Recent Decisions from the European Court of Human Rights
By Bonnie H. Weinstein
A number of recent decisions have been issued by the European Court of Human Rights in Strasbourg (the "ECHR"), which are significant not only for their content, but for the broad scope of the subject matter addressed.(1) The ECHR provides European nationals, and others, a forum that transcends national court authority for adjudication of issues in instances where they believe their human rights, as guaranteed by the European Convention on Human Rights (the "European Convention"),(2) have been violated.
This ability to transcend national law, and to compel revision of such law to comport with rights guaranteed by the European Convention in a broad range of areas, most often within the exclusive purview of national and local courts, is of historic note. Generally, nation states have been the final arbiters of most issues affecting their citizenry and within their borders. By treaty, the signatory nations of Europe have granted the ECHR binding authority to decide cases affecting their citizenry and other persons subject to their authority. In instances where state law is found inconsistent with an ECHR judgment, the nation at issue is obliged to amend its national law to comport with the ECHR decision. These cases illustrate the concept of what is increasingly being referred to as an evolving European supranational identity. The ECHR grants jurisdiction to any individual, non-governmental organization, or group claiming be a victim of a violation of the European Convention by a ECHR signatory nation, and to bring cases before it, as does, in applicable cases, the European Court of Justice (the "ECJ"), the court of the European Union, based in Luxembourg.(3) These courts of final judgment are empowered to determine whether national courts have rendered decisions in violation of applicants' fundamental human and civil rights as guaranteed by treaty, or where national courts provide no appropriate forum.
Recent ECHR decisions address areas as far reaching as family law,(4) criminal defense,(5) children's rights,(6) employment, pensions,(7) freedom of expression,(8) and military policy.(9) Certain cases of special note are discussed below.
In January 2000, in response to September 1999 decisions of the ECHR, the United Kingdom was obligated to end it ban on openly gay men and women from serving in the armed forces. The court unanimously held in favor of four service men and women, who had been discharged during the mid-1990's due to their sexual orientation. The court ruled that the U.K.'s policy excluding homosexuals from service in the armed forces, including the investigations into applicants' private lives, and their subsequent dishonorable discharges, violated their fundamental human right to privacy, as guaranteed by Article 8 of the European Convention. The court also found the U.K. in violation of Article 13 of the Convention because applicants had no effective remedy before a national authority to pursue alleged violations of the Convention. The court did, however, reject applicants' argument that the government's behavior constituted degrading treatment, as set forth in Article 3, taken alone and in conjunction with Article 14, which guarantees no discrimination on the basis of race, color, national origin, political opinion, and the like. In response to the decisions, the U.K. issued a revised code of military conduct, whereby openly gay individuals are no longer prohibited from serving in the military, and also promulgated a new uniform set of rules of social and sexual conduct for all members of the military, regardless of orientation. Germany, at about the same time, was required to revise its military code of conduct, when the ECJ held in a case before it that the German ban against women bearing arms is discriminatory.
Two child protection cases illustrate the far reach of the ECHR. Both cases, which are currently under advisement, were referred to the court by the European Commission in accordance with protocols established under the European Convention. The Case of Z. and Others v. the United Kingdom concerns five siblings, allegedly severely neglected and mistreated by their parents, whom the Bedfordshire County Council allegedly failed to protect. The Commission determined the U.K. had failed to provide court access or other remedy in accordance with the European Convention. Complaints were lodged against the United Kingdom alleging breaches of the Convention under Articles 3 (right not to be subjected to inhuman or degrading treatment), 6 (right to a fair trail), 8 (right to respect for family life), and 13 (right to an effective remedy). In the Case of T.P. & K.M. v. the United Kingdom, the court will address the instance of a mother and her child, who were separated when the London Borough of Newham took the child into care on the mistaken assumption that the man who had abused the child was still living with the mother. The European Commission opined that there had been violations of Articles 6, 8, and 13.
In decisions that illustrate ECHR impact on children's and defendant's rights, the ECHR ruled in December 1999, in Judgment in the Case of T. v. The United Kingdom and Judgment in the Case of V. v. TheUnited Kingdom, that two ten-year-old boys, who kidnapped and killed a two-year-old boy in a much publicized case in Liverpool in 1993, had not had enough accommodation made for them to effectively participate in their trials. The court held that the proceedings had breached the boys' rights because the atmosphere of an adult court had prevented them from effectively taking part in their defense. The judges opined that the trial, with its formality and procedures, must have been overwhelming and incomprehensible to them. British authorities are reviewing the cases, and trial procedures generally against minors, to bring them into compliance with the decision.
Another example of note concerns the trial of the Kurdish leader, Abdullah Ocalan, in Turkey. On November 30, 1999, the court granted a request by Ocalan's counsel invoking Rule 39 of the European Convention,(10) whereby Turkey agreed to refrain from proceeding with the execution until the court had an effective examination of the admissibility and merits of Ocalan's complaints to it under the Convention.(11) The death penalty is banned by a protocol to the European Convention. Turkey, which seeks European Union membership, has not executed Ocalan. On February 16, 1999, a complaint was filed on Ocalan's behalf alleging that Turkey was in violation of the European Convention under Article 2 (the right to life); Article 3 (prohibition of torture, and inhuman, or degrading treatment); Article 5 (the right to liberty and security); and Article 6, section 1 (the right to a fair trial).
It will be interesting for legal scholars and others to observe the nature and breadth of continuing ECHR and ECJ decisions, and whether the signatory member states will continue to bring national law into compliance with the courts' ruling, or if attempts will be made to place limits on the courts' jurisdiction.
1 The European Court of Human Rights was organized in 1950 in Strasbourg. Its purpose was to address alleged violations of the European Convention on Human Rights. On November 1, 1998, it became a full-time court, replacing the prior two-tier system of a part-time commission and court. For more on the court and its decisions, see <http://www.echr.coe.int>.
2 The European Convention on Human Rights was signed in Rome on 4 November 1950, under the auspices of the Council of Europe. It went into effect in September 1953. The Convention has been ratified by all of the Member States of the European Union. For further information on the Convention, see the web site noted at 1.
3 In 1998, the ECJ brought human rights to the fore by the adoption of the Treaty of Amsterdam, which provides for formal recognition of human rights. See generally The Amsterdam Treaty: A Comprehensive Guide at <http://www.europa.eu.int>.
5 See e.g. Judgment in the Case of Khalfaoui v. France, ECHR (14 December 1999), where the court found that there had been a violation of applicant's right to a fair trial under Article 6 of the European Convention, due to the forfeiture of his right to appeal in a case alleging indecent assault, when he had not surrendered properly to custody awaiting his hearing; Judgments in the cases of Rowe and Davis v. The United Kingdom, Jasper v. The United Kingdom, and Fitt v. The United Kingdom, ECHR (16.02.2000) , addressing the right to a fair trial (Article 6 of the Convention); Judgment in the Case of Caballero v. The United Kingdom, ECHR (8 February 2000), addressing the right to liberty and security (Article 5, sections 3 and 5), right to an effective remedy (Article 13), and prohibition of discrimination (Article 14); Judgment in the case of Perks and Others v. the United Kingdom, ECHR (12 December 1999), where the court found violations of applicants' right to a fair trial, when all eight of them were imprisoned for failure to pay community charges (poll taxes), following separate proceedings in various magistrate courts.
6 See Judgement in the case of T. v. The United Kingdom, ECHR (Application no. 29724/94)(16 December 1999), and Judgment in the case of V. v. The United Kingdom, ECHR (Application no. 24888/94)(16 December 1999), discussed infra.
8 See Judgment in the case of News Verlags GmbH & CoKG v. Austria (11 January 2000), where the publisher applicant company was granted relief by the court. There, the applicant filed suit alleging violation of its right to freedom of expression, because the Vienna Court of Appeal, affirmed by the Austrian Supreme Court, barred publication in its magazine of certain pictures of a criminal suspect, accused of sending letter bombs in connection with neo-Nazi activity. The court held that in the facts before it the interference with the applicant company's right to freedom of expression was "not necessary in a democratic society" within the meaning of Article 10, section 2 of the Convention. The court noted that the suspect was a right-wing extremist who was known by the public before the letter bombs and that publications of photographs of the defendant did not disclose details of his private life, and did not breach his privacy.
9Judgment in the case of Lustig-Prean and Beckett v. The United Kingdom, ECHR, Third Section, (Applications nos. 3147/96 and 32377/96) (27 September 1999); Judgment in the case of Smith andGrady v. The United Kingdom, ECHR, (Applications nos. 33985/96 and 33986/96) (27 September 1999).
10 Rule 39, section 1 reads:
"The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it."
For Further Reading:
Berg, L. (ed.), Bringing Cases before the European Commission and Court of Human Rights (Institute for Human Rights, Abo Akademi University, 1997).
Carbonneau, T.E., Introduction: Recent Rulings of the European Court of Justice, Denv.J.IntlL&Pol., Fall 1999, v. 27 i 4, at 545.
Drzemczewski, A. The European Human Rights Convention: A New Court of Human Rights in Strasbourg as of November 1, 1998, Wash. & Lee L.R., v. 55, no. 3 (Summer 1998), at 647-59.
ECHR web site at http://www.echr.coe.int.
EU's web site at http://www.europa.eu.int.
Fennelly, N. The Area of 'Freedom, Security and Justice' and the European Court of Justice-A Personal View, Intl. and Compar.L.Qtly., v. 49 (Jan. 2000), at 1-14.
Fordham Intl.L.J., Symposium: The European Union and The Treaty of Amsterdam, Mar. 1999, v. 22.
Helfer, L.R. and Slaughter, A. Toward A Theory of Effective Supranational Adjudication, YaleL.J., Nov. 1997, v.107, n.2, at 273-391.
Mowbray, A.R. The Composition and Operation of the New European Court of Human Rights, Public Law, v. 1999, Summer 1999, at 119-31.
Shifrin, V., Article 1977 References to the European Court: Recent Rulings of the European Court of Justice, Denv.J.Intl.L., Fall 1999, v. 27, at 657.
Slaughter, A. The European Court and National Courts (1998).
About the Author:
Bonnie H. Weinstein practices public and private international law in Washington, DC and New York. Among other activities, she currently serves as a Vice Chair of International Investment Development & Privatization Committee of the American Bar Association, and participated in the ACUNS/ASIL 1999 summer workshop at Yale University.
ASIL Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of The American Society of International Law. The Society itself takes no position on these issues.