Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

3.1  The background

Few people now remember the immediate aftermath of WWII. Chaos existed in Europe and beyond with cities and infrastructure destroyed, failing economies, starvation, sickness and mass migration of displaced populations. Public disclosures of numerous cases of brutal, inhuman and tyrannical mistreatment of millions of ordinary civilians emerged. This mistreatment was at the instigation, or with the connivance or concurrence, of the state, by those in positions of power and those in government.

There was almost universal disgust and condemnation at the disclosures and a general recognition that such events must never be allowed to happen again. A number of countries came together and created the Council of Europe. This was set up to defend human rights, parliamentary democracy and the rule of law. The aim of the Council of Europe was to:

achieve greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.

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Figure 4  Council of Europe sign

Whilst there was initial reluctance for the creation of an international Treaty, it became generally accepted that this would be one of the most effective ways of achieving their aims. Britain played a leading role in drafting the terms of the Convention.

The Convention is unusual amongst international treaties as it contains enforcement mechanisms. The aim of these enforcement mechanisms was to ensure compliance with the ECHR. They included a court which was to adjudicate on disputes and determine appropriate remedies. The court was not designed as an appeal court. It is not able to overturn a judgment of a domestic court. It can award ‘just satisfaction’ where it feels it to be necessary. This can include the award of costs and modest damages (although for some applicants, success before the court is considered to be reparation enough). If the court finds that a state is in breach of the Convention, the state may be required to change its law in order to rectify the breach.

Many states were initially opposed to the establishment of a European Court of Human Rights (ECtHR). They did not want an international court judging their own domestic law. The UK was one of the countries that took this view. Therefore, to ensure that negotiations did not collapse, a compromise position was reached. States signing up to the ECHR could choose whether or not to allow their individual citizens the right to bring a complaint under the ECHR and whether they wished to submit to the jurisdiction of the court.

Despite reservations about a European human rights court, the UK was one of the founding members of the ECHR. The UK signed the Convention on 4 November 1950 and ratified it on 8 March 1951. The UK became bound by the Convention when it entered into force on 3 September 1953. As a result of the growing political divisions within Europe at the time, the UK Government regarded the development of human rights protections within Europe as an important part of its foreign policy. UK politicians felt that the UK itself had adequate protection of human rights through existing common law principles.

You should now watch the following video, produced by the ECtHR to explain its role and work. This explains the background to, and work of the ECtHR and the range of cases it hears. The video is just over 14 minutes long and you may wish to pause it at key points and reflect on its role.

Skip transcript: Video 1 The European Court of Human Rights

Transcript: Video 1 The European Court of Human Rights

Each year, tens of thousands of people who consider that their fundamental rights have been breached turn to the European Court of Human Rights. What is this court which, for over half a century, has allowed individuals to have states held to account and whose decisions may ultimately affect our everyday lives? It was in 1949 in the aftermath of the Second World War that a number of countries joined forces to set up the Council of Europe in order to promote human rights, democracy, and the rule of law across Europe. They adopted the European Convention on Human Rights, setting up a system that was unique at that time, including a binding supervisory mechanism. That was how the court came into being in 1959, reflecting the member state's desire never again to experience the atrocities committed in the mid 20th century.
12 states signed up initially. Now there are almost 50 of them. The court is based in Strasbourg in the Human Rights Building. It is composed of one judge for each member state of the Council of Europe. The judges who are elected by the parliamentary assembly of the Council of Europe are fully independent and do not represent any national interests.
In dealing with cases, the judges are assisted by the registry, which employs qualified staff from all the member states. The court receives hundreds of letters and phone calls every day. When applications arrive at the court, they are sorted and then dispatched to one of the units of the registry which prepare the files for the judges. All the decisions are taken by the judges sitting as a single judge formation, a three-judge committee, a seven-judge chamber, or a grand chamber of 17 judges for the most important cases.
The procedure is conducted in writing. But in a very few cases, the court also holds public hearings, all of which are filmed and can be viewed via webcast. The court receives a huge number of applications every year. However, the vast majority of them are rejected at the admissibility stage because the criteria for applying to the court have not been met, for example, because the applicants have not first raised their case before the national courts. For that reason, the court delivers judgement on the merits and only a small proportion of the cases brought before it. It then rules on whether or not there has been a violation of the convention, and it may award financial compensation.
Since it was first set up, the court has completed the examination of hundreds of thousands of cases. This is hardly surprising given that the number of individuals covered by the system totals around 820 million people. That is the number of potential applicants living in the countries which have undertaken to comply with the convention.
In reality, however, there are even more potential applicants. Non-Europeans, whether they are refugees or other individuals who happen to be within the jurisdiction of a member state, are also protected. For instance, the court found a violation of the convention by Italy following the forced return of Somalians and Eritreans to Libya from where they had originally set out by boat for Europe. The court held that they would be at risk of ill treatment if they were repatriated.
In exceptional cases, the scope of the convention can also extend beyond Europe's borders. The court found the United Kingdom to be in breach of the convention following the deaths of civilians in Iraq during security operations carried out by British forces. The court held that, as an occupying power responsible for maintaining security in the region concerned, the United Kingdom should have conducted an investigation into civilian deaths in which British soldiers were involved. A state can thus be held responsible for events occurring outside its territory.
But states can also be held accountable for acts committed within their jurisdiction by another state if they were aware of them. This was the case with the former Yugoslav Republic of Macedonia, which was found to be in breach of the convention because a person suspected of terrorism was tortured while on that state's territory. The torture had been committed by CIA agents but in the presence of officials of the state concerned.
Numerous rights are protected under the convention. The most fundamental is the right to life. And to the death penalty is no longer applied in any member state of the Council of Europe.
Some cases concern the treatment to which the population is subjected in conflict zones. Other cases relate to the state's failure to protect individuals. The court found a violation by Turkey for an infringement of the right to life and discrimination against women. The case concerned physical assaults carried out repeatedly by a man on his wife and his mother-in-law. The husband later killed his mother-in-law.
The court has also had to rule on the sensitive issue of the end of life. In the case against France, it held that there would not be a violation of the convention in the event of implementation of a decision by the French courts to authorise the withdrawal of artificial nutrition and hydration from a person in a vegetative state. Another fundamental right is the prohibition of torture and inhuman or degrading treatment. Greece was found to be responsible for the torture of an unlawful migrant from Turkey whose boat was stopped by Greek Coast Guard officials while he was attempting to reach Italy. The man had then been beaten and sexually assaulted by one of the officials.
In numerous other cases brought against various countries, the court has identified problems with overcrowding in prisons and inhuman and degrading conditions of detention. But most of the cases coming before the court concern the right to a fair hearing and especially the length of domestic proceedings. The court has received thousands of applications from individuals who, in some cases, have waited more than 20 years for a final judgement in their own country.
There are also very many cases concerning the failure to execute final judicial decisions. For example, Anatoliy Burdov, who worked on the Chernobyl site following the nuclear disaster, had to wait several years before the Russian authorities paid him the compensation awarded by the domestic courts for his health problems. The court in Strasbourg held that a state could not cite budget shortages as a reason for not executing a judicial decision.
The rights and freedoms contained in the convention are set out in general terms and the court has to interpret them in the context of today's society in order to avoid the convention becoming a document that is out of touch with contemporary issues. For instance, the court has delivered judgments in several cases concerning discrimination against homosexuals, whether in the context of the criminalisation of homosexuality, the ban on homosexuals in the armed forces, or the organisation of gay pride marches and with regard to civil partnerships.
It has also had to rule on environmental issues. In a case which led to a finding against Italy and subsequently to the closure of a hazardous industrial plant, the court found that the authorities had not informed people living near the plant about the risks and the procedure to follow in the event of an accident, even though there had already been one explosion and numerous cases of poisoning. The court has also ruled on issues that were unimaginable when the convention was adopted, for example, in cases concerning new technology. In one case, it found that Turkey had breached the convention by blocking access to the entire Google site's internet hosting service. The court held that restricting access to the internet in this way was a breach of freedom of expression.
Some of the cases dealt with by the court relate to politically sensitive issues. One such example was the case brought by Yulia Timoshenko, the former prime minister of Ukraine and leader of one of the country's main opposition parties. She was charged with abuse of power following the change of government and was placed in pretrial detention. The court found that Ms. Timoshenko's detention had been arbitrary and unlawful but it had not been the subject of a proper review and that it had been motivated by reasons other than the suspicions against her.
Some cases provoke a strong reaction from members of the public. The rights set forth in the convention apply to everyone, including individuals who have committed very serious offences. Many people find this difficult to understand. In a case against Germany which resulted in a finding of a violation, the court ruled that it is not permissible to threaten someone with torture even if another person's life is at stake. German police officers had threatened to torture an individual who had abducted and murdered an 11-year-old boy in order to force him to reveal the location of the victim whom they believed to be still alive.
These are just a few examples of cases. The court has found many thousands of violations. The court may find that a state has indeed breached the convention. But in practical terms, what is the impact of a judgement finding a violation? The repercussions are very far-reaching as states are bound to comply with and execute the judgments that concern them.
Ensuring that the court's judgments are respected and that the necessary remedial action is taken to prevent similar violations of the convention in future is the task of the Council of Europe's executive arm, the Committee of Ministers. This Committee is made up of the foreign affairs ministers of the council's member states or their permanent representatives. The Committee of Ministers meets regularly to verify the execution of court judgments. And cases remain on its books until it is satisfied with the measures taken by the state concerned.
The judgments delivered in Strasbourg have led to numerous changes in national legislation, affecting the lives of everyone. They have also opened the way for retrials of individuals convicted following an unfair trial, for the restitution of expropriated properties to the owners or the payment of compensation, for the closure of factories causing pollution, and for the release of individuals who have been detained unlawfully.
In recent years, several high level conferences on the future of the court have emphasised the importance of the principle of subsidiarity. Under this principle, cases should only reach the court when the fundamental rights of the individuals concerned have not been recognised directly at national level. However, the court still receives a great many similar repetitive applications because states have not applied the convention or have not enacted legislation to implement and safeguard the rights it protects.
A number of reforms have been implemented to enhance the court's effectiveness. Ultimately, however, it is at national level that the convention has to be applied. Governments must take action to ensure that the convention is respected in their country. In the meantime, the court continues to serve as the bastion of human rights in Europe, a last resort for millions of people, as it has been for over half a century.
End transcript: Video 1 The European Court of Human Rights
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Video 1 The European Court of Human Rights
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The rights and fundamental freedoms within the ECHR are designed for the protection of individuals and the aim of the ECHR is to encourage peace and good relations between states.


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