[SOUND] How does a judge decide if someone's human right have been violated. In this lecture, I will discuss how the European Court of Human Rights generally approaches complaints about a violation of human rights. I will just suppose that the court has dealt with all the admissibility issues and that it is now sitting down to decide on the merits, or the content, of the complaint. In general, the court examines all human rights complaints in two main phases. First it needs to determine which of the rights, in the European convention, is applicable to the facts of the case. And if there is an interference with these rights. This is called the phase of definition, or qualification. And then, if the court has found that there is such an interference, it must see if there is a possibility for justification of that interference. And if there is, it has to examine if indeed there is such a justification in the case at hand. This is what is called the phase of justification. I would like to illustrate these phases, so definition and justification, by using the example of Ms. Martin. Who is a young, Jewish woman living in France. Because of her religious convictions, she only wants to eat so called glat meat. That means meat from animals which has been slaughtered according to very strict religious rules. If in France there is legislation, this prohibits the slaughter of animals that not have been stunned first. The result of this is that it is impossible for Ms. Martin to obtain the meats that she is allowed to eat. So she now wants to complain to the European Court of Human Rights. In dealing with her complaints, the courts first needs to be decide if one of the convention rights is at stake. Probably, Ms. Martin will invoke article nine of the convention on the freedom of religion. But does this provision really apply to her case? Article nine does protect freedom of religion, and also the freedom to manifest one's religion. But does it cover religious rituals for slaughter? Some will say that manifestation of religion only relates to direct manifestations. Such as religious ceremonies or praying. And even if a wider definition is chosen, you may wonder if just anything that an individual considers an exercise of religion really should be classified as such. For instance, not all Jews regard eating glat meat as a religious obligation. So clearly the definition phase has its challenges. In fact, the court rather often finds that a complaint does not fall under the convention. But in a case similar to that of Ms. Martin, the court did find that prohibitions on ritual slaughter do indeed interfere with the freedom to manifest one's religion. But finding such an interference does not yet mean that the convention thereby has been violated. In order to arrive at that conclusion, the courts will first need to deal with the second phase of its review. So the coordinates to examine whether there is a possibility of justification of the restriction. It is important to note here, that not all rights in the European Convention allow for restrictions or exceptions. As you can understand there is, for instance, no justification possible for torture or for inhuman and degrading treatment. So when a convention rights does not allow for justification the courts will be able to find the convention is violated as soon as it has found that the convention applies and the right has been interfered with. Yet, for other human rights the convention does allow for certain restrictions and exceptions. The case of Ms. Martin again provides an example of this. Article nine of the convention does not only state the right of freedom of religion in paragraph one. The second paragraph of this article clearly says that restrictions are allowed as long as they meet criteria mentioned there. So in dealing with Ms. Martin's complaints, the court will have to examine if the French legislation on slaughter complies with the criteria mentioned in that second paragraph. This means that it has to look at the arguments the government has presented to defend the interference. Probably the French government will argue that the legislation is meant to protect animal welfare. The court then needs to decide if that is a legitimate aim. If the legislation is really necessary to achieve that aim. And if it strikes a fair balance between animal welfare and the right to manifest one's religion. Only when the court has made that assessment it can conclude either that the convention has been violated or that the State has sufficiently observed its obligations under the convention. So why is it important to distinguish between the definition phase and the phase of justification? Well firstly, the example of Ms. Martin shows that these phases can have different possible outcomes. And in addition the two face approach has an effect on who needs to prove what in the case at hand. In the definition phase the applicants, so in our case, Ms. Martin, needs to show facts and arguments to convince the courts that a convention right really has been interfered with. In the justification phase the burden of proof shifts to the State. As soon as it is clear that a right has been interfered with, it is up to the State to show that it had good and convincing arguments for doing so. In this phase, the court's assessments will focus on criteria such as the legitimacy of the aid pursued, as well as the necessity, and proportionality of the measure. By consistently choosing this two phase approach, the courts can thus effectively probe the reasonableness of restrictions of human rights. And opt for a fair division of the burden of proof. [MUSIC]
