another case, very important, on confidentiality, it is a more recent case.
It is about Goya against Moldavia and here you have this case about whistleblowers. Because
basically what you get is someone who informs the press about irregularities in criminal
procedures by saying: “I see that the head of the prosecution, or people who have a high place
in the hierarchy, aren’t doing their jobs as they should. And I think that the public needs to be
informed”. And then, obviously, this person is sanctioned under Moldavian law and then it goes
to the Court. Goya is dismissed, he was fired because of what he revealed although it was
correct information. The Court picks up this whistleblower case. It is a very difficult case to
judge. If you take position as a civil servant, for example in the prosecution section, you know
that you will get to know information that should be kept confidential and states should be able
to trust in the fact that you will kept this information confidential. Having said this, The court
can’t make an absolute. It is to say, states should not take profit out of that to violate the law.
Saying no one would be able to denounce this, no one will be able to complain about it, because
by doing so, it would already be a breach of the obligation to keep the information secret. So
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the Court says: “we can accept whistleblowing, but obviously there have to be conditions. The
first thing is that you have to act in good faith. You really have to act without pursuing individual
interest. Suppose a colleague of yours runs away with your wife and now you want revenge.
That is not the idea, the idea is that you have an interest, a public interest, you want to
denounce that in good faith. You want to communicate it to the people because they have a
right to know. Another point is that they expect you to use the appropriate internal
mechanisms. You are not just going to denounce something without first have tried the internal
mechanism. That is, in a way, whistleblowing can only be accepted, when you have proved or
that it is beyond reasonable doubt that the ordinary mechanisms won’t work. The Court will
look at the sort of information that is revealed. It will take into account the damage public
authorities can suffer, with its linked to the behavior of these authorities and it will look at the
severity of the sanctions that are imposed. And in this case, it came to the conclusion that the
sanction, the dismissal of the person, was disproportional and that there was a violation of the
freedom of expression. This shows you that whistleblowing, per se, is not necessarily a
violation. It can be protected under article 10. But since it depends on so many factors, it
remains a risky business. My advice to you would be that a regulatory framework should be
adopted or discussed because it remains a very uncertain position. Because you would not have
any protection if the Court had ruled otherwise. It depended on the severity of the sanction. I
think that those of you that would ever be in a situation where they have to ring a bell, where
they have to warn and inform people, you should be aware that you are taking a serious risk!
Any Questions?
Les 14 (23/11)
Eerste uur
Today I'd like to discuss with you the prohibition of torture and other cruel treatments. It's a
prohibition that toy will find in Art 3 of the EU Convention HR. And I hope that we will get
through the whole theme, which will not be easy because there is a lot to be said.
1. SCOPE OF APPLICATION
Let me immediately start with the first point in the outline. That is the scope of application of
Art 3. Or in other words, what is meant with the prohibition of torture and other inhumane or
degrading treatments. You could also use the word 'cruel' treatment. 'Inhumane or degrading'
is something that comes from the American constitution.
So what you should do from the very beginning, is that you have two sets of terms. Inhume and
degrading treatments and punishments on one hand, and torture on the other hand. In fact,
the relationship between the two is as follows. Any inhuman or degrading treatment is a
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treatment or punishment is a treatment prohibited by Art 3. Torture is a specific form of such
a treatment. Torture is an inhuman or degrading treatment or punishment plus. And we are
going to see what is the difference between the two notions. Between the general notion and
the specific one.
a. Cruel, inhuman or degrading treatment or punishment
So let's start with the general notion of inhuman or degrading treatment or punishment. There
is no definition of this term in any treatment. Not in the EU convention of HR, nor in any other
treaty. But from the very beginning, the ECHR says in its case law that not every treatment is
an inhume or depraving treatment. There is a minimum level of severity that is required before
we can speak of a treatment that is prohibited under Art 3.
What is the minimum level of severity, the threshold of severity? It's difficult to say, it depends
on a lot of factors. In the case law of the EU court, we have a number of cases related to Art 3
in the cases and materials. You will see that the EU court always mentions a number of factors
such as the intensity of the treatment, the age of the victim, the gender of the victim etc. It
really depends on the circumstances.
It's not always necessary to distinguish between inhumane or degrading punishment or
treatment. But sometimes the court gives indications. Inhuman treatment or punishment is, for
instance, a treatment that has inflicted bodily injuries or intense physical and mental suffering.
In principle, an inhuman treatment is a treatment that you feel. You feel the effect, it hurts.
Physical pain or mental pain. Degrading treatment or punishment is a treatment that humiliates
or |, it affects the person in his or her own dignity. For that reason, it also arouses or may arouse
feelings of fear, anguish or inferiority in the individual. You are subject to a treatment in which
you don't feel well, not at all. You are feeling less human. So it's not necessarily something that
is associated with a lot of pain. Physical or moral pain. That is the difference between inhuman
and degrading treatment. You can even be subject of degrading treatment, without the person
objecting you to that treatment having the intention to humiliate you. The treatment is there,
you are humiliated in your eyes only, not in the eyes of others. So it's a treatment that is
prohibited under Art 3. I should also add that sometimes a mere threat of ill-treatment, can in
itself constitute a prohibited ill-treatment. Imagine that someone is in front of a police officer,
and the police officer says - and this is what actually happened in one case, the case GÄFGEN
V. GERMANY - listen you are going to tell me what you know, otherwise my colleague is going
to enter the room. I have been very friendly to you, but my colleague will not. He knows how
to inflict very heavy pain. So you have the choice, you have two minutes to reflect. And in that
case, the person reflected and said no oké I will tell you everything I know. This was a threat of
a very serious ill-treatment. So the court said this is in itself an ill-treatment.
b. Torture
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What is torture? When does an ill-treatment amount to torture? Torture - as I said - is an
aggravated form of inhuman or degrading treatment or punishment. Now you may ask yourself
- a question for lawyers - why should we bother? If it's all an inhuman or degrading treatment,
and if even the inhumane or degrading treatment is prohibited, why are we even discussing
whether it is also torture? Well, take a step back as a lawyer and think as a non-lawyer. To say
that a state is guilty of torture is a much more serious accusation than saying that a state is
'simply' guilty of inhuman or degrading treatment. So the word torture has in itself a particularly
stigmatizing connotation. And you see immediately that when applicants start to invoke the
notion of torture, that governments at all costs want to avoid that they are being held
accountable of a violation of a prohibition of torture. That is a non-legal argument. There is also
a legal argument. It is not so important under the EU convention of HR, but there is a UN
convention against torture. And that convention attaches specific legal consequences to
torture, which it doesn't attach to inhuman treatment. Perhaps through interpretation, you can
extend it, but the drafter of the convention wanted to reserve certain consequences to torture.
For instance, the obligation to either prosecute the person accused of torture or to extradite
him to a country where he can be prosecuted. That is one legal consequence attached to
torture.
What is now the difference between the two? 10:11 Well, in the case law of the EU Court there
had been a clear development. There is an old case, a very well known old case.IRELAND V. THE
UK. An inter-state case about ill-treatment of people northern Ireland by the British army. And
the Republic of Ireland took up the case before the Court of HR arguing that what the Britsh
army had done, constitutes not only ill-treatment but also torture. There were so-called five
techniques that were used to in order intimidate, in order to extract confessions from poor
citizens. In itself, these techniques were not so painful. Kept for a number of hours without
sleep, kept for a number of hours without food. And they were standing the whole time against
the wall, which was not so pleasant. And that's why the EU court said well, this is not a sufficiënt
and serious harm that is done to the victims. This is not torture. And the EU Court was criticized
at the time very much for having the idea of torture of the past centuries. That is as soon as
people are screaming from pain and screaming for help, then it is torture, but not if it is
something less.
After this case, within the UN states were working on the UN convention against torture. And
that convention was adopted in 1984. If you read Art 1 par 1 of the convention, you will see
that the drafters of the convention adopted a different approach towards torture. Torture can
be or includes severe pain or suffering. Not very severe, not the worst that you can imagine.
But more than simply the threshold of inhuman and degrading. But what is more important,
the emphasis lies on the corpus of the ill-treatment. Was it done with a certain purpose? Was
the ill-treatment done for example to punish someone, or to intimidate, or to obtain
information? The aim of the ill-treatment is a very important aspect in this UN Covenant. And
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so we were in 1984, the question immediately arose: What is the EU Court going to do? Is it
going to stick to this old-fashioned view on what torture is, or will it adopt the more modern
view and attach the notion of torture to the aim of the ill-treatment? And indeed in one of the
cases that are in your materials, SELMOUNI V. FRANCE and we will come back to that later, the
court changed its view. This was an ill-treatment inflicted on a suspect who was in the police
station. And ill-treatment was inflicted by the police officers with the clear intention of
obtaining information from the suspect. he was involved in drug trafficking and the police
wanted to solve this case quickly. This means, give us all the facts so that we can have a good
file that we can send to the prosecutor. And the prosecutor goes to the court. So this guy must
be convicted, but we need the information. And so the acts that were performed on the
suspect. Because among other things, the fact that this was done with a purpose, besides the
fact that they weren't also very human this let to the conclusion of the EU Court that this was
torture. And the court said we have to follow this UN view, we are going to change our case
law and it may well be that some acts that in the past were not considered torture, could now
be torture.
If you analyze the case law, the only situation where you could imagine that maybe now the
court should say this was torture, was the case of Ireland v. the UK. Why am I saying this?
Because there is been a very interesting development with respect to the Ireland v. UK case.
This was something that was not really dealt with in a very good way in Northern-Ireland. The
whole situation of troubles in Northern Ireland, they are still problematic in the mind of the
people. And so at a certain moment, there were arguments saying that we should bring this
case back to the EU Court. Because we want to hear from the EU Court that this was torture.
We are not happy anymore with the mere qualification of inhuman or degrading treatment.
And so Ireland asked for a revision of this judgment. And last year the court had to examine this
request for revision. It was a very sensitive issue if the court would accept it. After a long
reflection, the court refused to revise its original judgment saying: there are absolutely no new
facts, the fact are the same, there is not something new that you have come up with. The case
law has changed but the case law is not a new fact which allows us to revise our earlier
judgment. But I think we can say that we know that if we compare other cases to the Ireland v.
the UK that if the case would be examined now, it would probably be torture.
2. SCOPE OF PROTECTION
a. Negative obligation
1. Absolute prohibition
Oké let me now turn to the second point, there are three points in total. The second point is
the scope of protection. What is the scope of protection? What protection do people have under
Art 3 of the EU Convention? Prohibition of inhuman or degrading treatment and sometimes
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torture. What are the corresponding obligations for the States? Let me start with the negative
obligation. The obligation not to do certain things. One thing that must be stressed here, and
note this very well, because this is an exceptional thing. The first point, we are really near an
absolute prohibition. For most other fundamental rights the Conventions says that there can
be no interference, but if certain conditions are fulfilled then there is no violation. It's a relative
prohibition. Here for Art 3 and for all the corresponding articles in other HR treaties - it's a
common understanding under all bodies of these treaties - the prohibition of ill-treatment is
absolute. There can be no justification for ill-treatment allowing for inhuman or degrading
treatment. Not, for instance, the conduct of the person is important, even a terrorist is still a
human being and should not be subject to ill-treatment. Not the purpose, even if you really
want to obtain information from someone, under the law it's not possible to use techniques
that amount to inhuman or degrading to get that information. The USA government under the
Bush administration were not convinced of that. The legal advisors they said we can have strong
interrogation techniques. They never said that they would use torture, but what they did was
very often torture. This is a problem, this is not the way we do it in Europe, this is not the way
we do it under any other international HR treaty. And I know, sometimes people say yeah but
the ticking bomb scenario. The big moral issue. You know something is going to happen, you
know what and where there is going to be a terror. You have the person in front of you who
has all the information to stop it. can't you use then techniques like torture to get that
information and save the lives of others? That's a good moral question. Unfortunately, in real
life, it doesn't really happen that often. These are extremely exceptional cases and it's difficult
to build a whole argument in these exceptional cases. But if it happens then yes there is a
problem, it would not be the first time that the law conflicts with morals. But so the legal
principle is that there is no exception, no room for ill-treatment that is prohibited under Art
3. It means for instance that you should never speak of any margin of appreciation with respect
to the prohibition of torture. There is no margin, there are no choices. Absolute prohibition.
2. State responsibility for ill-treatment
The second point in the outline is about the state responsibility for ill-treatment. I'm going to
get into this. It is sometimes a bit difficult to say whether or not the state is responsible for
what has happened. This is a matter of proof. but I'm going to get into the details of this.
3. Examples of ill-treatment
a. Ill-treatment by police and security forces
Let me turn to some examples of ill-treatment. All taken from the case law of the EU Court. And
I will concentrate on those who are in your cases and materials. First of all, ill-treatment by
police and security forces.
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We start with the case of SELMOUNI V FRANCE. Which is in your outlines. In this case, the EU
Court found that the police applied methods that constituted torture.
FACTS - Mr. Selmouni lived in the Netherlands and was found with drugs. And at that time there
was an intense discrepancy between the Netherlands and France as far as the fight against
drugs. the Netherlands were more tolerant and the French were very strict. So every time
someone came from the Netherlands with drugs, they needed a very harsh reaction in France
to show that this is not the way that it is done here. So this guy comes from the Netherlands
and is put into police custody during 3 days, during which he is extensively questioned by police
officers. Later on, he complains that he has been subjected to various forms of ill-treatment.
He has been hit and received a large number of serious blows over the whole body. This is, in
fact, the most important part. Then he was forced to kneel down in front of a young woman,
an officer urinated over him, also a humiliating part. And he was also threatened with words.
He had other allegations but these were not accepted by the court.
LOCAL REMEDIES - Also an issue here about the reaction of the French authorities on what the
police officers had done. Because the man had complained to the authorities about what
happened. Nothing really happened, until the case was really moving before the EU Court of
HR. Suddenly the French authorities realized hmm this is more serious than we thought and
started to prosecute the 4 officers involved, who were later found guilty and sentenced or
suspended. Here you see by the way the very beneficial effect of merely filing a complaint to
the EU Court, it can awaken national authorities. Something we thought was not so serious,
now seems to be serious.
DECISION EU COURT HR - What did the EU Court say here about the treatment? It said that a
very general principle applies anytime when somebody is in the hands of the public authorities.
Like someone who is in preventive detention or is in prison or whatever. And he enters that
place as a healthy person, without any injuries, but he comes out of that place with indications
that he received blows or whatever. You go immediately to a doctor who then writes what he
has seen. By the way, when you ever are in that situation, don't forget to go immediately to the
doctor and get the medical report as soon as possible. And so then the Court compares it, you
were in good health before you entered, and now you are a miserable wrack when you come
out of that place; In such a situation where the injuries are proven by the applicant, it needs for
the government to provide a plausible explanation. Explain what happened, explain why this
has happened, explain why excessive violence has been used. It is very important for that the
authorities do what they have to do in so far what the investigation of the facts is concerned.
But I will come back to that later. Here, in this case, the Court found that the authorities were
not able to give a plausible explanation. they found that the ill-treatment was sufficiently
serious to constitute inhuman and degrading treatment and as I said, because of the intention
and severity of the harm done, it also amounted to torture. The word was out: torture by the
French police. This was something that at that time they couldn't imagine. In the meantime the
police forces I think from almost all the states of the Council of EU have been found from time
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to time to have applied torture to certain suspects. It's unfortunately not so exceptional.
Although most of the time, it is inhuman or degrading treatments.
Another case is the case of EL MASRI V. FORMER YUGOSLAV REPUBLIC OF MACEDONIA.
FACTS - It is one of the most serious HR violations of the decade. We are dealing here with a
case of a secret rendition by an EU State to the CIA, the American authorities. All in secret,
there is an arrangement but no transparency. What happens with that person is that he is flown
away to somewhere and is interrogated there at the time in the American way with a lot of
techniques they use in Guantanamo. There are several places like that in Europe, not that many,
but enough to constitute a real problem. For many years there was nothing done about it. El
Masri was one of the persons who tried to get the ball rolling because it was a mistake to
capture him. He had nothing to do with terrorism, it was a mistake on the side of the Americans.
What had happened? El Masri was someone of Lebanese origin but he is German. He is
traveling through Europe and is crossing the border of Macedonia and is taken off the bus by
Macedonian security people and is brought to a hotel. There they start interrogating him. What
are your links to terrorism? Terrorism? What are you accusing me of, I don't have to do anything
with that? We know you have a lot of links with Al Qaida. And so on and so forth, checking a lot
of things about him, probably thinking he was another person. He stayed there for three weeks
in the hotel, guarded by the security services of Macedonia. Guarded by the security services
of Macedonia. Not in a prison, but in a hotel. And then after three weeks, they still had no
information. So other means had to be used and El Masri was taken to the airport where a
private jet was waiting. A jet used by the CIA, only for him. Where he was beaten by people he
didn't know. He was undressed, laughed at. He was unconscious about what happens, he was
thrown into the plain and then flown away for many hours. And he said in the beginning that
he came out of the plain and it was much warmer, but he didn't know where he was. Later on,
he was able to reconstruct what had happened and it appeared that he was in Kabul,
Afghanistan. There were serious interrogations with ill-treatment. But they didn't get any useful
information out of him. In the end, the Americans could have thought of killing him, getting rid
of him but that is not what they did. They put him back on the plane, flew him to Europe and
dropped him somewhere in a forest in Albania. Mr. El Masri was able to get to Germany on his
own. He said that he was for about 4 to 5 months in the hands of the CIA.
LOCAL REMEDIES - In the beginning, the people in Germany didn't believe in his story. Huh taken
away? We have never heard of that. El Masri also complained to the Macedonian authorities,
to the public prosecutor. The public prosecutor immediately realized that it was far beyond her
capabilities. She contacted the minister of the interior, who said: We have reports that are very
different from the guy is saying. There is no evidence of what has happened. We cannot confirm
this. So the public prosecutor, after a very short investigation, relying only on the reports said
no evidence so I'm closing the case.
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EU INVESTIGATION - I'm telling you something about El Masri but in fact, there are many cases
like EL MASRI. But I told you, it was al very secret and in the beginning not very much was known
about it. It is, in fact, thanks to the parliamentary assembly of the council of EU that a lot of
details became known. normally that's not the role of a politically organized parliamentary
assembly, but within the assembly, there was one Swiss senator Marty. He had been a
prosecutor and became very very interested in this case. So he asked for an investigation by
the parliamentary assembly, which later was also followed by an investigation by the EU
Parliament which has much more powers to ask information from states. Of course, not all MS
wanted to coöperate. But how they found what had happened was, it's a bit of a thriller, is with
the help of people who are spotting planes. They are on the ground and see planes coming and
note the number of the planes. And then they are very happy when they see two weeks later
the same plane again. So they were able in that way of reconstruction the whole web of flights
by the CIA. Picking people up and dropping others. All never registered. These flights are all in
secret. This is just a non-legal thing that I'm telling you if you want some thriller material. There
is a movie about it, you should watch it.
DECISION OF THE EU COURT HR - So here what did the EU Court in this case finds? First of all I
come back to the that later with respect to the procedural obligation to investigate. The Court
found that this is very ridiculous, there was no investigation while this is a very serious case.
The prosecutor should have investigated what had happened. Simply closing the books after
receiving a message from the Ministry of the interior that everything is okay, is not an effective
investigation. In this case, the EU Court said this is not only important to avoid the impunity of
those who are responsible. But here it also stressed the importance of the investigation for the
so-called right to the truth. Not only a right of the victim El Masri, but also a right of the public
in general. The right to know what happened. Because the Macedonian government was
involved. There was a responsibility on the Macedonian part. They had coöperated, maybe they
were in a very weak position vis-a-vis the US, all that is possible. But the public has the right to
know what had happened. Turning then to the substantive aspect, that's what we are dealing
with now. The prohibition of ill-treatment. The EU Court said as far as the treatment in
Macedonia is concerned. We have first the treatment in the hotel, that was inhuman and
degrading treatment. holding someone in a hotel room, guarded by a security agent,
threatened by a gun. Inhuman and degrading treatment. Then coming to what had happened
at the airport. There was really an ill-treatment. Violence that had been used, and also on the
plane violence had been used. The Court said this was done by foreign agents, the CIA, but
nevertheless within the jurisdiction of Macedonia and Macedonian agents being present and
knowing very well what was going on. So Macedonia is also responsible for what had happened.
And because this was ill-treatment of a sufficiently serious nature plus ill-treatment with the
aim of obtaining information, the punishment of the individual, intimidation of the individual.
Because of this purpose behind the ill-treatment, the Court concluded that this was torture.
There is also another aspect here. That is the responsibility of Macedonia with respect to the
removal of El Masri to somewhere else. And now we know that he was ill-treated there. But at
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that moment the Court found that the Macedonians knew already that something amounting
to ill-treatment could happen to El Masri if he was put on the plane of the CIA. So a real risk of
ill-treatment which indeed was materialized afterward. At that moment the Macedonians could
not know what would happen in the future. But the real risk is enough for having the
responsibility of Macedonia. So this was another violation of Art 3 of the Convention. I
recommend this case for reading, it shows why HR are very important. This is an exceptional
case, but it shows what States are willing or able to do when there is no control. No control by
Courts, not by American courts, not by Macedonian Courts. Fortunately, the EU Court was able
to do it.
I would like to end with the last example with this series of cases related to ill-treatment by
public authorities. BOUYID V. BELGIUM. Of an entirely different nature.
FACTS - It is about two young boys of around 18 years in one of the municipalities in Brussels,
who had a very difficult relationship with the police. They were provoking the police. They were
doing certain things and asked to come to the police office and make a declaration. Their
conduct was described in general, it was a mere provocation. And it had an effect because the
two boys were interrogated on different moments, with a month in between even. But both of
them received a slap in the face from an officer who lost his patience. I don't know how the
interrogation happened, but it ended with a slap. The two brothers were so smart and went
directly to the doctor who stated that there was an indication of violence.
LOCAL REMEDIES - They put a complaint to the Belgian authorities. But they didn't take the case
very seriously.
DECISION EU COURT HR - Then they went to the EU Court of HR. And the EU Court, in fact,
applying the standard of zero tolerance for violence as far as the police are concerned. EXEPT to
the extent that the use of violence is necessary because of the conduct of the individual. Not
because you lose your patience, but when there is a need to capture someone or when
someone is becoming aggressive in the police station, then you can use violence to calm that
person down. But this was not present in the case. And so the grand chamber of the EU Court
found that in this case there had been an inhuman and degrading treatment. A violation of Art
3. It was at that time a very controversial case. I should tell you what was my opinion, we were
three judges who dissented. We found that it was a rather harsh application of Art 3 and that
it was perhaps under the threshold of severity that was needed for Art 3. But the Court was
very clear, zero tolerance. Even if it was just a slap by the police. This is police violence, this is
not something we should expect of police authorities in a Council of EU Member State. Of
course, you have to read this in the context of what is happening more in other countries where
indeed the police are very quickly using violence. Where there is no provocation. So it was very
difficult to make an exception for something here with respect to this Brussels situation when
you see the almost weekly findings of violations with respect to police violence in other
countries. It is an EU standard that is laid down. I don't say that police violence must be
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tolerated. The majority of us Stated that we do not think that this is acceptable conduct but in
our opinion, it was not enough to constitute a violation of Art 3. Not every ... is a violation of
HR, not every tolerance is a violation of HR. That was the difference between the majority and
us.
Tweede uur
I have a number of other examples. The second example relates to the vulnerable persons in
need of a special protection, hereby referring to another case against Belgium, the case MSS
vs. Belgium and Greece. This is a well-known case. I was yesterday and this morning at the
conference with national judges about migration cases and refugee-cases, together with
judges of the European Court of Justice and the European Court of Human Rights. A most
interesting conference. Now explained by legal professors and judges: what are actually the
real problems from a legal point of view to talk about migration? It's not always the same
problems as exposed in the media, it is a big difference. Not because it is in the media, that it
is a real problem. That is a big and an important difference. Sometimes the problem isn't a real
problem. For the legal part there are other problems.
The MSS-case offers was mentioned at that conference, because it was one of the first cases, a
major case with migration issues, of the sort that we have now. Where the European court set
some standards, dealing with migration issues.
What was this case about? Well, the applicant, Mr. MSS was someone who had left Afghanistan
and went through Greece and entered Europe. He was identified in Greece, he was registered
in Greece and normally there he had to wait for a decision on his asylum application. But he
didn't want to wait in Greece, I don't know how long he should have been waiting there, but as
others he didn't want to stay in Greece, so he continued his way to Europe, and at a certain
moment he arrived in Belgium, where he was also identified and where the authorities realised
this was a person who have been already in Greece. Greece, the first European country that he
had come to, and so under the so called 'Dublin Regulation' (regulation about), the Greek
authorities were responsible for examining the asylum request. And the Belgian authorities put
mr. MSS on a plane to Greece, under this European regulation. Knowing that at that time, the
situation of asylum requests in Greece was very very ..., for reasons that I will explain, because
what happened as soon as mr. MSS was back in Greece? The authorities said "Ok, we know
now that you are here, we know that you already filed an application, but you will have to wait
until we are able to examine this application. This is something that we cannot do immediately,
there are many applicants at that moment right now in Greece" and in the mean time they let
mr. MSS for what he was, and mr. MSS slept in parks, on the streets, he was not in any reception
centre while he was waiting on a decision on his asylum application.
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Not a criminal, someone who has asked for international protection in Greece and who
normally under the rules of the EU was entitled to a minimum care, which was not given and
in the end, he also left again, he left Greece for another country. I don't know which.
The court started to examine the complaint of mr. MSS related to art. 3, from the point of view
of his treatment in Greece. And it analysed the leading and the facts of the case. It underlined
this legal obligation under EU-law and domestic Greek law of the authorities: take care in a sort
of way of mr. MSS. Was not done, not at all. Not taking care of in any structure. It just ignored
people for some months, and mr. MSS was able to show that during this period he wasn't given
anything what the Court describes as extreme poverty, no attention at all being paid by the
Greek authorities. And in the meantime also no progress in the examination of his asylum
request in Greece.
All that being taken together, the court found that the Greek authorities had not treated mr.
MSS with what Europe dignity would require. And therefore he found that the Greek authorities
had violated the prohibition on art. 3 of the European convention/of the treaty. And after he
found that, the court returned to the situation of Belgium and it found that Belgium, by sending
mr.MSS back to Greece while the Belgian authorities had any other possibility and while Belgian
authority was well aware of how the asylums were treated in Greece, that that was putting mr.
MSS in a situation of real risk of being ill treated in Greece, so therefore Belgium was
responsible too for what would later possibly happened in Greece. So for Belgium too, there
was a violation of art. 3 of the European convention.
This is a case where the European court insisted very much on the vulnerable situation of
asylum seekers in general and in particular vulnerable situation of this asylum seeker, which
was left beyond by any means in Greece. He was in fact, he didn't get the document to travel,
not able to work. He was left there completely on his own. Not any attention being paid by the
Greek authorities.
One could say that this was about the positive obligation to take care of an individual. But the
court preferred to look at this more from the point of view of prohibition of ill treatment. The
negative obligation. Knowing that you're leading a person like that on the street, is in fact
inflicted on that person, which is not what can be expected from a state that has ratified the
European convention. This was an extreme case. This is not at all about the level of care the
person should receive when a person has filed a request for asylum, etc. It was zero care given
to mr. MSS. Zero of what is acceptable of care.
Then we come to the point of the living conditions of persons deprived of their liberty. This is
also a category of cases that comes daily before the European court, repeatedly and down
judgements in discare. Most of the time it is about people in prisons. And there is not really a
case about that in your material, it's why I'd like to mention two cases relating to this.
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1. One is against Belgium: WD vs. Belgium. A judgement had to be done on the 6th of
September 2016. Which is about the detention of a person who have committed a criminal
act, but who was found irresponsible for this act because he had a disorder. And in that
case in Belgium, like many other cases, such people because they are a danger, are placed
somewhere in detention, with the idea that they can get psychiatric care etc. In Belgium
they call this the internment, for people with mental disorders. What was the problem? For
many decades these people were sent to prisons, to psychiatric wing of a prison. And that's
where they stayed and nothing really happened there. No specific care. They were not freed
like the other prisoners because they aren't normal. But most of the time they were simply
waiting in their cell for what could happen. If you ever have the possibility to say "nein nein
nein", decline like the Flemish director, you should do that. It is interesting documentary.
Not much happens, and that's exactly the message that she wants to show. She built up,
for I think 2 years, a relation with a number of these people. And they are sitting in their
cell, doing nothing, asking themselves what they are doing. They are scared. You go see a
doctor, do you think you ever get out? I don't know. What can you do here? I don't know
 they were kind of forgotten. There is one line in the documentary that was interesting:
"I can only help them by calling the European Court of Human Rights". And indeed, at one
moment, a lawyer started to file complaints, first with Belgian courts and then later with
ECHR about this treatment, or better said this lack of treatment. It was a problem not being
taking care of. The court found that this was a degrading treatment. Placing people in an
institution that's absolutely not good for their mental situation, in prison... It also found that
their detention, because of their mentally situation, they were not convicted for having
committed a crime, but were sent to the prison where they were under this regime. That's
not the same as being convicted. That's the reason of deprivation of liberty, but the court
said: is here another reason for deprivation of liberty. It is for people with a disorder, but
that can only be a legal deprivation of liberty if the consequences are attached to this
treatment. These are sick people and sick people need to be treated. If there is no
treatment, then the basis of deprivation of liberty is not legal.
Now why am I mentioning in particular WD vs. Belgium? This is because in that case the
court started a pilot-judgement procedure. It's the first time that pilot-judgement
procedure was started against Belgium, and the only time. Which means that the court
noted that it wasn't an individual problem. They were many many other applicants. And
they come before the court so the court noted that this was a structural problem related
to the situation in Belgium. They said "we are going to give the Belgian state two years to
solve the problem". In the mean time, we put all similar cases in the refrigerator. We are
not going to examine them, we'll see later what to do with these cases. Maybe there is a
solution for this. And already at the time where the European court lanced the judgement,
Belgian started with some things. The current minister of justice is probably the first one to
pay attention to the situation of this people. He said from the beginning he wanted to do
something to their situation. With the support also of his colleagues in the government,
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they build a number of psychiatric centres. These people are no longer in need to be in
prison, but in a secure environment, some of them are very dangerous but they are treated.
And if I heard well, last week, figures were given instead of thousand people in prisons, they
are now about 400 still in prisons and they want to have none of them in prison (they want
this as result).
What the ECHR is going to do at the end of the year or in a year? For the pilot-judgements,
will they come to an end? I don't know, we will see what will happen. But that is not the
main point I wanted to make.
2. Another and last case, with respect to prison conditions, is a Grand Chamber judgement of
the 20st of October 2016 in the case of Mursic vs. Croatia. It's a case where there is a need
to deal with the problem of overcrowding in prison cells. That is very frequent problem. Is
often, at least one of the problems that are being raised by prisoners complaint before the
ECHR. And the European court set a sort of standard when you are with various people in
a cell. The standard for this, for not becoming in ... treatment is that each has at least 3
square meters. If it is below 3 square meters, the government will need very strong reasons
to justify that. For example: a very short period of time. Can be an exception. If below, it is
a violation of art. 3. If it is between 3 and 4 square meter, then it depends on the
circumstances: whether or not it will constitute a violation of art. 3. And when it's more
than 4 square meters, the European court says that it normally shouldn't be a problem
under art. 3. Maybe for other reasons: privacy, smoking in the cell, etc.
So this is somewhat exceptional way to deal with cases, but it is because of the need of
legal certainty.
I've come to the death penalty.
In European you have the Söring case: how much have been written about this, I recommend
you to Google somewhat. To find out what exactly happened to this young man: Jens Söring, a
German who his life was pending for many years in an American cell. Last year a story about
the whole case of Söring, not about the European Rights aspect, but about the case itself. The
background is very simple: Jens Söring was a student. A law student in American university.
Went to American university and fell in love with an American girl and clearly, I should be
careful with what I'm thinking because I don't know exactly what the facts were, but let us say
that clearly there was a problem between the parents of the girl and the relationship between
the two. And at one moment the two parents are killed, murdered. And the American
authorities had always said that mr. Jens was the murderer. And the whole documentary is
about whether or not he really was the murderer. And he speaks himself, now he is in his 50's
and he speaks about it, explains why he confessed, that it didn't make sense that it was to
protect his girlfriend at the time. The biggest mistake that I made in my life. Everything
indicated that I couldn't have done it. But in the mean time, he is still there.
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The problem and discussion is about his responsibility. He fled to Europe, spent months in
Europe and at that given moment they were arrested in London. And there was a request of
the American authorities to extradite the two to the US, to have trial there en being sentenced
in the US. The girl did not make a lot of problems out of this and he accepted to be trialled by
an American jury. She was quiet quickly sent to the US, she made an arrangement with the
prosecutor, she received a very long sentence, she's still in jail. She's somewhat out of the
picture now. But mr. Söring contested his extradition. Arguing that if he was sent to the US, he
would run the risk of the death penalty. Now, the death penalty is something that is explicitly
accepted in art. 2 European Convention. Since the European Convention there are two
protocols who are dealing with the abolition of the death penalty in all European countries,
under some circumstances (e.g. war). But later one, even more strict protocol prohibited the
death penalty in any circumstances. Even in times of war.
It was not yet so clear: what is the place of the death penalty now? One of this protocols says
this, the other one that. The ECHR found it difficult to say that the risk of the death penalty
would be something sufficient not to be extradited to another country. Because the death
penalty was still on the books in the European Convention itself. So what did the ECHR do? Let's
look at the surrounding circumstances of the death penalty. There are a number of things who
make if a person is waiting for the death penalty, it can takes decades. And the treatment that
the person is then taking, is all context, constitutes in European treatment. So the Court said if
the UK would extradite mr. Söring to the US, we sought assurances from the US authorities that
this situation that we are describing would not happen, it would constitute a violation of art. 3.
So this was for the first time a potential violation of the article, it had not yet taken place. Söring
was still in the UK, but the court said "If you do extradite, without fulfilling the conditions of
such an extradition, this case needs assurances. If not respected, there would be a violation of
art. 3". I think that later on, after the judgement, the British authorities did indeed get certain
assurances and so mr. Söring was also sent to the US. He wasn't trialled, was found guilty and
was sentenced for a lifelong sentence. But not the death penalty. It's the first time that the
European Court said that effects of a domestic, decision-making, which are taking place outside
the countries of the EU, may be taken into account to assess whether or not the European state
is responsible for violation of HR. This was an extradition case.
There have been other cases where persons also sent to other countries but not because of a
traditional procedure. Not in an extradition-frame, but more in an expulsion situation. To what
extend can a State decide "we are going to send you home to your country, or send you to
another country". Deportation or expulsion. Situation with migration problem. Asylum request
is rejected and then you receive an order to leave the country. The principal is indeed that the
states have the competence to do that. the European Convention does not prohibit expulsions,
but there might be situations where HR come into play. And because of the absolute character
of art. 3 the rule is that you cannot expel the person without examining whether there would
be a real risk for that person being subjected to danger in another country.
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That can be in treatment or relates to the security of that person. Because the person is going
to be ill treated by the authorities of the other country. Persons involved in terrorism activities
and there are some countries where someone is suspected of being terrorist, they are
subjected to torture and other inhuman treatment. That's a problem:
- On one hand: European states cannot expel this person because of the real risk of
ill treatment that this person is going to run.
- On the other hand: they won't fight you in your own country. So it's a dilemma.
Creates political problems in the country and is the reason why in some countries there are
criticism against the ECHR, against UK. Because there are a few persons in this type of
situations.
If you are interested in this area, a case that is not mentioned in your books, is following case:
23rd of August 2016. JK and others vs. Sweden: is a case in which the Grand Chambre put all the
principles applying to that situation together. Distinguished: what is the task? How far can the
control of the ECHR go? What should be examined? The assessment of the risk? Very much
discussed. People come and say that they have the risk to being ill treated, to be prosecuted by
the authorities when they will go back to their own country. There is no proof of that. They
usually have no proof or evidence at all. no witnesses can confirm what they have said about
past experiences. Domestic competent authorities have to decide whether to assess, whether
there is a real risk. There are techniques to do that, to check if they are at risk. Asylum is
consistent. Also use external expertise who will confirm or contradict what the asylum seeker
say. It remains a very difficult issue. The story of an asylum seeker and on the other hand also
deciding to assess: what is the situation in the other country? How do we know what the
situation is in Irac or in Syria? They are looking for judgements: what is the authority, what
would best describe the current situation in a country. Someone from Afghanistan is going to
claim that if he have to go back, he'll have the risk to be killed, but how do we know if there is
such a risk? What is the normal treatment of a person in this situation? We have to distinguish
and put categories: e.g. homosexuals, Christian people, etc.
It's a very difficult situation to make that assessment: is a hell of a job.
Sexual violence:
I'm speaking here of a negative obligation, the prohibition by state agents in cases where sexual
violence is used as a weapon. Raping of women is an harm, (not) a legal harm, used during
wars. ID vs. Turkey it was said the conflict using that harm, used as torture. Found that this was
inhuman and degraded treatment, but here we went a step further and said: this is torture.
Killing of minors and children: I'm not going to say a lot about that but persons who are
specifically vulnerable situations because of their age. So they have to be treated accordingly
by the states. They cannot be treated differently as they were adults. The case of Vivo vs. UK is
about a young person who had, at the time when he was 6 or 7 yo, killed a young boy and was
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put on trial. Question was the mere effect of this person being put on trial, a young child, does
that constitute inhuman or degrading treatment? The Court said "don't do that, if there are
certain guaranties guarantied for the wellbeing of that young boy". In the end we concluded
that it was the worst official guaranties, and there was a violation of the treatment.
Let me turn now to the positive obligation of the state to the prohibition of ill treatment. There
is a first positive obligation:
1. Obligation of prevent such ... of ill treatment: this is indeed very often with respect of HR. It
is the first task in the public authorities: take action so this will no longer happen. That
means in the first place legislate, we are dealing here with serious violations of HR, so in
these situations, the European Court, most of the time would require legislation as primary
law. So if you don't follow the rules, can be held criminally liable, not simply civilly! That is
for the cases of negligence also, where is the intention of ill treatment, civilly liability is not
enough, criminal is needed, required. In many, if not all systems, you have now provisions
making in agreement of torture and trial. So the expectation is also that when such act
occurs/have taken place, that the law is put in motion. To show that it is not only something
on paper. To show the deterrent effect exists also in reality. Show that you take these legal
provisions seriously. And sometimes you have problems, that something goes wrong with
the authorities, trying or not trying to enforce the legal provisions. To give you an example:
A vs. UK was about violence within the family. It was about a stepfather who had beaten
the child. Person realised there was something wrong with the child, then the child started
to talk and the police heard him. Brought stepfather before a jury and the defence of the
stepfather was "what did I do wrong, this is a difficult boy so sometimes I have to give him
a beat" and the jury acquitted and then the ECHR found out.
In spite of all the facts, acquitting such a person indicates that there is something wrong
with the legal system. A good question by this decisions. If it is about deterring effect, can
you blame the state for the decision of the jury?
MC vs. Bulgaria is another case like that: is about a so called date-rape, young girl going out
with two young men and ends up with a sexual act that according to the young girl is a rape
and related to two boys was consensual sex. Very metoo-case. What happened here?
Parents filed a complaint, prosecutor did some investigation, interrogated the boys. Took
all the facts in front of him and then said "if I'm going to bring this case before the criminal
court, I'm going to lose this case. Because there is here no indication of violence, no
indication of resistance by the girl, I'm sure the court is going to acquit the defence and
then we are even worse off, so I prefer not to take any action" and the ECHR examined this
case and in fact criticised view of prosecutor on rape: this is very old fashioned point of view
thinking that rape depends on violence and resistance by the victim. That is not rape, there
are other circumstances in which there are real and serious interferences with a physical
and moral integrity, which you can call rape. This will constitute rape, even without
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violence. Because you think it's not covered by the law, then there is a problem with your
law.
2. Sometimes more is required, sometimes really preventive operations are required. Majors
to protect individual against possible harm that can be done to that individual.
The example that is mentioned in the outline, that is also in cases and materials: Opus
against Turkey: about domestic violence. A wife and husband, wife complaints after certain
time, her mother too. And the insufficient acting of the police to protect this woman,
quickly result in a drama: the mother is killed and the wife is seriously injured. So also the
right to life is under art. 3  prevailing.
3. There is also a procedural obligation, I mentioned that already when I was handling the
Elmasy case with you: a serious incant, when there is something the authorities know that
something has happened due to ill treatment, they have an obligation to find out what has
happened; establish the facts; identifies who is responsible: if possible to prosecute them,
and if they are found guilty, to convict them in a way that is proportion to what have been
done (proportion taken into account). All that in order to set examples and to avoid any
appearance of impunity.
We are dealing very often with those cases with ineffective investigation. ECHR has set
criteria over the years, an outline the authorities have to act under all motion (wouldn't
have to wait till the complaint, very often there is a complain, but even if there is no
complaint the authorities know of, you should act). Secondly the investigation has to be
effective; must be adequate: means all has be done to find out what has happened to
establish the responsibilities (this is a matter of police work: collect evidence, etc.).
The independence of those who are investigating, very often the problems arise when there
is an accusation that ill treatment has been inflicted by a police officer  surprise: the
police officer is the same police officer, so it is not really/very independent. Conclusion:
nothing has happened, so this is not the good effect of investigation.
Also a degree of transparency and not secret: the victim and public should be informed by
what is going on, especially the victim itself. And finally also requirement of promptness
and reasonable expedition. What goes often wrong? Is that an investigation was started
and on a higher level of prosecution, the trial, it took so long that in the end, the statute of
years goes into force, and we lose liability. That was it for the investigation.
I refer to the Elmasri case, you can find there the principles and in some of the other cases
as well.
I would like to end with a short third point about prevention. It is good to have a provision
that prohibits the treatments. It is even better to prevent such things to happen.
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And at European level and United Nations level there are treaties that try to instore a
mechanism that prevents ill treatment in place where persons are deprived of their liberty.
These are persons who are in a very vulnerable position when it comes to protection against
such treatment. In the European system it is the European convention for prevention of
torture and more treatment of punishment, called ICID. The community of the prevention
of torture and punishment is called CPD, and that CPD regularly visits places of detention.
Prisons, places where mentally ill persons are detained, centres where migrants are
detained, police stations. They announce that they are going to visit the given country.
Every country has to and will be visited during a cycle of years. They announce that they
come and everything will be prepared. But they don’t say where they want to go, they
decide when they are in the country. Announce when they are here. Well, what do they
do? Prisons in the morning, is the best moment for the prisoners, and police stations during
the evenings, when drunks are in, fighting with each other etc. They will see what happens.
They publish their reports, they discuss them with the government of the country observed
and it is than the government takes the necessary action. All along this is going to be a quiet
effective system. It is not about complaint, it’s for the European Court. This is the preventive
system. See what’s happening and then report to the governors. The Belgian Government
has been already regularly the subject of a report by the Community of the prevention of
torture and these reports are usually very very critical about the states of prisons in
Belgium. They also had special report on the effects of the strike, years ago, of the
personnel within the prison. Question about the minimum service that has to be
guaranteed. And if you read that report, you’ll see to what effects this strike had for the
prisoners. This is one of the political discussions now. CPD is expecting measures.
Ok, I’ll leave it with that.
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Les 15 (29/11)
Eerste uur
Okay good afternoon, so last week paul lemmens lectured on article 3 and he finished that
chapter. So this means we have to go back to last Thursday were we started to discuss freedom
of expression.
I don’t know If you have any more questions on this first lecture, this first class of freedom of
expression? Everything was clear? Okay than we continue.
So we discussed essentially the reasons why freedom of expression is so important in the
democratic society. And we ellaborated a little bit on that and I think that now we have to move
on an go into the case law. These kind of cases are perhaps the most important one, given the
fact that more speech is important to a democratic society, so that is to say political speech,
the more it will be protected by the court. That is to say the more the court will be reluctant to
accept interferences. Because precisely in the field of political speech there is a huge risk that
governments, public authorities, intervene to silence the oposition. That is basiccaly the issue.
We want to have a democratic society, but a democratic society is a society where people can
disagree with governors and look at it and apply strict scrunity.
We discussed the Lincolns case, that was already a first indication and now you can see that we
have plenty of other cases coming back in the courts case law on the freedom of expression of
politicians. And in many cases the mere fact that a politician is involved will already be an
indiciation to us to understand that a high protection will be given.
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Obviously, and that is the whole debate and we will come back to that later, the problem is not
so much discussions on, I would say, normal political issues. If a politician is delevering a speech,
is writing a leaflet, defending an obvious point of view from his point of view, so let’s say a
political point of view, and that public authorities intervene, we have a problem. This luckily
doesn’t happen that much, although things have change in the recent times. For example, and
this is one of the cases as well mentioned in the outline, think about the Hungarian BAKA case:
this case is not so much about a politician who takes the fall but it is a case that is heavily related
to politican discussion in the broad side of the world.
BAKA was a Hungarian, he was even a former judge in the European court of Human Rights and
then he took a very high position in the Hungarian judicion. But with the Orban reforms he
takes the fall and he critisises new legislation. Baka is not a politician in that case but critizing
as a legal expert, critizing new legislation on the judiciary, that is ofcourse speech that should
be highly protected. That is about our instutions, that is why we have a democracy. Now what
happens is that Baka gets sanctioned, it is because of new rules on judges so it’s not at first
sight so obvious. It’s not that they say because this and this we fire you. It’s a strange
coincidence that you get critisizm on Baka and some weeks later there is a new legislation that
says oh you should retire. You feel that something goes wrong there right? And so there the
Strasbourg Court found there was an issue under article 6 and 10 (political speech).
Traditional cases concern Turkey were you have a lot of discussions on turkish/curtish people
who publish newspaper articles and then the turkish authorities have tendency to intervene
under the eyes of protecting national security but perhaps just because of the message.
Obviously things get much more complicated in cases where you could say that the kind of
speech that is under scruteny is not only political speech but also speech that insides to violence
and there ofcourse you can have very complicated discussions. If you are publishing leaflets or
books in which you call for an independence of a territory, is that political speech that we can
easily accept or could we say well maybe this is insightment to an unlawfull act that implies
hate or violence and therefore public authorities can sanction, or limit or restrict this kind of
speech.
There it becomes tricky; it will be really a case by case basis. You can find cases concerning for
example Turkey, for example Incall where the court says we think that this kind of discourse,
picking up the interests of the courts and although it’s very critical of Turkish government is not
going that far that we want to consider it as a form of insightment to violence, hate, hostility,…
Therefore it falls under article 10 and it should be protected. However we have cases, and I
take GUNDUZ case against Turkey. It’s about a leader of a religious sect, and this guy is saying
that people who do not agree with his positions, could be killed. Although these kind of persons
could say “we have ideas about how society should be run and developped”, obviously the
court isn’t going to accept this. Insightment to these kind of series offences is not what we
protect. There you see it even says we apply article 70 or we find the case inadmissable.
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So that is always the problem in the political debate. It is not the consenso hart of the political
debate that is so much of a problem, see it from the perception of the Strasbourgh court. It’s
the borderlines where it becomes problematic, it’s where political points of view tend to
become or are insightment to violence, to crime, etc. And there it is a little bit a matter of
(atocrony?).
That is the issue of the political debate. Very much related to that, last week I already hinted at
it, is the academic debate. You can draw a parralel. If political debate is what is really at the
heart of a democratic society, then academic debate is really at the heart of the search for
thruth, for knowledge. We must have the possibility as academics to discuss, without the
fearing too much sanctions. But then again, in my personal view we should limit academic
speech to academics talking about their topics. That is academic speech. If you are a
mathematician and a professor of the faculty but you start talking politicis then I’m not
convinced that you can claim academic speech. Because in those circumstances you are just an
academic, goint outside the area whichin you have a certain expertise and you are talking about
other things like every other citizen. I find it difficult, from the moral point of view, if people say
“yes, but i’m an academic”, then I have the feeling that you are defending a privilige. And there
is no single reason why you should have a privilige compared to an ordinary citizen. So I can see
why I should have academic speech when I’m talking to you about human rights. So maybe I’m
going to say things that are shocking or disturbing and there I would say yes but there is
academic speech, we can have a discussion. But if I start here talking about nuclear politics,
what is my expertise in nuclear politics? And why should I be covered by academic speech when
I’m talking about nuclear politics? I think it’s unfair in legal terms and especcialy in moral terms.
Are there cases before the court? Yes ofcourse, there’s one I really like. Maybe Paul Lemmens
always insisted in reccalling this.
This university happened to be a catholic university and we had a very brave chancelor back in
the 80’s. It’s rector De Somer. Whenever we have class in the big aula (it’s called Pieter de
Somer, that is him) . You even have a piece of art in front of it, we discuss that it’s artistic
expression, that is also free. That is it. Now this guy receaved in the 80’s the pope, he came to
belgium. There was a huge meeting and I think it was in Leuven. There were a lot of people and
there’s the pope and there’s the chancelor and he holds a speech and he came from the
departement of medicin and of course you can imagine that the then pope, Jean Paul II, was
not the most progressive mind on earth, especially in those areas. He was from a traditional
catholic position, very strict on what catholic researchers could do and not do. The rector
defended the university, the academic freedom, and he asked, claimed and defended the right
to fail, to error as a matter of academic freedom. So that was an impressive moment in the
history of this university. We see that there are some problems
One of the cases that came before the Strasbout Court was a case against an italian professor.
I think some of you may know him, when I am in Italy I already see some of his books. It’s
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Lombardi Valauri, he was a legal filosofer. He were, that is important, (iets in het Italiaans). The
professor Lombardi Valauri, since he wrote on legal filosofy and ethics, that was his field. He
was appointend on a not permantent basis. At a certain moment in time he could get a fixed
position and he applies for than, the board needs to decide whether he could get class and get
appointed etc. And since it’s a catholic university, there is an institution on the Holy Sea, that
gives it’s opinion on the person. That is the Conguration for catholic education. And it finds out
that the professor is writing, publishing, teaching stuff that runs counter the established
catholic faith. Therefore they give a negative advice and they ask that he will no longer teach
at the faculty. The faculty takes note and starts discussing what they should do, and in the end
it finds out that basically the application of il professore Lombardi for the position was
inadmissable. So basically he is not appointed. And this was due to the advice of the special
institution.
Then he goes to the Italian court, because he doesn’t get what he wants on account of a very
vague formulation. Like your teaching is not in line with catholic faith. But in italy he didn’t got
regress so he goes to the Strasbourg court. Now this is a very complicated issue ofcourse before
the strasbourg court because you feel all the interest at stake. There is the freedom of
education, of organisation of catholic university. So we have more or less a case that is similar
to the case of our Spanish priest. Professor Lombardi can say I have freedom of expression but
that university can also say well we also have freedom of … That university should be not in a
very strong position, by saying you have been hiring this professor for so many years now,
apparently you were all happy with it and then all of a sudden because of a negative opinion
of the board, you decide that you can’t point him. Than perhaps your own position was not
very deaply helped so to say. But in any advence the court sees that this is basically the problem.
How does the court deal with it? First article 10 issue, obviously. Interference, obviously. There
is a legal basis, is it legitimate? Yes it is, in the sence that we can think that this whole procedure
is about protecting the rigths of others. Which is protecting the right to teach catholic. Then
the question is was it proportioned, was it necessary? And here the court skilfully goes on to a
procedural article by saying listen what you did was you got a negative advice you
communicated to the candidate that there was a negative advice, but you never respected the
ideas of equality of the right to defend. That is what you never did. Your reasons were very
vague and very uncertain and professor Valare could not defend himself. That is an important
point because in not giving those reasons, in a suffiently clear way, the problem was that
professor Lombardi could not defend himself in a proper way and you made it also impossible
to have a clear judicial review. Because the Italian court could not check either in a very
informed way what went wrong. So basically what the court there said is that the italian court
did not sufficiently check the reasons put forward by the university. And the university did not
communicate in a clear and extensive way the reasons that were at the heart of their
descisions. So what we see here is basically that freedom of expression can have a extensial
and a procedural dimension and so in Lombardi there is the procedural dimension that takes
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the lead. And I must say that judges such as professor Lemmens do really like this procedural
dimension in cases where there is a conflict of the fundamental human rights. Not all judges do
agree with him. There’s another cases in terms of freedom of expression where it was about
the private life on the one hand of the Prince of Monaco and his daughter and her mother and
then they gave an interview to a tabloid. Here there’s a balancing of interests once again.
Should freedom of expression prevail or should privacy protection prevail? And Paul Lemmens
said that this is something where we should leave it up to national judges to do the balancing
exercise but they should do this in a way where they take into account all the interests at stake
and do a balancing exercise. And that is the logic that is so present in the Lombardi case where
it is said that maybe this is not excluded, maybe the university could have decided not to
continue with this professor but then it should have been done in a proper and clear way, with
reasons giving all the reasons and all the interests at stake. And that is so complicated in the
freedom of expression cases.
Some of you may have seen the discussion we had this week on the francophon television. So
you have a television program and it’s a political debate and they have pannels. You have some
guests there to stere up the debate. And their point is that they say their opinion but they have
to be provocative, now one of these provocative journalist made a common on the people who
come up against the high fuel prices. This provocative journalist says “yes guys but you have to
be coherent, this is so many years that you are voting for the same political parties and some
weeks ago the green party won the elections in Wallonië, and now you’re complaining about
high fuel prices, next time when there’s elections think twice” she said. Now obviously the
green party is extremely upset and they say “these are lies, we are always in the position where
we’re not responsible on the taxes of fuel so why are you accusing us of being responsible for
the high prices on the one hand and secondly we don’t think that is your rule to give electoral
advice”. Now this television station says “Oh yes these were very outragious words and we’re
going to suspend here.” And ultimately they said that they weren’t going to continue with her.
The whole question is, is this a violation of freedom of expression? And you can easily see how
complex this issue is because if you say “yes this is a violation of freedom of expression”
basically you are saying to a newspaper or a television station “whenever you are working with
a free lancer you have to continue doing so because each time the person to who you say “well
done but now we’re a little bit bored of you”, the person can say that this is a violation of
freedom of expression. So that’s not what you can really say. And the television center did say
“freedom of expression implies the right to choose with who I’m working and sometimes you
change person”. But on the other hand you can say “listen maybe you just did this because of
what has been said and is this the kind of political implyment we want to have in our country”.
On top of that people who you pay to be provocative, whenever they say something you fire
them so to say. They will say “this is not firing this is just saying that we want to continue with
other people”.
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You see how difficult this is? And this is even more complicated whenever we are talking about
people in labour relations. Is there freedom of expression on the work flour? And here you will
see that labour law comes in or administrative law when it comes to civil servants. And the
question there is to what extend can people, that find themselves in a special relationship,
either with the authorities or with the private employers, claim freedom of expression?
Because on the one hand we can say, that would be an extreme position, “listen no one is
forced to become a civil servant or no one is forced to accept a labourcontract with an
employer” therefore if you do that, you wave your freedom of expression rights at least on
working hours. On the one hand we say that we can’t just wave our fundamental rights by saing
from now one from 9 to 5 it will be the employer who decides. That would be way to far.
Because in such circumstances how could we have trade unions? Because an employer can say
“oh I decide what you can say during working hours, now if I forbid everything that is related
to trade unions, what would remain of our social protections? So we see that this goes too far.
On the other hand we can easily see that claiming the opposite would make no sense either.
That is to say ‘you’re hired and since you have freedom of expression, you can say whatever
you want even if this is highly embarrising to your employer”. So when I signed my contract
with KUL they did not say that they have a very liberal contract but obviously they would
sanction me I suppose if I would start critisizing the university. We would say yes there are
limits. Suppose you’re a manager of coca cola and you would start saying “coca cola is so bad”
would we accept that? We won’t be suprised if this person was sanctioned.
This is a matter of striking some balances. And when it comes to civil services, we see that
there’s an evolution in the case law of the court. In the past it was accepted that the civil servant
relationship was of such a specific nature that they would not be able to claim human rights.
Then ofcourse it was decided that this goes too far. So yes a civil servant has fundamental rights
BUT the court accepts that given this specific nature of the civil servant relation that those
rights can be more restricted than in other relations. You see an evolution in this case. One of
the examples, although it was with a very small majority, was the case of Madame Voogd who
was a schoolteacher in a public school in Germany and who happened to be a member of the
German communist party. And so here the question was if she was sanctioned because she has
an ideolagy that runs completely against the hart of what the convention defends. And on top
of that she is a teacher. The children would then be exposed to a person with ideas that run
completely against the ideas on what the modern Germany is build so she must be sanctioned.
And then the court found out that that was disproportioned and that teachers in public schools
can be members of political parties and that you can’t just for that reason sanction them. One
of the points was that there was no evidence that madam Voogd was doing a procetitism (?),
that she was complaining during working hours. So that is a very important issue. But to show
you that specific circumstances can have an impact on the outcome of cases.
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It is very hard to find clear positions but think about the 1999 Rikvendi case against Hungary.
At the core of the dispute was the fact that it was decided that people in the military, in the
police, in the armed and security services could not engage in a political activity. You could
expect that the court finds that this goes too far, that this is disproportioned. But what the
court says is listen we have evidence that this legislation is closely related to the transtition of
Hungary to a communist state to a democratic state. What the hungarians wanted to avoid is
in a way that former communist would easily be recuperated in the services. And therefore we
want in a way a kind of transititury period where there is a clear distinction between politics on
the one hand and the army or the police on the other hand. And the court accepts this although
and that was in 1999 that this kind of situation in a Western European country would never be
accepted. But I would argue that maybe they have objectively good reasons to apply this and
so they think we should accept that. I’m not that harsh with the court on that.
Once again in the labour law context and freedom of expression, that is complicated, precisely
because you have here this horizontal effect where we know both parties are not in an even
relationship, but that does not mean that one party should not be able to enjoy her freedom
of expression. So even employers could have legitimate interest restricting freedom of
expression cases. I did some research on that topic, specific within the Belgian context, you see
that the Belgian courts would deal with these issues, and the point is that here are fairly few
cases. Which is due to the fact that no one in this country is looking for the conflict in the
boarder lines. We won’t talk about certain issues because than we would get into trouble, be
careful what you say. Then you won’t get in trouble. I did not find many cases where one would
clearly say “I’ve been fired because I voiced political opinions on the work floor or because I
was active in a political party and then my employer came to me”. Exception for extreme right
parties, there were some cases.
Most cases came out in terms of the use of social media whereby people would do typiccaly
things we all do, the favourite discussion of people is to go and have a beer with friends or
collegues and complain about your bosses or your job. That is what people do, that is
completely normal. In my generatin we would have a beer on Friday afternoon and say these
lawyers in those firms are crazy but that was confirmed by 5 or 6 other people and if the
employer would come up with that they would deny it and say they never said that. But you
guys do that on facebook and then you say “yes but it was in a closed group” but there you
have it. People then forward it. So you have some cases where employers come to know that
employees consider them to be corrupt fools. Then sanction comes in. Most of the time it’s
classic labour law. Did you in your relation as employee show respect to your employer? Then
judges can sometimes be more strict and some won’t. There are serious risks so I would say be
careful. Don’t say such things on the internet. Freedom of expression there is a tricky one.
Do you have questions on that? Okay we’ll have a 10 minute break.
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Tweede uur
So we have been dealing with until so far with what freedom of expression means in a
democratic society and how the European Court can protect it, in a kind of universalist,
regionalist approach. Let it be clear: there is no reason to think why opposition parties have
more right to criticize government in let’s say Norway and France and less in Turkey and Russia.
That doesn’t make sense. So the standard is if political debate highly protected then it is highly
protected because it’s in the hart of what is a tolerant open democratic society and therefor it
holds up the same standard on the whole continent.
Now we are moving to a maybe more difficult subject and that is obscene speech and
blasphemy. Now when it comes to obscene speech there are not that many cases. We all know
and we discussed it already the margin of appreciation, the Handyside case. Handyside, this
little red schoolbook, was considered to be obscene in England, although in other parts of
Europe there wasn’t such a problem. The court is its Handyside judgement and it’s therefor
one of the leading cases, came up with this margin of appreciation idea, that we already
discussed. Came up is maybe not the right term: developed and for the first time in detail in
that case. In their area of the freedom of expression, the Handyside case is extremely well
known for it lounged a slowdown that ever since comes up I would say comes up in almost all
cases of freedom of expression. It says ‘Freedom of expression is not only protecting
conventional ideas, not only ideas that are widely shared, not only ideas that surprise not
anyone, but also applies to ideas that hurt, shock or offend (des idées qui hurt, choquent ou
enquiète). That is what the Court says.
Then of course it goes on. What do we see when it goes about obscene speech, about
blasphemy? We see that there may be cultural variety. What is obscene in one country may
not be essentially in another country. The court believes to a kind of extend this margin of
appreciation of the local authorities. It says that it can be said that this authority can judge that
this form of obscenity is worse that another. On the other hand you can see a more liberal
revolution throughout the years. It has been said that in many case where obscenity was in
play, most commentators would say ‘Well it should be allowed.’ And you can see what the
problem is with obscenity and blasphemy. Where you clearly have countries where blasphemy
is a crime that can be punished and you have other countries where it is not a crime at all.
Obviously there is a divide and a distinction. What we saw in earlier years and for many years
is that whenever the court excepted usually as an instance of margin of appreciation this
restrictions, commentators would criticize this. This was for example the case with Otto
Preminger against Austria where a so called blasphemist movie in Tyrol could not be shown
although you have to pay to enter the cinema complex because it would hurt the feelings of
the religious majority of Tyrol. Of course this case was criticized because it runs counter for the
idea of Human Rights as anti-majoritarian devices. Whereby we would typically say that it
doesn’t matter what the majority of people thinks, especially in freedom of expression where
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you protect minority discourses. So if people want to see that movie and you are protected
from seeing it.
You are of course the internet generation. You don’t know that but when I was a child and an
adolescent, in Belgium you had all those kinds of people and they were watching the Dutch
television for they had some kind of soft erotic shows. And then the day after people in the
coffee corners discussing the show and saying how disgusting it was and how it should be
forbidden. And then you always had people that said ‘You watched it and nobody forced you
to see it. You could have switched it off.’ And then the day after they say the next they: ‘It’s a
scandal. I had to watch the end to see if the continued’ There you could either way say ‘I we
continue this and we protect children, what is the fuss? We could still have the discussion but
if it’s in a closed cinema… But the court said ‘It’s okay for us’. For many year we thought this
case was an outlier but some weeks ago I told you about this other case against Austria on that
woman being very critical for Islam was sanctioned again. Again the court said ‘In order not to
hurt their religious feelings, etc.’ And they took up the logic of the Otto Preminger-case. And
the point is, and you know how difficult it is, whereas up until now I tried to explain you that
the freedom of speech is to protect the speaker and not the audience. I say ‘Yes, but people
might be hurt or upset or whatever and that’s why you shouldn’t be allowed to say what you
whatever you want.’
There will always be someone being hurt by someone at some point. Would that be sufficient
to the discord? And if not why in some cases you would and in other cases wouldn’t.? And what
if, in Amerika they would call it the violence speech, you have the kind of cases where you could
say ‘if we allow this guy on stage or this movie, I will be so upset that I will become violent.’
That it’s why you will hear every now and then that event is cancelled because it’s dangerous.
That is what the Americans call a Heclo speaker (?) because then you are giving an incentive it
pays off. If you go to the dean and say: What is it with that Lemmens guys? Not the old one. He
is great but the young one. It’s impossible that you allows this guy to teach. If this continues we
are going to be extremely upset. Upset in a way we can’t exclude violence to him, to your
Lemmens guy. What should the dean do? We have to cancel it? There will be violence. Suppose
I will say: oh yeah, finally time to write. Cancel it dean, no problem, cancel it. What would be
your reaction? You would be extremely happy. Because that Lemmens guy is one thing, but we
have other things: security system is one thing and Vincent Sageaert... We are going to try it
again. You say: ‘Dean, if we have three freedoms, that Devroe, if you don’t stop him, we will
become violent. In the end, going to university won’t be that challenging. Because there are no
classes. You have an incentive to be violent.
So I can see why maires in some circumstances are forced to to act to prevent worse. That I
understand. But it can’t become a strategy where you say from a law and economics
perspective ‘this is fine’. Each time we become violent and we get what we want. If we accept
this in terms of freedom of expression, where do we end up with our freedom of expression?
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So that is the problem. That’s why more and more have to take them together… You can see
that at the one hand the court says ‘People have their religion, believe (can be a religious
believe, a secular believe) You can be a Jew. Now you must accept that other people are atheist
and say ‘I criticize that believe. But of course, and here is the problem, it becomes sometimes
very hard, it becomes difficult to distinct a sincere critique… For maybe many of you have seen
‘The Life of Brian’. Have you seen The life of Brian? Always look at the bright side of Life? You
can say that is laughing with religion. Back in 20 or 30years ago not everyone taught it was
funny. It is almost Christmas and the Flemish students may know this song ‘Jezeke is geboren,
hallelujah hallo’. Now we are laughing with it but when I was young, it was a scandal. When we
go back in our history, even in our local history, we may find a lot of examples. I think it’s Martin
Scorceze ‘Last Temptation of Christ’ in France: procidings, protestations to prevent that this
movie was shown in cinema. That was the era of Salman Rushdi’s book Satanic verses. That’s
where we are. I think all of this must be allowed. This is what living in a democratic society is
about. You have your ideology and other people have theirs. To be clear: I’m not saying that it
is necessarily a good, a funny thing to do.
So it is not necessary to criticize people’s believes, religions, opinions… There is no single duty
to do so. There is no reason to mock someone’s religion. If people think, if they fear the need
to do so, they should be allowed and they should not run the risk. However that is so topical
today, that is the racism topic. Obviously there is a point where a criticism or a believe can
become a proxy for certain vulnerable groups in society. Then the you have the difficult
discussion because you are entering in another debate. That’s debate on to what extend the
freedom of expression can include the right to express discriminatory, racism discourse. And
that’s different topic because at the one end the court says, and I quote ‘Freedom of expression
is also about shocking, disturbing ideas, ideas that may hurt.’ So you would expect that the
court there basically says: maybe we don’t like to hear extremist discourse, as long as it’s
covered by etc.’
But that is not the position of the court and that is not the position of the international human
rights law because at the other hand we have the international covenant for the elimination of
all sorts of racism saying that racism should be punished. States must us all means, says the
covenant, including criminal law, to fight hate speech. The convention itself contains a provision
17. Article 17 says that no one can use the rights or freedoms protected by the convention to
hamper the free exercise the rights and freedoms of others. So this is what is called in the
French revolution ‘Pas de libertés pour des enemies de la liberté. No freedom for the enemies
of the freedom. What the drafters of the convention wanted to avoid is that the kind of Goebels
guys would say ‘How wonderful this is this free and democratic system that gives me all the
rights I need to fight and destroy it. If the aim of your speech is to destroy the democratic
society, then we need to stop you. So no freedom for the enemies of the freedom. Now here
we have, whenever the court has to deal with extremist speech of hate speech, it basically can
adopt two approaches. One approach could be to only have a look at who’s talking, what he
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has to say, what is the goal and then apply art 17. That is what literature calls the guillotine.
They chop of your head and say ‘go away, walk away, we don’t give you the floor. Your case is
in other words, inadmissible. But that may be too cruel.
So in other cases the court will apply art 10. Then you would have the situation that someone
comes to court and says ‘I’m sanctioned in domestic law for hate speech and I think it’s the
violation of my rights and then the court instead of saying ‘You are an enemy so walk away’ the
court says ‘Okay, so let’s have a closer look.’ And go and have a look to what have been said
and then apply the two step test. And then they could easily say that it was necessary to
sanction you. So case dismissed. In other cases you see that the court combines both
approaches by saying we take the case from an article 10 persepective and then we analyse it
in light of article 17. And sometimes to make it even more complicated, you can even see that
the court comes up with an approach in which it simply thinks that under art. 10 the case was
manifestly ill found. Okay, so we don’t see any violation of art. 10 or whatsoever. The point is
how does the court do that? When does it follows which approach? The answer my friends is
“I don’t know”, and that’s not because I am completely incompitent, that is because they don’t
know. And if you talk to judges they would never admit that, you should take them to a bar and
have some beers, and then they would say “yes, if there is something where we don’t have a
clue of what we are doing, then it is this case. And so it becomes completely intransparant. And
if you go and read various cases, then you would sometimes wonder “and why did they say
here art. 17, while perhaps what had been said was less shocking, less outrageous then what
someone else said and there they used art. 10. So the way they adress the cases is
unpredictable. If you look at it contentwise, you would also see an extension of the very motion
of hate speech. There is no clear definition of hate speech. The approach probably is that it is
a form of discours that is used to arouse feelings of hate, dismay, dislike, disapproval of certain
vulnerable groups in society. Now if you typically look at how they approach the questions
under art. 17, the real hardcore hate speech, traditionally the court founds this in cases where
neo, in the first instance people that advocated totalitarian regimes, so Stalinist, Neo-nazis. So
the court says this what the comission, the art. 17 clearly was made for. You advocate a model
of society that is completely adox?? with our torn, democratic society. So we will not give
stalinist freedom of expression in order to replace the democracy with the stalinist dictatorship.
Or we will not do that with neo-nazis either. In tousy first’s approach, and obviously then luckily
this kind of people became less important. But in decent times this approach has been used as
well in some German cases, amongst others, Khalifatshtad against Germany and where the
totalitarian on the ally was a Sharia based state. So you would have people say “we want to
replace the democratic German institutions by a Sharia based system” then they would say “no,
art. 17” and that would be completely in line with the old case law on neonazis. And then they
expanded it and they say “well if you are a Holocaust denier, maybe Holocaust denial is not
acceptable either. And then you’d see for example the French Garaudy Case, where they clearly
applied art. 17. One again in 2015, for the French, M’ Bala M' Bala v. France, he is a not so funny
french comedian and he’s an intriguing personality who back in the 80’s, started in as an antiracist comedian, with a fellow comedian, and so he became verry popular, and then he started
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making jokes on the Jews, and as far as I understanded it was not verry clear wheter this was
like being anti-semist or it was making fun of anti-semist. So you would say “what is this” but it
could be part of the joke and then in the end it came clear that the guy was a kind of anti-jews,
anti-semist comedian. So he has his shows, and in France they are regularly forbidden by the
French Supreme administrative court, and then he comes to Belgium. And we are more liberal,
so usually he can have his shows, and every now and then it is forbidden on the basis of art.
26 and the constitution and the new community policy law. In 2015 one of the points was that
M’ Bala M’ Bala was sanctioned in France, because he had a new show, that was artistic
freedom, but then it appeared that he had invited on the stage holocaust deniers, so the court
clearly said art. 17. Then we saw that hate speech became even more enlarged as a category.
We have the Swedisch case Vejdeland, and that was about homophobic speech, where
someone was sanctioned in Sweden because he had distributed leaflets in which he
disapproved homosexual behaviour and he was sanctioned. And he said “yes but there is no
duty to like homosexual behaviour, why wouldn’t I be allowed to say that I don’t like it?” The
court said “yeah but it was in a secundary school and the children could not escape your
message because you put it in their lockers and that’s why in the end the Swedisch authorities
could sanction you. But you can see what is happening all the time; on the one hand we are
saying freedom of expression is there for ideas that shock, hurt of offend, but on the other
hand we are sanctioning people that are camasing ideas that maybe we strongly disapprove
off, but where we say it can’t be sanctioned. Why would someone be against homosexuality?
But why would we sanction someone who is againt homosexuality? Is that really something we
want to forbidden? We can! But then can we still say that we are protecting ideas that hurt,
shock or offend, it’s like, it becomes verry complicated. And that is also why this case law is so
complicated.
Now if you go to the clear racist cases, you can see that someone like Le Pen has been
sanctioned in France, but maybe was treated more severely than less known persons with a
discord that was in that case even more shocking. So you can realize that, perhaps even the
nature of the person, the reputation, determines the way cases are dealt with. That is in my
opinion a very complicated issue to accept. Because then we are moving away from the rule of
law to the rule of men. So that is a problem. Think about cases such as, and this is a case against
Belgium, but thinking of cases as Daniel Ferét (the ex-leader of the Belgian Francophone Front
National). He got sanctioned in Belgium for political leaflets in which he was extremely critical
of mass immigration. And then he goes to the Strasbourg Court by saying that this is a political
debate and in the end the Court says (Four to Three) that Belgium could sanction the guy. But
you can see four to three. There was again the descending judges that said: “We strongly
disapprove of the things he said, but that is not the point. The point is whether he or she is
allowed to say the things in a political debate. And there you feel how uneasy it is and how
difficult it becomes.
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The Perincek ase against Switzerland, now this is a fascinating one. Because this is a case
whereby mr. Perincek is a Turkish politician and he gives a conference, a press conference in
Switzerland and he says on that conference that he does not deny the Armenian genocide. He
did not deny the facts that we call genocide. Only he says that it is not a genocide, but the
people die. He says that it is basically due to the way England and France and so on behave.
Under Swiss law he is sanctioned for denying genocide, genocide-denial. So Mr. Perincek goes
to the Strasbourg Court and the case ends up before the Grand Chamber. That was that day
that George Clooney’s wife was pleading, so you had television cameras all over the place.
Judge Lemmens told me that one day he went to the Court and we were all amazed because
there was so much television and it was overcrowded and nobody could understand what was
happening. And then they realized that Clooney’s wife was pleading and that she attracted off
course all of the attention. But in the case of Perincek, the question is: “Can people deny
genocides?” And if the answer is yes, what do we do with Holocaust denial? It’s a very long case
and then basically you see that the answer to all of that is “Why is it forbidden in many European
States to deny the Holocaust?” But wht would denying the Cambodja genocide or the Rwanda
genocide or even the genocide in Armenia, why would that be a big problem? And the answer
basically is history. Because the Court then goes on and says that there are scientific discussions
about the Armenian genocide whether this is a real genocide or not. But basically the point is
history. Suppose that people from Mars come down and they say Hey Lemmens how do you
explain this. The point is that the Holocaust sets our … (onverstaanbaar something like
“Kamma”). And the danger of those new Holocaust denials are a danger to our democracy. And
that’s why we have legislation to forbid that. And it’s as hard as that and you can see how
complicated it becomes as soon as you stop thinking of it in terms of principals, it becomes very
difficult. So the hate speech is for various reasons a very complicated one. It looks like in the
future much more cases will come up precisely because the races and the people who want to
discriminate, they adopt their discourse. And then for example they will target religion, but
obviously religion is not a race. And that is why I think that, as a matter of principle, we should
not mix it up, but we have to be very careful. So I would say there is a presumption that religion
is not a race, but it is a refutable presumption. If you can prove that, in a particular case, people
have been targeting. Say in Belgium they wanted to say that people from North African descent
were afraid of being accused of racism so they changed North Africans by Muslims. If you can
prove that that is the point, I don’t see why you wouldn’t be able to apply the anti-racism
provisions on that. But that is something different than for example saying that criticizing is
racism. Like Charlie Hebdo criticizes but they are not racist. I don’t think that Charlie Hebdo
equates racism or that Isamophobia equates racism. But I do think that in some instances it is,
but then it has to be proven in the specific cases if we want to protec the freedom of expression.
This is something you can discuss for hours, just let me say on this account one single thing. We
have to make a difference between what people say and publish as authored and what they do
as journalist. If you give the floor to some racist as a German because you want to denounce
what is happening. So if you are a documentary about “Schild & Vrienden”, maybe the problem
then is what the people from “Schild & Vriend” said, but we should not persecute the Germans.
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That is what the Danish people did in the Jersild/Jensen(?) Case. There was a documentary in
which Danish Greenjackets was criticized but given the floor. And the Danish authorities
punished the journalist by saying that he helped spreading the racist messages. And there the
Court said “oh no”. Because if we take that as a position, then no more freedom of expression
is possible. Obviously, this changes when a journalist is quoting these racist messages with
approval. But if he just gives the floor, there is no problem. Do you see that.
Perhaps the last point on freedom of expression. I already mentioned them, so sometimes
there is a positive obligation/dimension to freedom of expression and I think we mentioned
them. First in some Turkish case; the right to life. That was also last week Roberto Saviano’s
example. You have to protect people if they’re in danger because of what they are saying.
Secondly, there is an obligation to take into account (?)media pluralism(?). Centro Sette against
Italy for example. So if you are giving broadcasting licenses, you have to develop a fair system
of broadcasting licenses and you can’t just establish a system that gives the privilege to one
group
and
not
to
others.
So
that
is
an
important
issue.
And obviously, we discussed it already earlier today that is this idea that maybe you have to
protect people against too disproportionate sanctions on account of what they have been
saying. So that is the Spanish case Bobo Fuentes. This person worked for the Spanish television
broadcaster and he wrote some articles being very critic about the Spanish television company
and then he got licensed and the Court found that disproportionate as a sanction. So that could
be the positive obligations. That’s it!
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Les 16 (30/11)
Eerste uur
RIGHT OF PROPERTY (Art. 1 of Protocol No. 1 to ECHR)
1. Scope of application
A. Object of Art. 1 of Prot. No. 1: right of property
Let’s move on to the next right. I want to go to the first Protocol, so Protocol no. 1 and art. 1:
which is the right of property, right to protection of property. It is already in a Protocol, so not
in the Convention. That is a first illustration of how overtime the Convention has been
completed and amended through Protocols, we discussed that already. Now, the mere fact
that the right to property is not included in the Convention, but immediately included by an
extra Protocol already indicates that it was not self-evident to have it in the Convention as such.
Why was that? Here I have to recall Marcus Durantis’ analyses of the origins of the Conventions
and where the right to property - back in the late 1940 - was obviously a debated right. A right
that was in the heart of classic liberalism and that conservatives would protect and value but
that on the other hand, on the more progressive side of the political spectrum, was of course
met with concern. The concern that after WWII, the economy was much more planned, and
we call the success of the then Soviet Union, which right after the WWII and so there was a fear
on the more progressive side that conventionally protecting property rights would be a
contrabalance to the possibility of developing more state planned economies. But at least of
having a free market economy but with a much more collective dimension then conservatives
would appreciate. So that’s the struggle and that explains why it is not immediately in the
Convention but then it gets into the first Protocol.
If you have a look at this article, you will see that in a way it is about peaceful enjoyment of
property, it is a protection against deprivation of property and it’s about the use and control of
property, I just want to go into those headlines of the article.
B. Notion of “possessions”
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1) Autonomous meaning
We are talking about the peaceful enjoyment of possessions. What are we talking about? Can
we really say is there a right of property? Yes, no discussion when there is a right for peaceful
enjoyment of possessions. In French it is even worded in a perhaps more ambiguous or strange
way: “Le respect de ces biens”. Le respect de ces biens, is that really a property right? Yes, no
discussion possible, it is about a right to property. Since it indicates the peaceful enjoyment of
possessions, the question then is: “What do we mean when we say possessions?”
Goederenrecht in a nutshell. Obviously, in the first place: the material possessions, the material
goods, and so on.
BUT it is not only a matter of material goods as such, but it can go further: it can be a matter of
interests and rights. And so, commercial assets can be protected. So, if you have goodwill, if you
have clients, if you have economic interests, even if you have rights to social security
allowances, it can be protected. If you are entitled to a financial compensation, if you are
entitled to a welfare benefit compensation, that’s part of the meaning.
Now here already, you may be a little bit surprised when I am saying: “Well, if you are entitled
to a welfare benefit”, because some of you may say: “You said the Convention was a
Convention of civil and political rights (first generation rights), no social and economic rights”.
And here you are saying social welfare rights can be a right protected, isn’t that a contradiction?
A few words on that. First, your reaction was a very good one and someone as professor
Bossuyt typically criticised the European Court of Human Rights because of this case in which
social security rights were protected. But it is social security rights, with a very important
footnote/nuance. If we are saying that property rights are about your possessions, it is even
about possible future claims, it goes beyond the mere things that you simply had. Wouldn’t you
think, that if you are f.e. retired, that you consider your monthly retirement allowances, that it
is a kind of possession? In other words, compare it to a disposition. I am payed by the university,
one day I will be retired. All of a sudden, instead of being paid by the University, I hope to find
money on my bank account not paid by the University but by the Belgian social security system.
Do you think this makes a difference for me in practice? Obviously no, I still have to pay all my
debts, so I need that money. I have to pay someone to take care of my and so one… In the end,
this is something as I consider as being part of the patrimonium. Suppose the Belgian state
would come up with a pension cut, it would feel as if money is taken away from me and I would
become poor. So that will be an interference with possession. That is exactly the position the
Court followed. The court said in previous cases: “Well, maybe we should make a distinction
between social security rights, completely outside the protection of the Convention. And then
they said: “The kind of allowances were people in part contributed to the social protection that
is to say, the Court will make a difference between an allowance were you never payed
contribution and an allowance were in part you payed contribution.” Suppose you have a social
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security mechanism or allowances based on contribution such as we have for most security
system, were employers and employees pay contribution every month to the social security
system, on the one hand. And on the other hand, saying things like “leefloon” where there is
no direct contribution and it is funded only by the State. So, in previous cases the court said
that if you had been contributed to it, then it is part of your possession. But if you haven’t, it is
a social security right that falls outside the scoop of the convention. But then, the Court start
thinking: “Well, we see in Europe a huge variety of models and most of them are mixed models,
that is to say social security system were the state in part pays or contributes on the basis of
general taxes and whereby people that have contributed as well through social security taxes
as we know them as werkgevers en werknemers bijdrage. Let’s consider these allowances as a
part of possessions, as being something that can be covered.”
However, what the court did not say is that there is under the Convention a right to social
security allowances. Do you see the point? So basically, what the court says: “If your national
legal system grants, gives you social security allowances, then changes in the system can be
challenged on the basis of art. 1 of the first Protocol. But if your national legal/security system
does not give you allowances, you cannot go to the court and say that there is a violation of
art. 1 first Protocol and you don’t enjoy and so on...
Criticism to the Court is that the court now is giving a little bit too much and is giving social
security right to everyone, that is not correct. What is correct is that if you are granted those
rights and things have changed, you may have the possibility to go to the Strasbourg Court. But
we see immediately that there is little chance to win your case but at least you can ask and
complain about it.
2) Not covered
And this is perfectly in line with the idea that, according to the court, you are not under right
to property, is not protecting property as such. Your right to acquire property. So, if you have
possessions, then, they are protected. But if you not have possessions, you can’t claim on the
basis of art. 1 of the first Protocol. You have to obtain something. So basically, I have this (takes
his bottle of water), this is protected because I have it, so interferences here are protected.
Suppose I wouldn’t have that, on the basis of art. 1 “this is mine”, it wouldn’t work. But suppose
you were a public authority, you can’t take that and on the basis of “I need something” so you
owe it to me, that is not what the right to property is.
Neither is the convention protecting the mere hope that you may become one day an owner
or the mere hope that something could be acquired, that is not protected either. Whenever it
is about future possessions (claims f.e.), the Court may want to consider that as being part of
your possession and as being protected but then to the extend you have a reasonable claim to
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win your case. What is not protected is mere theoretical aspirations, you have to show that
there is something more.
2. Obligations of the State
A. Negative obligations
1) General characteristics of prohibition of interference with the right of property
What should the state then do? First: negative obligations, no interference. And here again, the
first Protocol is drafted in a different way, different from the articles we have been discussing
up to now. It is not really drafted along the idea that you have a first paragraph stating the right,
second paragraph stating the exceptions. It is more complicated. There are in fact three
different rules, although the application is not so much different, it is important to distinguish
them. You have the enjoyment of possession, which is the first sentence, and which is in fact
the general rule, and in a way the fall-back position. The second rule, concerns deprivation of
possessions. And then, the last rule is about control and use of possessions. So, whenever the
Court is dealing with a case on property rights it should in a way determine which rule is to be
followed. Is it a matter of deprivation, is it a matter of control and when it is nor deprivation,
nor control or use of property, then it would be an interference of enjoyment of possession.
That is in a way the approach.
2) Specific characteristics of the various forms of interference with the right of
property
a. Deprivation of possessions (first paragraph, second sentence)
Let’s have a first look at the first and perhaps the most important well-known category and that
is the category of expropriation. That is something we also have in our Constitution, although
you would see that in the Belgian Constitution, the right to property is at least when it comes
to expropriation is better protected.
Now, what does the convention mean by deprivation of property? In the first place, that is the
formal expropriation (the classic example). But it also concerns de facto deprivation of
property. Now, de facto or quasi expropriation is something, you may not have heard of, but it
was discussed a little bit two years ago. Do you remember the discussion on the CETA Treaty?
The European-Canadian investment Treaty and those specific tribunals that were going to be
established to deal with possible claims. There, in those cases, in the international investment
law, they usually protect not only against expropriation but also against de facto expropriation.
De facto expropriation is a situation in which you, as an owner, are on paper still the owner,
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but in fact the situation is as if you are not anymore the owner. Example de facto expropriation:
suppose I am the owner of nuclear power plant. Suppose that Doel 3, that’s me. All of a sudden,
you have this kind of weird politicians and that says: “no more nuclear energy”. What does this
mean for me? This implies that my plants are worthless. I am still the owner, but I can’t use it
anymore because the activity that I intend to have there will be forbidden by law. What would
be the difference for me between the situation where they are going to deprive you and the
situation where they say: “keep it, but I can’t use it”, that would be a de facto expropriation.
For example: you have a diesel car. Suppose authorities say: “Diesel ban in the whole country”.
It would be as if you would be deprived of your property.
Now, is that unlawful? Is expropriation as a matter of principle unacceptable? Of course not,
the Protocol is not going to forbid that, it will be restricted. So public authorities need to justify
that, and you know the system by now. The first question, about legality, it is a matter of the
rule of law. There must be a legal basis in the domestic law. That legal basis has to be accessible,
precise, foreseeable and should in some be able to protect people against arbitrary
interferences. Also, the Convention says that it should respect the conditions providing by
international law. That means, in cases of expropriations, there should be a compensation. That
compensation should be full, adequate, prompt.
Second point is the legitimate aim. What would be the legitimate aim here? Public interest.
Public interest could be understood in a narrow way: if a public authority decides to
expropriate, this should be done in order to protect the interest that concerns the community
as a whole. The court goes a little bit further and gives a wider interpretation and leaves there,
obviously, a wide margin of appreciation to the public authorities. So here again you see that
since we are really dealing with issues, that are closely related to public authority issues, the
court shies away from a very strict scrutiny, leaving space to public authorities to make a policy.
Because if you really think about it, what is policy all about? Maybe I have a too narrow
understanding of what is policy, but I think you can define politics as who in a society will have
the advantage of public choices and who is going to pay for it. This is what we are going to do,
in order that those people can take profit out of it and that category of people who is going to
pay for that, that is basically what politics is all about. Saying who is going to pay for it or who
is going to pay the burden, will be often in public policy and interference with property of other
people. That is the political game. The court is does not want to interfere in a very strict way.
So yes, there are limits to what governments can do, but especially here distance is needed.
There should be a proportionality. It is also not a very strict test of proportionality.
Proportionality is saying there should be a proportional relationship between the aim pursued
and the deprivation. Now what matters of course, is that a compensation is paid. And this
compensation should be of course ideally based on an idea that is fully inadequate, and that is
based on the value of the goods (the property) that have been taken at the day the property
was lost. Once again, the idea you have a restitution, that is the ambition. Which means that
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interest is to be paid if this is necessary. Which means, in the calculation you take into account
the delay, the duration of the deprivation. However, the Court admits that only in exceptional
circumstances, no compensation is due, but it leaves open the possibility, but it stresses it can
only be exceptionally accepted.
3. Applications
a. Expropriation
If you go into the case law, many cases on this deprivation issue and you will see that there are
sometimes, well the classic examples. You own a lot of land and the state takes it away from
you, you are expropriated. You see sometimes very difficult situations because maybe you have
a land that was almost worthless and then you are deprived of it. And it is possible that the
state even gives you some compensation. And then, ten years later they start to invest in the
zone and all of a sudden you realised if you would still be the owner of the land in that area,
you would be extremely rich. You could wonder whether it was not a plan, a hidden agenda.
Those cases are sometimes very difficult to prove but you have some interesting cases like
Scordino against Italy. It is not very difficult to see sometimes a kind of structural problems.
A nice case, the name is a funny one: the case of the Former King of Greece v. Greece. Basically,
what happened, after the change of the regime in Greece. All the property of the royal family
was confiscated. And no compensation was paid. Btw, our first king, Leopold I was offered two
kingdoms, also to become the king of Greece. He and his family must refer to this case, they
made the right choice because they still have their possessions. Was there a legal basis?
Apparently yes. Legitimate aim? Was in in the public interest? Maybe yes. Was it proportioned
to confiscate things and not to pay at all? Answer obviously: no. However, I must say, this is
weird, every now and then, you hear some very extremist politicians: we should nationalise
everything. Then the point is, are you willing to pay for that? Maybe we can do that but if you
are thinking as a public authority, assume it is legal under EU law, suppose we would say to
nationalise the banks f.e., you have to pay for that or at least pretend you can get that for free,
I do not think so.
b. Obligation to sell property
It can also be obligations to sell property. But here again you see that, there was a case against
the UK (James v UK), because of housing policies and housing needs, governments have
developed a system where it was under circumstances an obligation to sell for house owners
or for investors to sell their property to a tenant. Although, this was with a compensation. So
you been forced, so whenever under certain circumstances the tenant asked to exercise his
right to buy the house, the owner was under obligation to sell but it was at a reasonable price,
there was a reasonable compensation. You can imagine that people contested that and don’t
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want to sell, and say that this is a form of direct expropriation. Here the court find that given
the fact that there was a proportionate, reasonable compensation, there was a link of
proportionality. The social aim was housing policy and therefore a matter of public interest.
And it was found that there was no violation, so you see already, that whenever it is a matter
of social policies, the Court is not going to be extremely severe.
c. Retrospective legislation, or legislation applicable to pending proceedings
A case that is important and concerns Belgium: Pressos Compania Naviera v. Belgium: “de
Loodsenzaak”. As we all know we have the river in Antwerp, nl. Schelde. There are huge ships
coming to the river Schelde. Although it is not one of the most impressive rivers, apparently it
is a very complex one to navigate on. That’s why, whenever those big ships arrive at Zeebrugge,
they are already calling the pilots of the Schelde, the Loodsen, so they guide those ships from
the sea and guide them to the port of Antwerp. But you can imagine, those ships represent an
incredible amount of money, millions of euros. So, if an accident happens, these are huge
serious problems. That’s why these pilots are so important, that’s why they are payed incredible
amount of money. At a certain moment in time, there was an accident. One of these companies
brings the case to the Court on liability of tort law against those pilots (they are working as civil
servants, so the case is against the State) for the damages occurred, due to a tort in proper
behaviour, wrong behaviour during the exercise of their duties. You are a pilot, but you can
make mistakes. So, the Belgian authorities understands this and see that case and realise this
is possibly a kind of nuclear bomb under the Belgian state, and what then do they do? They
create a law to see immunity for the actions of pilots. That is smart. And they even give it a
retroactive effect by saying, everything that happened after that date (and that was retroactive) they can’t bring a case to the court.
This is of course a nice example of how potential and future claim can be covered by article 1.
Because obviously, if this kind of legislation intervenes during a proceeding, that is almost
admitting as a State that you are going to lose the case. So, that is one thing. The court can
really say that it is a matter of art. 1. Is there a legal basis? Yes, obviously: that’s the law.
Legitimate aim? Saying the State’s financial situation is a legitimate aim. But then, is it
proportioned? Here of course, there is no single reason to think that having no compensation
at all would be proportioned, so there was no justification for those kinds of cases. That was in
a nutshell the first hypotheses on expropriation of property.
Tweede uur
Okay, so before the break art. 1. Three principles of three situations and we discussed the first,
the most outspoken one: the expropriation cases. I told you and that more is central one is
control of use of property. That is control of use including the matter on taxes and contributions
and penalties. Now, what is control in uses of property? Basically, it is not hard to understand
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to what we are talking about. We are talking about the limits on the use of property. People
remain owner of goods or whatever but they are restricted in the full enjoyment of it or they
can’t dispose of it and so on and so forth. There are many cases that you could imagine, limits
to will (?) for example, prohibitions to exploit some properties for certain goal. One could say
that zoning law or commercial permits as an example of control. You own a plot of land you are
allowed to build on it (housing) but if you want a commercial activity it is forbidden. No
commercial use of a building for example. These are situations where there is control of
property.
Then again can there be interference? Of course there can be interference and you will see
that the reason is always the same. Interference? Yes. What do we need? Legal basis. How does
this legal basis… you know the story: accessible, foreseeable, quality of the legal rules and so
forth. Second point. Is there a legitimate aim? Well here, yes there is a legitimate aim. It could
be again general interest issues. General interest once again means a wide margin of
appreciation. And then once again in between the two there should be a proportionality
principle. A relationship of proportionality. Do we have examples in the case law? Obviously.
Take for example cases where it is about housing policies, but regulations on the prices of rent.
So States where there is a cap on rent and the people must acknowledge that this cap is so,
well it depends on your point of view, low or high. That for example the rent hardly covers the
costs or only 20% of the costs of the housing. Suppose you are an owner of an apartment and
there is legal rule that says, well in these areas this is the maximum amount of monthly rent
that you can ask and then you have to say what my rental costs are even higher or are almost
as high as this maximum rent. Is that deprivation? No that is no deprivation, that is control. But
here you can see that policies issues play.
In the Melagener case the Court even found that there was no violation. So the facts of the case
are extremely important. The facts against the backdrop of the, I would say, the societal
context. So it is far less a matter of defending the individuals private interest than a balancing
exercise between this individuals private interest and the social needs. So the property right,
under the convention, is far from the classic 19th idea of a property right as almost of I am the
owner or I possess something and I have an almost absolute right to do with this good or this
thing whatever I want. That 19th century conception of property as the liberal right by
excellence, “afweerrecht by excellence”. Here you can see that it is a completely embedded
idea of property rights. Which in a way, and that is why I started this class by that reference,
which in a way is the perfect compromise between two tendencies present at the time of the
drafting of the convention and the protocol. Barked fundamentalist on the one hand and on
the other hand those that really insisted on social, economic rights in the convention.
There are obviously in housing terms other examples where the Court showed more
comprehension for the owners that was the Italian case, Imobiliare Safi which also had to do
with housing policies and where in the end the point was that there was in a way a shortage of
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how do you call them the guys that effect the tense of a, let’s say… you go to the court and you
win your case and then you go to the lessee and say you have to leave the house and this lessee
says no go to hell. So, you need someone who comes to help you and say get out. And then of
course it was Italy so they changed the law and then they say that in some cases there will be
a priority. If there is a priority you also know that if you are not on the priority list you are an
(?). And so you have owners that were not on the priority list, if you are not on the priority list
we all know how to get on the priority list… okay I won’t say anything. But people were on the
priority list and then they had to wait for years and years. Can you imagine. You have a
judgment it says that your tenant has to leave the apartment but you can’t get rid of it. You
can’t do it yourself, you need huissier, de deurwaarder to help you and here is a kind of shortage
or whatever and they have to wait. And in this case I think it was 12 years. After 12 years, finally
I got rid of my tenant. And there the Court found that this was a violation. Sometimes they have
some comprehension.
A case against Poland, similar or quite equal cases. Also related to housing crises or policies.
And where the legislation wanted to protect the tenants. And where the rule or it appeared
that if landlords wanted to terminate the contract they had difficulties in doing so and they
basically had to find at their own expense they had to find another housing for their tenants.
Which is a little bit weird like I want to terminate a contract but I can only do that if I find for
you a new place to go. But there could be a maybe social needs that justify such a legislation.
But here again the court found that although it was not obviously deprivation of property but
that this conditions of controlling the right on property were so harsh and severe and it was so
complicated to end the contract that that this already boiled down to a excessive regulation
and control of property.
So that is basically the issue of controlling property. I would say in terms of town
planning/zoning laws/economic permits, all this kind of stuff you have of course similar
situations. So I think that there is an extremely important number of cases and situations in the
law in Europe that is about control property. The point being almost always that the
proportionality test and so there again the assessment, the scrutiny of the social needs vis a vis
the individual interest will be the decisive factor in the discussion.
You will see that the protocol also mentioned taxes. And here again the drafters will not secure?
So they did what gold was clearly, is that they want to avoid that people refuse the article 1, §1
to question tax-legislation. The question issues on tax law. So it is already clear, that was not
the intention of the drafters. So taxes as such are not problematic. But then again, you can
accessed to say that public authorities can live in taxes is not the same thing as saying that they
can just do whatever they want. So there again, legal basis, that is in tax law, one of the big
principles even in our constitutional systems. Taxes need to have a legal basis.
It is supposed, it is not even explicitly mentioned that taxes do have a general interest. Taxes
are in general interests. And then again they will leave the question of proportionality.
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Proportionality of taxes and here, and I think that perhaps some of you will know the person,
but last year Filip Debelva defended a PHD of a specific form of taxes, that is double taxation,
so taxes lave in both countries, in one country and also in another country. Suppose you have
shares of a company and they are going to pay you your dividend or whatever, and supposed
you have actions of shares in a French company. So first you pay in France and say 35-40% and
than you pay in Belgium another 45%, so and then you pay banking cost and then you pay...,
and in the end you have zero. The question is that double taxation, is that acceptable under the
Convention?
But that is already a very specific situation, but here you have the more regular situation, that
is extraterritorial or excessive taxes. Here I must say that the Court is extremely, to go very very
far, because this is the heart of sovereignty, the heart of the power of the state, and what I
learned from that PHD is, how much, what is acceptable or proportioned on the one hand and
what is unacceptable and disproportioned on the other hand.
Under Roosevelt in the United States, you would have certain percentages of over 70% of taxes.
In the Netherlands, with the Dutch former prime minister, you would have, if you were the
highest category, 75% of taxes and this was normal. So you would have in some categories
extremely high percentages of taxes and maybe no one likes to pay, but that was what it is.
Now we have the discussion on whether it is fair that people pay 55%. Some politicians say that
some people have to pay more than 50% taxes.
So what are the criteria, and I think there are no legal criteria. It's a criteria near policy interest.
And first the case law of the Strasbourg Court was very..... (niet goed verstaanbaar). I think now
we can see an evolution, not in the direction what is an exactly fair percentage, but what is an
excessive percentage. So you can see cases or situations, and there were cases against Hungary,
where in a way, a critical secret surveillance or critical judges were fired, dismiss and than they
pay them a compensation. So you're fired but they give you a compensation and than they give
them a tax of more than 95%. So I pay you something and afterwards you say sorry there is a
tax of 95% on it. Basically you're giving something and than you take it all back. And there of
course the Court says that is accessible and why. I suppose not only, might taken 90-95% that
is almost … (niet verstaan), but it’s also because there are situations where you feel that this is
a sanction. And then of course it becomes a very tricky.
A case just to show you that the Court has this kind of comprehension, lets call it that way, from
how the authorities is a case of this Gunch German Company and that is the Gasus Dosier und
Fördertechnik v. Netherlands.
We have a company and they are a Dutch company and they buy a concrete mixer from a
German company, (... Duits gebrabbel) But the Germans say: listen, we are going to keep the
owning of the concrete mixer until you pay the whole some of money, but you can still start
using it. You can already see what's gonna happen... So the Dutch company starts using the
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concrete mixer but the title of ownership is still with the German company and that is a
guarantee for the German company. (That is Mathias Storme, the course).
What happens? Now than it appears that the Dutch company was not in confidential health
and it has that with the social security system. So then, what happens that the social security
system intervenes and say oww you're not bankrupt. So the Dutch social security says you still
owe us an amount of money but no problem we will seize your concrete mixer and we have
the money (het voorrecht van de rsz). Than the Germans say no way because we are still the
owner of the concrete mixer. So, in the end this case ends op before the Court. The Court says
too bad for the Germans because there was no violation of art. 1 first protocol saying that
granting tax authorities or social security authorities a power to recover dept even against third
party is not per se incompatible with the Convention and then they considered that the
measure was not disproportionate.
This framing of the word is typical. It was not incompatible, you will often see that cases under
art. 8, 9, 10, 11, the Court is saying that things are proportionate under article 1 first protocol.
It inverts the argument and says that it was not disproportionate. Do you feel the difference?
And so, in many cases for example on the retirement pensions, we already discussed
allowances where there have been cuts all over Europe as a consequence of the financial crisis
and people brought cases to the court to complain about that cases against B…, cases against
Greece, cases against Baltic countries and the Court would take the case by saying: yes ok, art.
1 applies although it is about pensions and therefore social allowances.
Then the argument would be, but it was not disproportionate by saying that it was not
disproportionate in a way the there is a shift of the burden, the burden now is the applicant to
show that it was not proportionate. You feel the difference? So that is the issue on the control,
the use of property and the taxes. And then we have the final category and those are the other
interferences with property law. It is a rest category it is whatever remains and sometimes one
may discuss whether if it would be possible to draw an exact line between control of property
and de facto expropriation (onteigening) in this kind of cases.
Consider for example a destruction of property, you could perhaps say yeah, destruction of
property is a form of de facto expropriation or maybe it is a rest category. It could be issues of
provisional transfer of goods. Well I am not talking about expropriation as such, but we are
talking about the possible expropriation to say as in the Swedish case: a situation where public
authorities decide that you will be expropriated. So, the decision is taken but is not executed
and is not executed for years but officially exists. Wouldn’t we think that can be
disproportionate for people, suppose you have to live for 50 years with the idea that from one
day too another they could say you have to leave your house and you know that this decision
has been taken…. If you complain about the specific … that is not expropriation. Still it is an
interference with your property right and so there again also this category will follow the threestep test: legal basis, public interest and proportionality principle. So you could have cases as
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in the Swedish example where the issue is loss, destruction. You could have cases of internal
displacement, those are of course terrible cases.
You could also have cases where state parties refuse your aim. You have a lawsuit against a
state party and this state party loses the case and then has to execute the judgment and this
could be a matter of pay back money to you, pay compensation, damages, whatever and they
did not do that. You could argue that is maybe an issue under art. 6 of the Convention, but you
could also argue that this is a matter of the rest category and that this money that was due to
you rights of preemption.
There is an interesting case on arts, a Van Gogh work where an Italian, owner of a painting by
Van Gogh decides to sell that painting and who would be so rich to buy this painting? Obvious
our Swiss friends so there is a Swiss new owner and he buys the Van Gogh only there is an
Italian rule that says that those works of a certain importance can’t just be sold like that without
informing the state. Now this Swiss guy knows that. So, he doesn’t say to the Italian state that
he is the new owner of the work. So officially the new owner is the Italian notary, so in the end
the work remains in Italy. That is what the Italian state thinks. They have a right of preemption,
but they are not interested in buying the Van Gogh and then the Swiss guy sees that the prices
have exponentially increased, so he wants to sell and then the Italian authorities intervein. They
say hay we learned that you are the owner of the work. How come we didn’t know. That
because you didn’t tell us about the fact that you bought the painting. Now we are interested
in the work and we have a right to preemption and obviously the Italian authorities say, “listen
we have right of preemption but we are not going to exercise this right on the basis of the new
price, but we are going back in time and do as if there was no increase of the price.
It is as if we do not take into account that during all those years this painting was becoming
more expensive. What should the court do? We have an investor and we have an Italian state,
and the court has to decide who was the one acting in best faith, although both of them were
acting a little bit in bad faith. But the court ultimately says this: in between 300.000 euros and
8,5 million euros that’s perhaps disproportionally, so here the court finds that there is a
violation and this violation is basically based on the idea that: okay, had the owner played the
game as it should have been he had to warn this Italian state that they had a right to buy a
painting at 300.000 euros. He didn’t inform. But the Italian state also when it have later on a
opportunity to buy at a more expensive price but lower than 8.5 million euros didn’t want to
do that. Violation says the court simply based on the huge difference between 300.000 euros
and 8.5 million.
But then again just to show you how difficult it is to find very clear big principles, think about
the other case, a case on debt adjustment (bankruptcy). You have in many countries and now
we have it is in Belgium as well, systems of debt adjustment (schuldbemiddeling ). Exists ass
well in Finland: case where a person was entitled to 20.000 euros and the person that had to
pay the 20.000 euros was in the situation of having many debts, and there was debt
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adjustment. This debt of 20.000 euros is reduced to 365 euros. The guy who was entitled to
20.000 euros goes to the Court and the Court says that is not excessive: so if you ask me, can
you explain why from 300.000 to 8 million that was excessive and why from 20.000 to 365 that
was not excessive, I can simply say I don’t know that. Do you have questions on that?
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Les 17 (06/12)
Eerste uur
Any questions on last weeks classes? Okay. I apologize I know that some of you want to be
elsewere, I mean that’s true for every week obviously but some of you definitely would like to
be in the chambre de representants, in the belgium chamber I understood and someone even
proposed, I read, that we suspend class and we stream the debate in the house of
representatives. I think that is a public law theme, and other students don’t think this is
importants so should you really be intrested you can stream it and you can follow it and follow
class.
In any event I think we have to continue with an art 6 issue, the right to fair trial, this is professor
Lemmens hobby but let we see were we get in 1 lecture. I think we can be relatively brief on
that, that is to say one class because much of what is in art 6 is obviously stuff that you may
have seen already in your classes on criminal and civil procedure and if you don’t, you have this
possibility next year in the masters to opt and choose elective classes on these specific fields.
In saying this I think I’ve already indicated that this art 6 issue and I think if you go to the stats
this is the most popular article in the case law of the court, it comprises two limbs. There is the
civil limb to art 6 and a specific criminal limb to art 6 because art 6 is a guarantee on what we
could call in a broad term the right to a fair trial, in two specific situations, one in a situation
and that would be the civil limb were there is a dispute on civil rights and obligations, or second
limb, on the determination on a criminal charge. This means that altough we could say that
both limbs are extensively interprative that there still are disputes that fall outside the scope
of art 6, I come back to that in a while but you often have lawyers or students who as a second
nature immediately say when they see something in a procedure, “yes but art 6” no be aware,
hold your beer, just check if you are dealing with one of the 2 limbs.
Let’s start in the first place with the civil limb, so in order to fit within the framework of the civil
limb, there are two conditions that need to be fulfilled. That is to say there has to be a dispute
over rights and obligations and these rights and obligations should be of a civil nature. So the
first thing that we have to know is “what is a dispute” and as I already told you a dispute maybe
it helps us if we look at the french word “une contestation” so there is a dispute, people are
contesting but what can be contested? There i would say that in most situations we are talking
about a typical situation in wich two parties are contesting the application of subjective rights
that is the paradigmatic-case. So those cases definetely fall within the application of art 6. That
doesn’t mean that it’s only about subjective rights it also doesn’t mean that it’s always a matter
of having two parties you could even have situations were there are disciplinary proceedings.
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Second point there is that according to the court, and this is very close to the admissability
criteria, there is an understanding that it’s not about every dispute it must be a real and genuine
and serious dispute, so this is really another expression of the idea “de minimis non curat
praetor” so you would not come up with few time disputes. Now the dispute has to be on rights
and obligations of a civil nature, the court, since it is a court dealing by 47 states really
developped an autonomous interpretation of the notion “right” if you are a little bit familiar
with comperative law you can easilly understand why because various legal orders may have
various slightly different understandings of the notions on what exactly is a right so the court
has develloped an autonomous notion wich is based ofcourse on our various european
traditions but it’s not the translation of one of the eu models. So in the hart of this notion in
the core you find the concept of subjective rights but it’s not neceserally limited to subjective
rights we find contestations on certain allowences for example in the case against Italy, the
Minipto case were there was a contestation about whether a father who recieved money as an
allowence for a disabled child and who had to, according to the public authorities, repay this.
Altough there was no subjective right according to the italian law to this allowence, the
contestation on whether yes or no this had to be refunded was a matter that fell within the
scope of Art 6.
A right that means also that according to the national tradition there should be an arguable
claim so it’s not only about potentional rights, about possibilities, about saying “I might have”,
no you need to bring up that the dispute concerns rights but rights that have an arguable
ground, the court is not going to accept purely hypothetical disputes so there is an autonomous
interpretation but the court is not going to extend this very common motion of rights to
extensively, that’s basically the point. It should be somehow realistic.
It’s about rights, it’s also about obligations, we can imagine disputes on obligations and here i
think that, well you could already say that perhaps obligations are the, and if you’re familiar
with the Howfeld analysis on rights and obligations you may object, but one could argue and
say one persons right is an obligation to someone else so maybe we should not always over
estimate the distinction between rights and obligations. But take very clear examples,
disciplinary procedures, what we would call tucht procedures, they’re about obligations
meanly, they fall within the scope of art 6 so here again we have cases against france for
example were you would have someone who does the booking thing in schools and were there
is a dispute on whether willingly or not whether there have been a fraud or not but where at
the end of the day it appears there is a problem with the booking and where in the end you
need to see that money missing must be paid back and that is a dispute on obligation.
So, these obligations are usually related to cases in the sphere of either professional ethics,
either really disciplinary sanctions. There is dispute therefore, alright, obligations of a civil
nature and the dispute is on these rights an obligation. What does this mean? Well, it means in
the first place, and that would be the most common understanding of a dispute on right and
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obligations, it is a discussion, let’s call it that way, it is a discussion on the application of the law.
Is there a right or obligation? Does it apply? Do you fall within the ambit of the legal rule? That
is a conversation, that is a dispute on rights and obligations. However, when it goes more
towards the discussion of the obligations or procedures involving the authorities, it may also
be a discussion where it would be not so much a matter of assessing, quarreling whether the
law applies, but where it rather a matter of knowing there are unlawful interferences within
the exercising of rights. That is the second possibility, And there we could quote again one of
the cases we discussed last week; the Swedish case., the spörum case. Where in the end, well
this discussed is not so much the expropriation in itself. But the behavior of the authorities that
“we are going to expropriate, but we are not going to do that immediately” and where this
behavior is an interference with rights of citizens. Similarly, these interferences are typically
also at stake when it comes to, ones again, disciplinary procedures. So that is why you have in
the case law of the court, those two situations.
Okay, the question now is; do these art. 6 guarantees apply to all stages in procedures? Because
we can have a dispute and usually first we start quarreling, okay. That is how it goes. First we
start quarreling, we have a row “you owe me this”-“no I don’t”-“yes, the law applies”-“no, it
doesn’t”-“there is a contract”-“you’re crazy”… In the end, how is this evolving? You all are going
to be lawyers, so, you know how this is going to evolve: either you find a solution without going
to a lawyer, that is always the best thing to do. Don’t tell it to the rest of the world, okay.
Because you would be very bad promotors of your own profession. But it is always the best
thing to do: try to avoid lawyers. And how could you do that? In the end, you could always try
to write letters, formal letters. Usually that has a kind of refraining effect, a chilling effect on
quarreling. And there is this magic formula, in Belgium law. It doesn’t mean anything, but that
is the way to stop this kind of endless, non-legal fight. And this formula is “ik richt nu dit
schrijven onder voorbehoud van alle recht en zonder nadelige erkentenis. Oh, if you receive
such a letter, one reaction is ”okay, let’s drop it and find a solution. Another reaction is “okay,
now I need to go and see a lawyer, now it is lawyers time. And whenever you end up saying it
is lawyer stuff, you are in trouble. So, tis only to show you that a dispute usually will of course
be pre-existing the legal procedure. Now if there is a legal procedure, then the art. 6 will apply
in all stages of the procedure where stages are directly decisive to the case. First instance, no
problem. Appeal, usually no problem. Cassation procedures, no problem. And one could even
say proceedings before a constitutional court, no problem. So, that is, let’s say, an important
question.
Second important thing to address is this. what then are civil rights and obligations? And here
again one could say it is not that obvious. Because why? Because we are in Europe, we have a
huge variety of legal systems. And, things may be different from state to state. What the court
did initially was to take rather an organic criteria. An organic criteria like saying “if these
proceedings are, in the national legal order, dealt with by civil proceedings, civil court, civil
tribunals, then it is about civil rights. However, we need to nuance there.
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First point is, I mean, as I told you, it is clear from the intern perspective that the contestation
is of a civil nature, because it is obviously civil rights, then there is no problem. If it is dealt with
in a civil tribune, then there is no problem. But there are states, or there are fields of law, where
you could say “hmm this is a complicated one”. Because there are both civil and public law
dimensions. And here the court, will have to deal and have to balance. Suppose you are in a
case where you are claiming a compensation because of torts committed by the public
authorities. This would be typically under Belgian law, and this would be, by the way, ladies and
gentlemen, the advantage, should the government fall, I am not saying nothing, but suppose
this would happen. Then most supposedly, all those reforms of the civil code, it would be
something for the future. And what is the advantage? The advantage is that the public law
lawyer, can still talk about 1382. If minister Geens get his reform, total will not be any more
1382. I know only two articles, well let’s say 5 articles of the civil code, and a friend of mine said
last week “of 5 articles, so you made progress in the meantime”. So, this would be 1382 cases.
So, in the Belgian law, you all know this. If you are a victim, suppose you are walking back home,
you walk through the park. Just a walk in the park. Going to your kot, that’s a walk in the park,
going to Marrakech, that’s something else. But you go to your kot, through the park. There is a
tree falling on you and you nearly escaped but your laptop is broken. So, what do you do? You
bring a case against the city of Leuven by saying “hey you made a fault, a tort. If you open a
park, it should be a safe place” and so on. “And now I suffered losses due to a lack of
maintenance” and so on. If you do that, that is typical under Belgian law, civil law. 1382. And
there would be no discussion because it is a civil court, court of first instance dealing with it.
No discussion possible. Now, are there French friends? Are there French people here? They
were here. So, in the meantime, they decided not to attend anymore… hmm… La vengeance
est un plat qui se mange froid. Joke, joke, okay. Should there be French people here, they would
confirm that this would be typically a case to bring not before la tribunal de grande instance,
but that case would be brought before the tribunal administrative. Which is a public law court.
So, there is definitely a public law point. But here, so you see, is about a compensation but is
before a public law court.
So in such case the court has to bound and to decide what is the most, the heaviest point. Is it
the public law, than it is not a civil dispute we are talking about. Not a dispute on civil rights. Or
is it say, the more public and private law. And they have to decide on that.
What we see is that this article 6 had, the scope of article 6 has been widened. So it is perhaps
easier these days to say wat false out of the scope. And here you have a recognise because it
is the heart of sovereignty, it is the heart of the privileges of the state.
This speaks of actions outside the scope.
Very typical. Entry a removal of aims. You always find students and lawyers debating on the
basis of article 6. You can argue, and this is something our secretary of state is, I would say
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experienced. He experiences this every day because when you argue on the basis of the
European Convention, it would be discussions on article 3. Sometimes on the basis of article 8.
But if you can, let’s say there was a problem on the basis of article 6, they would say, well the
court would say, this is not a matter of the scope of article 6. Okay? It falls outside the scope of
article 6.
We question this, and maybe, we should continue questioning that, but it is what it is. I
remember years ago, I think it was my first case I did as a training lawyer at the bar, and it was
this pour family of people and they were refused status of asylum. So they were refused refuree
status and then they appealed and appealed, and than their lawyer forgot to appeal and in the
end they came, and they were completely hopeless. And then I looked at it and there was
nothing to do, and then I decided. And I said “Listen”, because basically these people asked for
the regularisation of their illegal status for humanitarian grounds. And it took time, and it took
time. And this is a violation of article 6. And my argument was, I know that this falls theoratically
outside the scope of article 6, but as soon as there is a procedure, put in place by the
authorities, where there is an administrative appeal review possible before the Council of state,
then it follows that this procedure should be in line with article 6 and should respect, for
example the fair delay. Okay? It should not be an excessive delay.
I was so proud to find that out so I made my application and I sent it to Strasbourg. I was
extremely naïve. So after 3 months, there is this big brown letter coming from Strasbourg. So I
opened it. And it said whether I didn’t know that the court had already said so many times that
issues on removal and so on and so forth, fall outside the scope of the Convention. But maybe
we have to continue making those points, I don’t know. But in any event, removal, entry,…
Theoretically it falls outside the scope.
Why was I making this point? Not only to entertain you a little bit because this class is so boring.
I was also making that point because we can see evolutions. And we can see evolutions in for
example with civil servants. Where theoratically as well, the right to be a civil servant and the
positions of civil servants, and the rights of civil servants, were excluded from article 6 issues.
This because of, once again, it was conceived that the fact of being a civil servant is something
that is related to sovereignty, and therefore the privilege of states. And here we see an
evolution.
And now the court, and that is in the famous Escalin Case, the court in a way reversed the, I
would not say the presumption, but they still accept that the feelings involving civil servants,
on disputes on civil servants status, are excluded from the appliation of article 6, but only if
states have, in their internal law, explicitly banned them from these procedures. And two, if
there is an objective reason for the states to do so. Okay? So you see that there is a change. So
that is basically what we need to say about the civil lit, in terms of describing and giving the
definition of what is the civil lit.
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Than what is the criminal lit? Okay. And here again you will see that what is in court, is quite
clear. What the orders are of the criminal lit, is perhaps subject of discussion. Indeed, article 6
says that it applies procedures concerning the determination, one thing, of criminal charges.
So the first point is, what is a criminal charge? A criminal charge obviously is what you find in
criminal law. That is obvious. So the classic criminal charges. However, it goes beyond. You can
have disciplinary charges, they come very close to criminal charges. And they may be covered.
You would have administry fines, and they may be covered. What is the discussion about it?
Well, the discussion is about avoiding in a way that states start using their internal legal
frameworks, and their internal legal system to escape the application of article 6.
Suppose, you are a state and you know that if you use classic criminal law, you are under the
obligation to apply article 6. But then you say: “Hey you know what? All those students on a
Thursday evening they go drink and drink and drink and than they cause a lot of trouble, and if
I am going to use criminal law, the problem is that they are all going to claim that they have
rights under the Convention, under article 6. You know, I am going to be smart, I am not going
to give them criminal fines, I am going to create local rules, administrative rules. And I will fine
them but I will call it administrative fines.” And then I say: “what? Article six issues? I don’t
think so. Because it is not a criminal charge. It is an administrative fine. Isn’t that smart?”
That is what basically the court wanted to avoid. Circumvention of article 6. But on the other
hand, the idea of circumventing is allready in a way implying kind of bad faith. But that does
not mean to be bad faith in any event. I mean, it could also mean the case that there are
administrative rules applying with fines, or that there are discipline procedures in bona fide
with fines and that people say “Isn’t that a little bit as if it were a criminal fine”.
And therefore the court applies what is called the ‘Engel criteria’ from the Engel case. So to
distinguish administrative or disciplinary cases that fall outside the application of article 6 and
those who fall within the application of article 6 the court has three criteria. The first is the
internal qualification of the domestic law. If according to your domestic law we are dealing with
criminal law then article 6 apply is special. However if under domestic law it appears that we’re
talking about administrative law for example or disciplinary sanctions, then we’re going to have
a look at two other criteria. That is on one hand the nature of the offense. So is this an offense
that is targeted at a specific part of the population, for example members of a certain
profession, then it will rather be disciplinary sanction. However if it’s rather a matter of general
provisions, abstract provision applying to everyone, then it will be of a criminal nature. If it’s
about the non-compliance with administrative formalities then it will be administrative law. So
that is a first a guideline. Yet the problem isn’t solved. There is a third condition and that is the
severity of the sanction. Because if the sanction is very high in terms of the amount of money
someone has to pay or whenever there is a deprivation of liberty than the court will say it is
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criminal in its nature. Take an example of tax orders, you could imagine some studies where
the finance or the sanctions are not respecting administrative taxrules, the sanctions are
extremely high. Then here, suppose you’re sent down to jail, the argument that the state would
come up with by saying “hey this was a matter of administrative law only” would not work.
Because the real nature according to the court is that this is a criminal sanction. Therefore
article 6 applies.
What does article 6 thought to apply? On which stage? If we’re talking about the determination
of a criminal charge then article 6 applies at the moment as a matter of principal. In a way you
could say at the stage of the police and the prosecution, article 6 as a matter of in general does
not apply. However, and there you see that it is always in article 6 a matter of general rules and
exceptions, the court does not rule out the possibility that article 6 applies already before the
trial stage. And this depending on the fact whether this pretrial stage risks to seriously
jeopardize the fairness of the procedure. And this is what typically is at stake in the famous
Salduz case.
You must have heard, did you hear of the Saldus case? So the Saldus case was typically a case
that would be the European version of the American Miranda, now you know in America under
American law, the Miranda law, even if you do not study American law you all know that,
because in every detective series, in every movie, there is this ‘you have the right to remain
silent, everything you can say may be used against you …’. That is the Miranda. So you can learn
a lot of law watching television. This Miranda law that really comes from an American court,
and it would be very interesting to see police series before the Miranda ruling whether how
they did that, but this Miranda law has as its European counterpart somehow the famous
Saldus case against Turkey where a youngster had been arrested, had been interrogated in
Turkey, and was not assisted by a lawyer. And then made statements and declarations and then
the trial went on and it appeared that what he said without being assisted by a lawyer seriously
jeopardized or put into danger the overall followings of the procedure. And that is the case
where in fact the court has said or which has been read as a case where it was said that
everybody has the right to be assisted by a lawyer at the first interrogation by the police. And
then, but that’s a small detail, it was a case against Turkey, a lot of states did not react, most
probably because they said ‘well it’s a case against Turkey, we’re not concerned’. So you got
very quick, you got other cases following Saldus. And then all of a sudden it was applied to other
states such as France and Belgium. And everyone was saying now ‘ooh we didn’t see that
coming up’. And then it was too late. But in Belgium for example we now have this, and if you’re
a lawyer and if you’re going to go the bar as a trainee, you will do the so-called ‘Saldus
permanentie’. And it’s like you have to be stand-by during the weekend or whatever, and for
everyone that is arrested you have the right to have a lawyer. And then you have your prodeo
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lawyer and by the way I learnt, it’s highly contestant, there were recent debates on the socalled poor quality of the lawyer’s assistance, I don’t know whether this is true, but what I heard
from people doing cases for example of rape unfortunately, they said that since the Saldus rule,
it becomes much more difficult to condemn people because they said previously, presumed
you have raped someone, you will say I have never seen that woman. And then little by little
‘yeah ok I saw her but it was with mutual consent’. But of course you can see where there is no
proof and you have someone who simply all the time has to adjust his declarations, loses
credibility. Now on the first meeting apparently, this is what some lawyers told me, these
lawyers say: ‘yeah yeah you can just say that you met that particular woman, and that there
was mutual consent”, so these guys say ‘yeah obviously we had sex, there was mutual consent’.
Also it becomes a case where it’s one person saying something against another person who is
saying something else. It is said that is this is the perverse effect. I don’t know whether this is
true, I want to be very careful but this is something we should, maybe do some research on the
perverse effect of Saldus. Belgium you may have seen some weeks ago has been sentenced for
not respecting the Saldus rules in the grand chamber case against Belgium. Precisely because
someone was by side court but did not have the benefit of an assistant of a lawyer at the
beginning. So this should be kept in mind. That’s the begin. Clearly, it also applies or article 6
continues to apply until the final decision is reached. So here we have in a way the description
or the analysis of the general principles, the scope, the civilian and the criminal, of article 6.
Tweede uur
What then, are the rights that follow from article 6. Well first, and probably the most important
right, is stickily enough the right that is not mentioned explicitly in article 6, is the right to a
decision by a court. But in the Golden case, the court decided that this right is explicitly
guaranteed by article 6. This right to a decision by a court, the right to a court. This right to a
court has 3 aspects.
1. Right to access to a court
2. Right to a judicial determination of the dispute
3. Right to respect the final conclusion
Let’s have a look at each of these three aspects.
1. Right to access to a court.
The first aspect is the availability to a court. That means, in the first place, that there has to be
a court. That there is the availability of a court. That court should be a court that is competent.
In the first place it is competent to decide, either to determine the civil law discussion/the
dispute on civil rights and obligations, either to decide on the criminal charge.
So there must be a court. But there also must be a direct access. This is the second aspect.
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There must be a direct and independent access to the court. This means for example, we had
that in some cases concerning for example disciplinary procedures where a engineer could not
bring procedures unless his professional board would take on the case. Sometimes you have
impossibilities for incapacitated persons or partly capacitated persons to bring cases to a court
on their behalf.
The third aspect is that, since we all know that the Convention is not about illusionary
theoretical rights, but about effective rights; that there must be an effective access. And here
comes in, obviously, aspects such as the right to a pro deo lawyer, free legal aid for those in
need. Here also comes in the obligation for states to have legal proceedings that are sufficiently
clear. You can have time bar(red) rules, but they should be effective and clear. So a discussion
on whether I can bring my case before a court or whether it isn’t to late. That is not in line with
these obligations.
This is not to say that limitations to access to a court aren’t possible. Obviously, they are
possible. However, whenever a state thinks about limiting the right to access to a court, it
should always bear in mind three things.
1. The limitation should not go that far that it affects the very essence of the right
2. The limitation needs a legitimate aim
3. The limitation needs a proportionate link
What then are examples of accepted limitations? Well think about rules concerning
prescription of cases. The fact that you need to act within a certain period of time that is as a
matter of fact acceptable. The fact that people that are completely capacitated need to act
through someone representing them. That is acceptable. You could have rules on specific
procedures where you need special lawyers. This is acceptable. So not everyone is going to the
Court of Cassation for example. You can also have immunities, think about parliamentary
immunities. We now have a very vivid parliamentary debate. Suppose that in this debate some
of these members say “this KU Leuven professor Koen Lemmens is nuts for saying this and
that”. I wouldn’t be able to bring a case against that, it would be parliamentary speech, freedom
of speech. I cannot complain about it and say it would be a violation of article 6 and so on. It
would be accepted because of their immunities. The court has case law on parliamentary
speech saying that you should not extend parliamentary speech to much, because that means
that you are restricting the access to a court of people that are victims (or think they are victims)
of parliamentary speech. Okay? So very important. The council of state, the supreme
administrative court, whenever you go practising you see that it is one of the harshest tribunals
in Belgium. This is so because they have such a huge influx of cases. Once I witnessed something
that was terrible. I don’t know whether you are familiar with the council of state, it is in Brussels.
And it is in between two huge streets and that is where you have traffic for hours. So you have
this audience that starts at nine and you have the first case presented. Now you have a lot of
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rather cool judges and they say in the first case ‘are the parties present?’. And if someone got
stuck in traffic they go on to the next case. And they will pick that on, later when they arrive.
But I witnessed, I was present once, when a judge said ‘okay, so they are not present at the
audience? So this means “ex officio” loss of interest in this case, so case dismissed”. Can you
imagine that? When it was said that the lawyer is looking for a parking place, he got stuck in
the traffic. Now this kind of things, the court would consider this ‘excessive formalism’. So
formalism is accepted, but you should not be exaggerating.
2. Right to a judicial determination to of the dispute
This means that the discussion should be put to an end. (Latijnse uitspraak) that is the idea. So
it is about having a binding decision, about courts having the last word. Now the question could
be, courts are having the last word, that is fine. But should they also have the first word? In
other words; is it omitted that public authorities establish a system where by, let’s say in the
first stage you have another court dealing with the discussion. But you have for example an
administrative body doing that. This is acceptable if there is a in a second stage a check by a
tribunal having full jurisdiction. So a tribunal that meets all the requirements of article 6 and
that has this full jurisdiction. The question whether full jurisdiction also implies whether that
that tribunal can replace the decision-appeal against its own decision is something that remains
open. For the Court it is sufficient that there is a judicial review that allows for taking into
consideration all points, be it the factual point, be it the legal point.
3. You need to have respect for a decision.
So you have an outcome, you have a decision. You can go to a court, it is an effective court. It
is available, it comes up with a decision. You need to have respect for that decision. It is a final
decision. Or in other words, even when it can be appealed against, the idea is that legal
decisions cannot be changed anymore. That is the idea that at a certain moment. In former
communist countries there was the possibility for a public prosecutor whenever there came a
case and a final decision that didn’t fit within the ideology or the idea what the state wanted,
the prosecutor could start a procedure to reverse the findings. That is now impossible. The legal
judgement is inalterable.
And the decision has to be executed in good faith and in due time. And in civil cases we know
that the state sometimes try not to act, but they should act. We have cases against Greece
where it appears that someone wanted to organise a private language school and that the
authorities didn’t want this, and then there were preliminary rulings that they had to accept
that. And then not more than five years later, the English speaking person that wanted to
establish that school still didn’t have the permit. That is of course not the go of the procedure.
Similarly in criminal law procedures, we know and we already discussed this very idea of
reopening of criminal procedures. This idea that if you have to be released from jail when you
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are acquitted, also this has to be applied. When you are acquitted than you are acquitted. They
cannot keep you in jail. Or you’re trial was found by the Strasbourg Court in violation with article
6, we know that this idea of reopening to guarantee of a new fair trial. This is the general
perspective.
Now, if you go and have a look at the more structural and procedural guarantees. You see that
we need to say something about the very concept of this tribunal. What is a tribunal? A tribunal
is an institution that is correctiolized (?) by its judicial faction. Claims according to domestic
legal system are brought before the court and it’s an application of the legal system to the facts.
Dabi me factum, dabo tibi ius (?). that is the idea. So you have this institution, but it has to fulfil
some requirements. Requirements in terms of independence, in terms of impartiality, in terms
of the duration of the procedures. So there are in most part mentioned by article 6. The most
important thing perhaps, the tribunal has to be established by law. And here, this is one of the
few cases where the Convention really points at a act of parliament. That’s a guarantee. No
exceptional tribunals. No ad hoc. But a clear legal procedure. A clear legal establishment of a
tribunal determining what it is competent for. That is a first guarantee.
That tribunal has to be independent and impartial. Now independent means that a judge or the
members of the court can decide according to their consciousness applying the legal rules. They
apply the legal rules to the facts of the case in a way they think they should be applied. Without
being pressured. Pressure that could come from the parliament or politicians. This is not what
we are going to accept. This pressure could also come from the media. Which usually is in a
way avoided by creating specific rules or the possibility of journalism and media coverage of
trials. And some states, such as the UK, have very specific and complicated rules on content (?)
of court in media outlets. This is to protect the independence of judges.
It is not only a matter of having a independent tribunal, but also a matter of having an impartial
tribunal. Judges being impartial means judges that do not have prejudices or biases. And here
we have to distinguish between a subjective and a objective notion of impartiality.
The subjective notion of impartiality. When you really think that a judge has a personal issue
with one of the parties. That is a personal interest. It has to be proven by one of the parties. It
has to be a little bit serious. Not saying for example that the granddaughter of the judge plays
football with the son of the defendant. So in a way the personal impartiality of a judge is a
presumption and can be rebutted, but there has to be prove.
The objective impartiality is from a structural nature. this could make the public believe there
is a general lack of impartiality. And that therefore the general confidence in the legal system
is jeopardized. Can this be objectively justified? In Belgium we have had problems with this
structural impartiality, in cases such as Pierre-Sac or the capre. If someone has been actively
been persecuting a person and later on becomes a judge and that same person you’ve been
persecuting comes before you.. this is not impartial. Cases in Turkey where there was some
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kind of relation where someone was subjected to a procedure because of spreading pamphlets
that were perceived in favour of the minority and therefore were seen as a menace for the
integrity of the territory. And then there was seen that the case was subjected to a tribunal and
one of the judges was in a military. He was in a hierarchal relationship of one of the parties that
was supposed to defend the territorial integrity. One could ask whether this relation was
problematic. According to the Court it was.
You could think of situations where there are problems because of communicative functions.
The procedures of council of the state they have an advisory section and judicial section where
they really decide on cases. There was a case against the Netherlands where someone said
”listen, we have a discussion on a individual permit.” And because de council of state is dealing
with that and already has giving its opinion about the law on which the permit was based. Isn’t
that a little bit tricky? And that court found that it wasn’t that problematic. So that problem
has been solved. You could even have cases where subjective and objective impartiality
interferes. Look, the major problem is the case of the structural/objective impartiality and not
the case of the subjective impartiality. For those who are following the procedure on the
Belgian football case, they may understand how rare questions to revoke on account of being
personal involved are. For a judge being called into question on account of being objectively
partial, is not felt as a personal attack. It’s part of the job and not a big point. Whenever
someone says ‘you are subjective partial’ that is felt as a personal attack. Although sometimes
you see cases where a judge says ‘this is not a case I’m going to take’. But I think this is also a
matter of sometimes personal ethics.
Having a judgement is usually also accompanied by the idea that there is a right to a public
hearing and a public judgement. Please do not take this idea to literally. People should be
guaranteed the right to transparent jurisdiction. There is no such a tragedy as secret
procedures. The main guarantee of a trial is that you could walk in, on every day. That is the
idea of having a public and open hearing. But states can restrict that right. Now there is a
written procedure, but parties can say that they want a public hearing. There are cases being
related to sex crimes, you can easily imagine that those ‘in camera’ hearings can be behind
closed doors. Similarly the pronunciation of the public, this is not to say that judges should read
out their judgements in public. What it means is that case law should be publicly accessible.
Nowadays the internet is the place to be. In the Netherlands, you can go to rechtspraak.nl. it is
a wonderful system. Everyone has access to it. In Belgian it is less easy to find a case. Belgian is
a scandal, there is nothing so difficult as finding a case. This is a huge problem.
Little by little we are going to the rights of a fair hearing. A fair hearing means that in the first
place the parties should have the right and the opportunity to present their case and defend
it to their best knowledge adequately. It also means that the court seriously takes all the
arguments presented into account. It does not necessarily mean the court has to answer all the
arguments, but it means the court has to hear it all and take them into account.
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What is this right to a fair hearing in globe?
1/ The right to take part into a procedure. It means that you as a party are at least properly
informed about the case. You have adequate and sufficient time to prepare your case. It also
means that the parties, or that there is a adversal character of the procedures. You know what
the evidence is, you know what the documents are and you have the right to a consultant and
to command upon. Once again, this right is not an absolute one, it can be restricted. This is for
example very true in criminal cases. Although states have to be very careful, but we can imagine
cases where there is a restricted access to the criminal file. And why would that restricted? To
protect witnesses for example, to protect people concerned. This restricted access should be
sufficiently be counterbalanced by other rights in the procedure. What should be avoided is
that you are sentenced because in a secret way they have evidence against you and were not
able to know that and to defend yourself against this evidence. See a little bit what happened
in cases such as the velardi lombardi case (?), we discussed earlier on. This discussed the idea
‘oh there is this letter, this guy is not teaching catholic doctrine as it should be, oh I can’t defend
myself’. You see the same logic here
2/ It also means that you should have the possibility to react upon submissions made by
advocate general or independent judicial offices. That is what we learned in Belgium for
example in the Borgers case and in France in the administrative procedures in the creche case.
You may know that in the French administrative procedures there is an actor and he is called
the commissaire du gouvernement. And this commissaire du gouvernement has almost a
similar function to what a auditeur does in the Belgian supreme court. But in the French Council
of State, parties couldn’t react upon the findings and the opinion of the commissaire du
gouvernement. Well, that is a violation of article 6. If, for example, you bring a case on damages
against the press for a breach of privacy of reputation, than you go to a judge. They listen to
you and then they say ‘according to the civil procedure the public prosecutor will give an advise
to the court’. This is considered a protection of the freedom of expression in Belgium. You will
be called to come and to listen. You as a party have the right to commend, but brief. The idea
is not that you start all over again, so be brief. This is an aspect of this hearing.
3/ Equality of arms. Both parties should be given an even opportunity to present the case. There
should not be any substantial disadvantage between the parties. This is typically something that
could be problematic in criminal law, but it could also be a problem -when the public prosecutor
is given a more favourable case than the parties-. But equality of arms may also be a problem
in those cases against public authorities. Where public authorities change the law during the
procedure, when they notice they are not going to win and the case is going the turn out bad
for them, change the system change the law. This is a violation of the equality of arms. You
can’t just change the rules during the procedure.
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4/ then about evidence. Evidence is an important issue in both criminal and civil law. The
Court/Convention is not creating its own legal system. So basically what it says is that the rules
on evidence are a matter of domestic law. However what we see is that there is a lot of
discussion on the way evidence (especially in criminal cases) is obtained. The position of the
Court is a position of general fairness of the procedure. So, we know that some ways of
obtaining evidence are more question begging (from a prospective of the Convention) than
other. Anonymous informers to give just that example. What about the provocation of police,
police that try to trigger crimes. Is that permitted? It’s tricky. Even there we have to bear in
mind that there are situations that are worse. Situations where evidence is obtained against
the law. Illegal phone tapping for example. The question here is; what do we do when there is
a violation of internal domestic law? The court would say – like in Antigoon case law- well let’s
check it on a case by case basis in light of the whole procedure. It does not necessarily mean
that because there is illegal evidence that the whole procedure is void. And the same goes for
cases where it is argued that human rights are violated, but here there is an important element:
obviously, what we can’t accept is evidence obtained through torture, inhumane or degrading
treatment. Whenever there is a violation of article 3 of the Convention, the procedure will be
automatically immediately unfair.
5/ Let me for today conclude by the last point and that is the giving of reasons. Should a court
and to what extend should reasons be communicated. It’s an important element. And why is
that? In the first place parties should understand why. In my experience as a lawyer, people
never want to know why they won the case, if they win the case it’s like a student who passed
an exam. A student will not be questioning why they had an 18, but they will just be glad they
passed. You won, you won. People want to know why they last the case. That is important. And
how could we think about public scrutiny if the reasons/arguments are not given in the case.
So it is important, especially for professional judges in the first place, that there is a formal legal
reason giving. For professional judges this should not be too complicated. They argue, the
downstate why they reached the conclusion they reached. The question is what should we do
with courts where there are laymen’s? see the Taxquet case against Belgium. There it is said
that a jury of laymen’s is perfectly acceptable. And that, although they should not necessarily
come up with a formal legal argument, people should still understand why they were convicted.
This can be, not necessarily must be, the result of either because you impose on juries the duty
to formally argue and give the reasons. But it can also be obtained through other mechanisms.
There again the court is going to see whether in the specific procedure there were sufficient
arguments and guarantees that permitted someone to know ‘why was I sentenced’. You must
be able to understand that. That is an absolute must.
Any questions? Was that clear? Then I see you tomorrow.
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Les 18 (07/12)
Eerste uur
Good afternoon, before we move on I’d like to make two comments and corrections to the
previous class. Last week, at the very end of class, I said that there was a difference between
something that is disproportionate an something that is not disproportionate. So, approaching
something, a question, analysing an interference, hands on. “Is it proportionate?” Is something
different than analysing the same interference with perspective “is it disproportionate?”.
Right? And I said that, and it was a very clumsy way of expressing it, I said that it is a matter of
proof. Obviously that’s not a matter of proof. That is a matter of appreciation. If you have to
assess whether something is proportionate and you say that something is proportionate or
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disproportionate than you have been looking much more closer with this trick that you have
been applying, a more strict scrutiny than when you have a look at something and say: this is
manifestly not disproportionate, okay? So it is not proof that I had to use, but scrutiny was the
word I should have been applying. So that is one thing.
A second thing I wanted to discuss, to complete, is this idea of (?) Where we said there might
be a constructional problem, the court could put cases in the fridge. And then after 2 years,
and im telling it now because, you may have heard that the pilled judgement concerning
Belgium after three years are passed yesterday. So the court will be taking cases out of the
fridge and that seems what is going to happen. And there seems to be some discussion, as I
already told you, also now a discussion with Paul Lemmens about what should happen with
cases that have been put in the fridge when the structional problem in the meantime is solved.
And they will probably be struck of the list, but it is not that clear that they just be struck of the
list and that just without any possible regress. There may be a pressure of the court that they
struck the cases out of the list on the condition that the state does an effort, makes an effort
in terms of more redress or compensation. Okay? So it’s not that black and white. It’s not a
matter of, you know, problem solved and two people whose case was put in the fridge now
say okay the problem is solved so there’s no need any more to go into your case. Most probably
this will be indeed the fact: no need to examine the case, it is struck out of the list, but it seems
that this will be done together with a compensation. Okay, so that was the newest information
I got.
Okay, let’s move on. Any questions on yesterday? So yesterday basically we discussed article 6.
The civil link and the criminal link, the rights enshrined in article 6 and I think that now in really
a nutshell, because this will be discussed at length in your criminal law class, so Paul Lemmens
has always been indicating some important points in the criminal cases. So, some specific cases,
guarantees that typically apply in criminal cases. And I think, yesterday, we already discussed
this and I said ‘Miranda’ that is enshrined in the European convention. ‘the right to remain
silent’, the right/privilege against self-incrimination, so to not incriminate yourself. That’s an
important thing.
There obviously also a very important thing that is the presumption of innocence. The
presumption of innocence, whereby, as we all know, people are supposed to be innocent until
proved guilty. And obviously this case, this presumption of innocence is directly linked or
related to the discussions we had yesterday of impartiality. Judges are not supposed to voice
their intimate believes on whether people are guilty or not during the crime. The presumption
of innocence is also very much debated and discussed in the context once again of information
to the people. The presumption of innocence and the media is often a problematic issue. The
court’s position there is a very subtle one. The court basically says that what is allowed is that
authorities, even authorities, can communicate that there are indications that a crime may
have been committed. But what is not allowed is that these indications are presented as
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statements of fact or as truth. And obviously you will understand that this is a very thin line.
But the Strasbourg court understands, as so many of our national courts understand, that there
is a, as soon as there is (even pre-trial) an investigation started against someone, that already
could be seen as an interference of the presumption of innocence. Because they think there is
something, but we can’t avoid that. This is how the criminal system works and the court
understands that there may be needs ( society needs, informational needs), that make that you
have to inform the public. And I would say this is all the more so in a an area, as ours, where if
you don’t inform people, people will use social media to inform themselves, which can even be
worse. If there is a police car at my office, I may decide not to tell you the story, or the police
may decide not to communicate about it. But you all passed so you take pictures, it will be on
the social media and people will say “have you seen that? That judicial police by the office of
the human rights professors? What have they been doing?”. And maybe you start imagining
terrible things and maybe it is in the interest of the concerned persons that there is a
communication, but this must be very careful and there are cases, there is a lot of case law.
One of the famous cases is a case against France. The Ribemont-case where if I’m not mistaking
where is was even a member of government giving a press conference expressing his views on
someone who was on trial. Saying this guy was probably guilty and where the court found that
this was a violation of the presumption of innocence. So people have to be extremely careful
whenever they communicate on trials, on cases and particularly so when they are in official
positions. For the media that is a little bit different. It goes without saying that the rights we
have already mentioned yesterday such as the right to get information of the very beginning
and nature of what are you accused of exactly, apply all the more to criminal cases. The fact
that you should be given a proper time and opportunity to defend yourself, is obviously all the
more important in criminal cases. Legal systems can have specific rules on whether persons
must be present on trial, but they should be very careful to not jeopardize of the accused to be
properly and adequately defended. So having a lawyer present and then not hearing the lawyer,
saying “we don’t hear you, because the accused person is not here” may be as was the case in
Vangijzegem (denk ik) against Belgium. This may be a violation, can constitute a violation of art
6.
I already told you, especially in criminal cases, think about how it applies in the pre-trial phase.
In criminal cases the examinations of witnesses is of course very important. On the one hand,
and this is something you may have discussed, or you are going to discuss with professor
Panzavolta in criminal law. One the one hand we know that witnesses are fundamental in
criminal law. on the other hand, precisely because we are dealing with criminal issues and
people that have perhaps, how do I have to express this,.. perhaps do not shy away too much
from violence. You may need to protect these witnesses against the people who have
committed violence or whatever. On the other hand we also know that it is problematic in
terms of secret justice that people would have to defend themselves against who? Against
anonymous accusations. Would you believe, to be very provocative here, would you believe
that: suppose that you are accused of academic misconduct, misbehaviour and you are brought
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before the dean who may suspend you and this is possible, would you believe if he said “we
have a witness who saw you doing this or that”? And maybe your first reaction is to say “this is
not true, I want a conversation, I want to discuss this with the person, I want to defend myself”.
Would we accept in those cases that the dean says ‘im not going to tell you who the witness
was’ and there wouldn’t be any possibility for you to discuss, there is no debate. I don’t think
we have to be specialized criminal lawyers to understand that if we are not very restrictive of
this kind of practices that there is a huge risk of abuse. How would we distinguish between
serious cases where indeed you have a risk and you have a witness that you need to protect on
the one hand and on the other hand where there’s no witness at all. But where authorities
simply want to punish you because they have reasons to do so. You see the pint. So at least you
should be able to defend yourself; but once again that is not to say that there can’t be
procedures of anonymous witnesses so the court accepts it but wants them to be
counterbalanced by sufficient guaranties of another nature. So that in the whole of the
procedure the risk of violations of art 6 is seriously limited. So the first thing is you cannot simply
as a matter of principle assume that you can say ‘oh I don’t want my name to be known or I
don’t want to be present in a cross-examination’ and that be sufficient. No, you have to have
very good reasons for the nonattendance of the witness. And these very good reasons can be
obviously because witness can be dead and if the witness is still alive it is a matter of pressure,
of fear for life, fear for violence and so on.
And, second point there must be sufficient counterbalancing guaranties in the national
procedure to avoid any misgivings on that.
In criminal cases you also have, obviously the issue of interpreters. So there again the legal
issue of interpreters is very important. And we know that should you be interested in this
profession of legal interpreter, know that Belgium has a terrible reputation in paying them.
Now it all, I learned that it is all solved, but for years they had instances that they during months
and years weren’t paid. So this is very unfortunate because they play an extremely important
role in the criminal procedure.
Last important point perhaps here, and not only in criminal procedures, but both in criminal
and civil procedures is the important issue of the delay. We have guaranties under art 6, that
is very good and we are very happy with that, but perhaps the most important thing is if you
go the bar one day and if you will be dealing with cases and with persons involved in
procedures, in trials, you will discover how in a way, the word is too strong, but how traumatic
this is to many people. Being involved in a lawsuit, a civil one, an particularly a criminal one that
is for most people who are not lawyers a very burdensome activity and we should be, try to get
this a short experience as possible. And in some countries this is possible. I once got involved
in a civil, commercial dispute, to quote from the convention, in the Netherlands and I told you
yesterday: the Netherlands, it works. It is quick, it is swift, it is fantastic. And within let’s say,
one year, 14 months’ time you get your change. In Belgium, I don’t dare to say anything. In
Italy, vassamo multo lantoma, it takes an awful lot of time. These are serious problems.
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Now, obviously it would be a little bit exaggerate to say that it is always and only due to public
authorities. So in assessing whether the fair and reasonable time limit has been exceeded the
court is going to examine or assess some criteria, important criteria. The first point of course is
to decide when we start to count, when is the time limit running. In civil law cases this is as
soon as the claim is filed. In criminal cases this is as soon as the person is charged, officially
charged. But it can also be before the official charge but right from the moment where let’s say
you were as a person substantially affected by what happened. So that is a first thins. There
already you see that it is a little bit open to discussion; less so in the civil cases, more so in
criminal cases. Suppose that you have been first interrogated 15 times and after 1.5 years you
are officially charged. When does this time start to run. Is that when there is an official charge?
And you will say “no no no”. because already 1.5 years before it started and it was not just one
interrogation, there were 15. So this really affected me seriously and personally. So in such I
think there is good reason to say “well, were not going to take the first interrogation to start
counting, but we can’t wait to start counting as of the official charge”.
When does the delay end? Well whenever the procedure is closed, I would say. Including the
appeal. Or what is also taken into account is when are possible enforcement procedures. This
is important because, as you know, it affects, or it impacts on the admissibility criteria. We
know that you have to exhaust normally local remedies before going to the court, but an
exception to this rule is whenever you are complaining about the length of proceedings. If there
you really see that the reasonable delay has been exceeded you don’t have to wait until your
case is finally decided you can decide to go the Strasbourg court earlier on. So, this is possible.
Now assessment then, how does the court assess this excessive length? And here I must say
that it is a little bit (?). I’m not going to say is on a case by case basis but it is very difficult, I
mean it’s not Arthur Dievre applying an algorithm and a computer deciding if we put all factors
in all this then we have exactly the number of months, days, hours, seconds to decide whether
there is a violation. That is not what is happening, so it remains always a little bit open, but still
the court puts forward some criteria. Obviously, one of the most important criteria is the
circumstances of the case. That means ‘is it a complex case? ‘ we can imagine that if you have
a very complex case, complex because there are many parties to the case, complex because in
terms of fact finding it was very hard, complex because it was legally speaking something that
was nog straight forward than obviously, it goes without saying that the court can accept that
it takes longer. The court would say, in normal circomstances: 1 year per instance is an
acceptable delay.
What is important is, and sometimes this is forgotten, is the behaviour of the applicant. You
would be surprised to see how many people complain about the excessive length of a case and
then if you dig into the case and see how they or their lawyers behave, you realise that in part
it is due to their own behaviour okay? First you have a calendar of submissions, in Belgium (and
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now this is professor Allemeersch business, ‘de conclusietermijnen’), can we agree on a
calendar of submissions? Well I experience, as not an expert, in the Netherlands is that it went
so quickly because the judge says these are the deadlines, whereas in a Belgian case it is a little
bit like “the parties decide on de deadlines”. And since we all have been students and we
Belgian lawyers like to be like the students and our principle is: why would we do today what
we can just postpone to tomorrow? And so if you have a calendar, and the perverse thing in
Belgium is that since there is such a backdrop in court, why would you be extremely quick with
your calendar an dates of submissions? If then they say, the first useful day that you can come
and plead your case is in two years. Then I’m not going to hurry and make my submissions in
two months. So, you see the problem. So basically what in the Belgian practice people do is
they ask the president of the court “when can we come and plead our case?” and this president
says “oh, within two years” and then they say “okay, half year, half year, half year” (voor de
conclusietermijnen). This is how the system functions, okay? But still we can have applicants
that are extremely, how will I say, unkind or just ask exceptions, adjourn the case, I can’t come,
my lawyer is ill, there is a new thing and so on, and so on. Now if you have this kind of behaviour,
okay fair enough if the legal system allows you to do so but then maybe you maybe should not
go complain about the excessive length of procedure. So this is something the court takes into
account.
Equally, and that is the flipside of this criterion. There is obviously also the behaviour of the
authorities to take into account. Because it is true that parties are sometimes a little bit, they
let it linger or they like to postpone. But authorities can be extremely ineffective, let’s call it this
way. If you have, for example, in a criminal case, an investigation and the investigative judge
during two years doesn’t do anything, well can we blame the parties? I wouldn’t say so. This is
a problem of the authorities. So these delays are taken into account.
And the last point that the court may want to take into account is what is basically at stake of
the outcome. That is to say we can understand, well I suppose that we can understand, that in
some cases the excessive length or the presumed excessive length of the procedure is less a
problem than in others. If it is about an invoice that isn’t paid, well that is money. And well okay
that is unfortunate but maybe it isn’t that much of a problem. But if we are talking about cases
about custody over children, that is something different. If we are talking about labour law
conflicts, someone is fired, that is important. These are important issues. So, that may be an
argument the court also may want to take into account.
What are the consequences of this undue delay? Well in civil cases they should not, or the
undue delay should not have an impact on the outcome of the case. And I would say in BE law,
if you really suffer damages because you have to wait too long, there is always the possibility
on tort law against public authorities, to bring your case to court. And to say ‘I have been
waiting too long, and now I want to be compensated because of this’. So that is liability of the
state. In criminal law, and contrary to what people in the street tend to believe, in criminal law
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it is not automatically that the finding of an excessive length annulated the whole procedure.
In Belgian law for example there is a possibly for judges to mitigate in a way the sentences, so
they can decide that because of an exceptional length of procedure the criminal action is
inadmissible but they can equally decide that the criminal action can still go but that they have
to take into account the excessive length of the procedure. This may lead to a lower sanction.
Either people are declared guilty without any sanction, either they have to pay a lower fine or
they have to pass less time in jail. So that is basically what we have to notice there. And I think
especially in criminal law, our courts they notice and this argument is often made ‘it took too
long’ and then you they say ‘yes it took too long and I will therefore reduce sanctions’. That is
most probably the most proper way to deal with that issue. Okay, any questions on that?
EU SOCIAL CHARTER (ESC)
Right, this means that we have been talking now about the general concepts of human rights,
international and regional, the European convention, and some of the rights enshrined in the
EU convention. Let’s now have a look at, let’s say the twin system of the EU convention. And
that is the European social charter. The eu social charter is part of our concerns in economic,
social and cultural riht.s. and what comes to economic, social and cultural rights I think that and
we touched upon in when we discussed UN. We know that in the universal declaration, 70 years
ago now, we have first generation rights, civil and political rights, we have social economic
rights and cultural rights. And we know how problematic this was, politically a that time and
our (?) was to convince states to turn the rights protected by the Universal declaration in an
indisputably binding treaty. So if you follow the political debate today, and Belgian students will
follow it, they will recognize a lot of old discussions. Is that global pact on migration ‘it is
binding?’, ‘no it is not binding’, ‘oh then why isn’t it a treaty?’ and so on, and so on. Well, we’re
doing all over again somehow. Then again you have that universal declaration is it binding? Is
it not binding? We see how problematic this is in a political debate and how easy it is in a way
to avoid all ambiguity if we are just turning it into a treaty. It appears that is was impossible to
make one single treaty. So at the level of the UN, what happened is 2 treaties, 2 international
covenants, international covenant on civil and political rights as we discussed and the
international covenant on social, economic and cultural rights. The less known one if you want.
Less known, why? Well, perhaps as we also said at the beginning of class because of the very
content of the economic, social and cultural rights. The fact that in the history of HR they
appear at the end of the 19th and the beginning of the 20th century. We were used to working
with civil rights, political rights, but not our social and economic rights. And so that focus on the
conditions in which people live and can enjoy their civil and political rights is a new one (ik denk
dat hij hier social and economic rights bedoelt, maar zich vergist). We know that it were in the
universal declaration and sometimes people make fun of them to say ‘oh are that really HR?’.
and some are, I would say undisputed. The rights to social security, the right to work, to have
free choice of employment , to have just conditions of work (you’re not going to work as a slave,
that on the work floor you are in decent circumstances and conditions), the right to join and
establish trade unions.
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Now, here again the history is perhaps a little bit weird. When I say ‘the right to join and
establish trade unions, you may immediately say ‘oh that is a right created by the left”. You will
see that from a legal perspective and I promise it is the last time this semester and you know
what I am going to say obviously, I have to refer Buranti? I’m sorry for that. But he stresses it
once again in eu conflict by saying ‘since in many eu states and some of the Erasmus students
will recognise the system from their country. There was a system of close trade unions whereby
if you were going to work in a sector and you joined a trade union you had to a single specific
trade union. That only trade union. So obviously those trade unions were important and
powerful players because there was no completion so to say. So it is not a surprise that in such
a circumstances pleading in favour of the right to create trade unions was not an argument
coming from the left. But was rather an argument coming from the right, or central right.
Because they hoped that in creating trade union pluralism you would have more trade unions
and they would be divides amongst themselves. So that was basically the interest of having the
right not to join a trade union but to create and establish a trade union. It is not, and that is
important, a right defended by the left.
What do we have else, the right, and this is what I told you is mocked at, it is the right to rest
and leisure. But I think that are extremely important rights. I think I recommended already Karl
Marx son in laws book on the right to be lazy. You should start reading it after your studies. So
let’s not underestimate the right of leisure. So, what about the right on decent housing
conditions, what about the right to education, what about the right to participate to the cultural
life? So we see there is rights in the universal declaration and then we’ll see that they are
transfers, or most of them, into the international covenant on economic, social and cultural
rights. With a specific monitoring system. This is like a treaty body as we know under the UN.
And the problem on a complaint mechanism. Now I just checked it today, to make clear Belgium
accepted the complaint mechanism under the ECOSOC but I would invite you to go and have a
look at the map and at the website of the UN. You will see how there are only few countries in
the world that have accepted this complaint mechanism. It’s even in Europe there are few
countries that have accept it. That indicates that these economic, social and cultural rights are
still not treated or considered as first generation rights.
And you see the same thing on European level, I mean on the level of the council of Europe.
They have this European convention on HR, a convention an civil and political rights we know
perfectly why or we knew whey there were no social rights in it. For political reasons. And know,
and I won’t say thanks to who, but I understand know why this was the case and it is in a way
because it appears that a way the Britch conservatives didn’t want economic, social and cultural
rights in this European convention because they considered the European convention as a
counterbalance to the labour governments that came into power right after the second WW.
And so they feared that this labour government would bring great Britain, would lead it on the
road to a much more state dominated economic market. And that is why they wanted to have
a counterbalance on an international level. Really this idea of checks and balances. And they
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didn’t want these social and economic right into that, because that would weaken the
counterbalancing effect of this convention. And they would convince the French Christian
Democrats who at the time of the drafting on the ECHR, were in favour of a more social
democratic approach. But they had a problem with the right to education because the French
left as in Belgium the right to private schools to catholic schools protected by the convention.
And this was not a problem for the British conservatives and so what you see is that French
Christian democrats although on the economic side they would have defended the idea of
having social, economic and cultural rights in de European convention. They finally made a
compromise with the British conservatives. So no economic and social rights and in turn you
get this protection to the right to establish your private schools. So this explains a little bit why
in the convention you don’t have social, economic and cultural rights. So you get in the end
your ESC, which is a document from 1961 and it is a charter of a different nature in that contrary
to the ECHR it starts by giving some obligations in terms of aims and then it gives a list/basket
of social rights and states can make a certain choice. So they can commit themselves to
respecting some of the with a minimum, some of the rights and not necessarily all of them. So
this is what is called the à la carte protection. And then the most important thing. There is no
court, as a monitoring system. So the monitoring system is a committee of experts. And then
you see that throughout recent history there are reforms of the system and in the end we get
and that is basically where we are, we are in 1996, we are here and we have revised ESC.
Revised in that in that some more rights have been included. And in that changes have been
brought to the monitoring system. This committee of experts, allows collective complaints, not
individual complaints. You can’t go on an individual basis to Europe, claiming that one of your
economic, social or cultural rights has been violated by a state or party. You can’t do that, it is
a collective mechanism. Only half standing NGO’s recognized by the council of Europe and the
classic social parties, associations of employees and employers. Also if you go and have a look,
and I checked it today as well, on how many states recognize this mechanism of collective
complaint you see we are at 13. So what do we learn here? We see that social, cultural and
economic rights are so much related and linked to posing, meaning: what kind of social posing
do we want to have?, want kind of economy do we want to have? Yes we are all living in a
socially corrected market economy but how much social correction do we want? How many?
How far? Tis kind of choices states want to make themselves, and they are really reluctant 1.
to commit themselves to I would say binding standards. Once again, todays discussion, the
political discussion of today, shows us how states are sometimes really obsessed by the idea “I
don’t want to be bound by binding standards”. 2. How much they don’t want judges to decide
our complaints in these fields. They come up with experts, a committee of experts. And then,
do they really want to give individuals standing? The right to complain? Well there again you
see a lot of timid behaviour and after all only a few states recognize this collective complaint
mechanism. Do you have questions on that? Is that clear? Then we have a 10 min break.
Tweede uur
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Now, I must say, obviously you’re going to say ‘yes but they are implemented in the EU Charter
of fundamental rights’. So yes it’s true, things are changing, the challenges are changing, but
perhaps this evolution is a little bit slow. As we already discusses, I think in one of the first
classes, this reluctance can be explained because there are differences, conceptual differences,
I already told you. And, just to list it a little bit, in HR nowadays it’s very fashionable to say ‘well,
HR’s they’re interrelated, you can’t divide them…’ and so on and so forth, the typically HR talk
of the Vienna Convention, the Vienna Conference of 1993 on HR’s. But I would say, ‘yes, there
is a difference and this difference is – as we have said so many times – a difference between
mainly negative obligations on de side of civil and political rights, and mainly positive
obligations, related to economic, social and cultural rights. This was the first important point.
The second important point, obviously, is the justifiability of those rights. It is very easy to bring
civil the violation – or the presumed violation - of civil and political rights before a judge. It is
far more complicated to bring violation of eco, socio and cult rights to the judges. They may be
less at ease with that. There is also a difference concerning the very nature of the applications.
In pol and civ rights, it’s an application of result. In the case of eco, socio, cult rights, it is an
application of means, we are talking about progressive realization of rights, not of the
immediate result that has to be changed. Now, I think that we can easily see that these
differences should not be over estimated. Especially I think we have seen in analyzing these civ
and pol rights how important positive obligations have become there, so this negative-positive
is not a (?) but it still is important. Also the European Court of HR’s, think about Speck, think
about other cases, does recognize to some extend, socio, eco and cult aspects of rights read in
classic civ and pol rights.
One of the important cases there, is a case against Turkey and it’s a case with the freedom of
association. Implies rights of collective bargaining in the social, economic field and the court
says ‘well, freedom of association is definitely a civ and pol right that applies to trade unions.
So the right to create and establish a trade union, can a form of an expression of the right to
create freedom. But than, does this mean that you can engage in collective bargaining? And
here, the Court refers to the European social charter, although, it was not ratified by Turkey.
So if you want an example of – and I don’t want to start discussions – but if you want to see
how soft law or even here hard law that you have been ratifying as a state, can influence your
obligations under hard law; here you have an example. Don’t tell it to Theo Francken, I didn’t
tell you but this is typically this kind of cross-fertilization, this is a clear example.
Okay, we know that there are differences, we shouldn’t over estimate them, we shouldn’t on
the other hand deny that they are there.
But than, let’s have a look at what precisely are those obligations that follow from the very
concept of socio, eco and cult rights. Now here, I’m going to read – because Paul Lemmens
likes to do that – and I think it’s a wonderful exercise. Let’s read art. 2, first paragraph, of the
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covenant of eco, socio and pol rights. Each State Party to the present Covenant undertakes to
take steps, individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of legislative measures. You heard it?
One way of reading this article. Now I’m going to read it again. Each State Party to the present
Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a
view to achieving progressively the full realization of the rights recognized in the present
Covenant by all appropriate means, including particularly the adoption of legislative measures.
Have you notices the difference? Hopefully you noticed, however clumsy I was in reading,
depending on the position you take, you can put the stress on let’s say the obligations and on
the hard law aspects so to say, or rather on the conditional approach, you’re going to undertake
steps, you commit to undertake steps and you’re going to do this progressively, and it’s by all
APPROPRIATE means, and in view of achieving progressively, since there is a possibility for the
states to put the stress differently and to say ‘well these are obligations, but they are, you know,
conditional or at least they are obligations rather of means. I commit that these are intentions
rather than hard rules. And that is basically where you can see that depending on which position
you take, where academics ngo’s, HR lawyers broadly have tried to say ‘oh, let’s stress
especially that reading of the obligations that put the stress on the fact that you commit
yourself to something, that you’re going to do something and that you have obligations, and
not on this discourse from the side of states that say ‘well, you know, I have to do something
and I’ll do that but later on’ and so on and so forth. And that is not the reading that is proposed
by academics, ngo’s and so one.
So there is a kind of discussion and then you see that the committee on socio, eco and cult
rights came out with this general comment number 3, to explain a little bit – and this is one of
these treaty body mechanisms, coming up with an explanation of how do we have to
understand this art and especially what is the nature of the obligations that states contracted.
And yes, this committee will say it is about a progressive realization. So it’s not ‘I want it all and
I want it now’ it is ‘there is a progressive dimension to the obligation’. ‘But’, says the committee,
‘this does not mean that you can’t have obligations that apply immediately. It’s not because
you have some time, because you have goals in the future, that you cannot already do things,
those things that you are able to do.’ And the committee goes further and says ‘there is also a
kind of stand still provision – and we know this stand still provision equally in our constitutional
law - for example when we say we are going to freeze the level of protection at a certain socio,
eco cult right and declare we cannot go under it. That is to say that maybe in exceptional
circumstances where it is justified but as a matter of fact progressive realization means that
the conditions of … that you’re going up, not that you’re going down. And, finally the committee
will say that there is a kind of minimum obligation that has to be fulfilled and rights that are
committed to the state parties that have ratified the convention. So, I think by now we have a
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better idea about how eco, socio and cult rights are about the commitment: there is a minimum
level that the state has to guarantee. A state cannot say ‘I’m not going to do this right now’.
You do this right now, you guarantee a minimum level right now and at the same time you work
on progressively obtaining higher goals, ok? And within this framework you are trying not to be
regressive. So once you have reached the next level, you’re not going … (So you’re the video
game players? Sorry guys, I’m taking back this example, in my childhood was Mario Bros, so,
sorry I haven’t been updated ever since, so I’m still jumping because there are crocodiles
around.)
Okay, that is the general framework. Now, let’s go and have a closer look at the psychology of
the obligations. First thing, even in eco socio and cult rights you can say that there is a negative
obligation on the side of the states. That is the obligation to respect. So that is to say a state
should refrain from interfering with people’s socio eco and cult rights in arbitrary way. That is
not to say that the state can never interfere obviously. It can, and you can already imagine on
which conditions this will be. It will be once again this triple condition. There must be a law – a
legal basis – there must be a legitimate aim – and this will be an aim of general welfare here –
and the restriction must be compatible with the essence of the rights. So, that is a way a
proportionality test, if you want. No interference, so you have to respect. What are the positive
obligations? Typically obligations, typically the UN discourse, obligation to protect. Protect
HR’s, protect means, protect violations by third parties, which is obviously in the era of socio
and eco rights rather important. Because this would be the era for example of labor, whereby
you as a worker should be protected against interferences of violations by third parties who
would be in the first place be employers, or multinational corporations. And then, third part is
the kind of more dynamic dimension to it and that is the obligation to fulfill, that is really the
obligation to undertake positive measures towards this realization of socio and eco rights.
The geeks, the specialists of eco and socio rights have tent to distinguish those obligations to
fulfill as being ‘sub-obligations’, that is all part of the obligation to fulfill, and that can be for
example the right to facilitating, you should help me to enjoy these rights. And that is a in
general, it can be important, you help individuals and make sure that they can enjoy these
rights. You should provide those rights. And that is usually an obligation that extends to specific
vulnerable groups, that may have special needs and where specific programs should be
designed, I would almost say tailor-made, to those groups so that they can enjoy their rights by
themselves. And than of course there is the real promotional issue that is for example is
typically, and you may think of it perhaps from a western perspective ‘well is that so important?’
but this is typically a right that applies in the context on women’s reproductive rights. If you
really want that women in the global South enjoy their socio and eco rights, health rights and
so on and so forth, one of the first things to do is to campaign and to make them aware that
those rights exist. This is typically in the Belgian context the kind of campaign that people are
doing all the time. And we tend to forget, because we are so much trained as lawyers but even
as people living in a country where in schools already we are telling that toddlers they have
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rights and they are entitled to things, but this is not everywhere the case and so in this kind
sectors this is extremely important.
Saying to states that they have to take steps to the maximum of the available resources, is
obviously an important part of socio and eco rights. And I think that I already mentioned the
discussion in a previous part, but we cannot do simply as if there is no eco dimension to eco
socio and cult rights. There is, if we would do that this is not important at all. So we have to
face them and say to take steps. What do we mean? Which steps? General concepts? General
steps can be a regular framework, a legal framework, that is a matter of taking steps. But it can
also be implementing policies.
‘To the maximum of the available resources’, now here you have it, how are we going to decide
there? Well, the point will be that anyway you need to do some – and I hate the managerial
speak I’m going to use here – but you need to have some indicators. And so, if we really want
on an effective basis, we want to asses whether a state is doing everything possible, ‘to the
maximum of the available resources’, we need to find some facts and figures and than bench
marking can help and indicators as well. And indicators are used to say ‘well, we give here an
indication of what we expect’ and benchmarks are there to compare states to similar states.
You look around and you say ‘okay, I can compare Denmark to Sweden. I can compare Germany
to France. I can compare the Netherlands to Belgium, so to say. To see whether they are a little
bit up to standard. I would be particularly unfair to compare Congo to Canada. It wouldn’t make
sense. You could only say in Congo there is a violation of all the rights so to say and this is
because you don’t do a serious effort of benchmarking. So the benchmarking is important
because it should avoid a kind of falsified comparisons. Obviously, as I already said, there are
some minimum obligations to states, but here again, how could we define minimum obligations
in an abstract way, an abstract context. You can’t define minimum obligations the same way
applying to Congo – to take as an example as one of the poorest countries in the world and
New Zealand. It wouldn’t work. It would be either to harsh to Congo, either to lame to New
Zealand. Obviously, states do enjoy a wide portion of appreciation. That is once again this idea
of social policies, which is – as I told you already - subletting occasions, which is so at the heart
of policy making and therefore of politics and which is much more here involved than it is in
the context of civil and political rights.
Okay. When it comes to protecting individuals against interferences by third parties - as I
already said – than the obligations state parties have, are probably obligations that are best
expressed to labor work. And maybe also, more and more, trough obligations under social
corporate responsibility. Business and HR’s. protections against multinational corporations.
That is what is important, because we know that perhaps – if you think about the example,
some years ago it was in the heart of our discussions in this topic, the Bangladesh textile
company, Rama Plaza. So, it appears that our clothes being made or whether we bought them
in fancy boutiques, whether they have names of fancy designers or whether you just bought
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them in H&M, most of them are just made in Bangladesh and in some other countries
specializing in textile industry. Now, you don’t want to know in which kind of conditions people
work there. Even children. I don’t want to be mean, but if someone is going to buy in this
Primark, you can’t expect a pair of trousers that you pay 5 euros, you can’t expect that this is
made in circumstances where someone earned 7 euros working on that trousers, that wouldn’t
work. So, this is basically the thing. Now, you could say – and that would be the traditional
international law approach – you could say ‘you know what, we’re going to make international
treaties or compacts or soft law or whatever and we’re going to negotiate with these states.
The problem is that many of those states are just simply to weak to impose their regulatory
framework or their legal framework on those multinational companies. And in most cases,
those companies – and I mean I’ve been taking textile industries but you could also take oil
companies, it’s a very similar thing – so, they’re active in states where the state parties are
rather weak, have not that much power and in the end where the implementation of rules is
perhaps not very convincing. So that is one thing. You may have rules but there is a problem
they are not implemented. The other problem there, that perhaps these companies simply say
to these countries ‘these kind of rules, no problem, we’ll go elsewhere. Because there is always
Vietnam, so to say, and there we will be better of.’ So we learned – trough trial and error – it
has been found that it’s perhaps more effective to make a framework that applies directly to
the companies rather than to the states. And that is the logic of this business and HR’s
approach, whereby the point is ‘if we target the companies, if we impose in trade agreements,
in investment agreements, if we impose obligations on companies, it will be much more
effective in terms of HR’s, for the people, than if we do it trough states.
And that is where you can see that sometimes self-regulation, whatever we may think of selfregulation, can be more effective than state regulation. If you think about it, is not so
fundamentally different from the history we had in our country. Think about – does anyone
know when we had the first retirement allowances. Does anyone know – I’m just curious to see
whether you know something about it – who created this, who was the first? It was not the
state. It was some of the enlighted liberal owners of big companies, creating this for their own
workers, if I’m not mistaken, Solvay, which is now the typical Brussels based Solvay company,
was the first company in Belgium to decide without the existence of a legal basis, without legal
obligations, that they were going to pay retirement allowance to their workers. I think here in
Leuven, and this is what you see when you walk trough the vesalius street, remicam. It was an
industrial place, where the owner had a reputation of respect for his workers. This is what
happened. It was private initiative before state initiative.
So, I’m just giving this as an example, to make you understand that this self-regulation approach
that says that you need to engage with companies rather than to impose things on companies.
I mean, it seems a little bit contrary but it may work. And I once, when I was very critical about
this approach, I once said to an expert, ‘this is a little bit unfair so to say, because you are
negotiating with those that violate the HR’s.’ And his answer was a very good one. He said that
231
that’s what we are doing all the time. Because even if you think about treaties and about
making rules with state parties, you are dealing with those that are violating HR’s most. And he
said from that perspective there is no much difference between states and private companies.
So, why not negotiate more with them and see what you get. Maybe they can always do more
but at least you would have a common ground and something that works irrespective of how
effective state parties and state law are. So, even in a failed state, those rights can be protected
if the private companies being active agree themselves, in a business and HR’s approach, on
respecting those rights. So I think we should take that seriously.
Last point. We are not talking about civil and political rights, or about social and economic
rights, we are talking about all those positive obligations. There are negative obligations as well.
I told you that states cannot just arbitrarily interfere, but maybe the strongest negative
obligation in the area is once again the respect of the principle of equality and nondiscrimination. And here again it has a particular importance. Perhaps not in all rights, but in
many of those rights. If you think about labor context, what else is equal pay than saying ‘I have
to guarantee that people are entitled to a decent income for their work, that they are
remunerated decently for what they do, without there being discrimination. Is there one single
reason why we would pay women less than men? Non-discrimination issue in labor law context.
We’ll be talking next week about non-discrimination. Non-discrimination issues being
extremely important once again in health care context. I mean, you will now far better from all
these documentaries the position of women in terms of medical care in some countries is
terrible. And states should provide systems of health care and medical care without making any
form of discrimination. And this does not only be that if you have a flew you should treat women
and men equally and that the system should not systematically offer better services to men
than to women, but also the other side of the anti-discrimination issue, that you develop
specific care for women. I mean, it’s women that are pregnant, not men. So the equality
principle there, implies that for pregnancy, you have specific programs and you offer services
of the highest standard for pregnant women. Just to give that example. And, this seems such
an obvious statement, but then, once again, it is still a problem. So yes, there is still a lot of
work to be done., we’ll continue with that next week, and you all know that next week we have
class on Thursday and on Friday you’re all welcome to join the event … (no class on Friday).
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