How does the ECtHR consider a fundamental rights case?

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来自 Utrecht University 的课程

Human Rights for Open Societies

146 个评分

Utrecht University

Human Rights for Open Societies

146 个评分

Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!

从本节课中

General principles

When someone complains that his or her right to privacy or right to freedom of expression has been violated, the European Court of Human Rights has to assess whether that is truly the case. But how does it do this? In this part of the course, we will focus on the general principles and methods the Court uses in order to assess whether a State has violated the Convention. We will see how the Court approaches human rights cases and learn about the dilemmas it faces in this regard in the context of open societies.

How does the ECtHR consider a fundamental rights case?9:10

与讲师见面

Antoine Buyse
Prof. dr.
Netherlands Institute of Human Rights (SIM), Utrecht Law School
Janneke Gerards
Prof. dr.
Jurisprudence, Constitutional and Administrative Law, Utrecht Law School
Paulien de Morree
dr.
Jurisprudence, Constitutional and Administrative Law, Utrecht Law School

[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]

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