International human rights obligations: enforcement, compliance, and effectiveness Adrienne Komanovics University of Pécs, Hungary

Transcription

1 International human rights obligations: enforcement, compliance, and effectiveness Adrienne Komanovics University of Pécs, Hungary Komanovics Adrienne,

2 Implementation - compliance Implementation Measures that States take to effectuate international treaties in their domestic law Compliance Whether countries in fact adhere to the provisions of treaties and to the implementing measures Compliance with the substantive provisions Compliance with obligations of a procedural nature Compliance with the broad normative framework of the treaty Komanovics Adrienne,

3 Overview 1. Domestic implementation of public international law 2. Nature of the ECtHR s judgments 3. The role of the Committee of Ministers in the supervision of judgments Komanovics Adrienne,

4 1. Domestic implementation of public international law Is the relevant treaty part of the national law? Dualist and monist approach to PIL Actual reliance The ECHR s subsidiary role in protecting human rights Margin of appreciation doctrine Jurisprudence of international human rights courts Divergent interpretation Protocol 16 to ECHR Komanovics Adrienne,

5 Monist approach Primacy of international law International law Domestic law Dualist approach International law Domestic law Komanovics Adrienne,

6 Vienna Convention on the Law of the Treaties (1969) Section 1: Observance of treaties Article 26 Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 27-Internal law and observance of treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Komanovics Adrienne,

7 European Convention on Human Rights Article 46 Binding force and execution of judgments 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. [ ] Komanovics Adrienne,

8 ILC Articles Responsibility of States for Internationally Wrongful Acts (2001) Article 1 Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a State entails the international responsibility of that State. Article 2 Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. Komanovics Adrienne,

9 Margin of appreciation By reason of their direct and continuous contact with the vital forces oftheir countries, State authorities are in principle in a betterposition than the international judgeto assess whether a particular national rule or practice is compatible with the Convention. National authorities: Primary responsibility for ensuring Convention rights The domestic margin of appreciation, however, goes hand in hand with a European supervision. The Strasbourg Court Subsidiary role in protecting human rights Komanovics Adrienne,

10 The scope of domestic margin of appreciation Narrow If there is a sufficient degree of consensus among Contracting States If there is no consensus among Contracting States, if there is no uniform or established common practice Wide Komanovics Adrienne,

11 Opened for signature: 2 October 2013, not yet in force Optional protocol Admissibility criteria Who can submit a request? Nature of the questions submitted Outcome: advisory opinion The highest courts and tribunalsmay request the ECtHRto give advisory opinions on questions of principle relating to the interpretation or application of the Convention rights Who may submit comments and participate in the procedure? Procedure Discretion in accepting the request Grand Chamber Protocol 16 to Komanovics Adrienne, ECHR

12 2. Nature of the Court s judgments 1. The Court s role Margin of appreciation doctrine 2. The declaratory nature of judgments the Court s judgment is essentially declaratory and leaves to the State the choice of the means to be utilised in its domestic legal system (Marckx, 1974) 3. Expansion of the Court s role Remedial measures indicated in the judgments Structural problems Pilot judgment procedure Komanovics Adrienne,

13 Remedial measures specified in judgments Just satisfaction (individual measure) General measures Amending existing legislation Adoption ofa new, Convention-compatible legislation Changing the legal stance of the national courts Other specific forms of restitution for the victim (individual measures) Return of the property Release of those found to have been held illegally Retrial or reopening of a criminal case Komanovics Adrienne,

14 Pilot judgment procedure With a view to assisting the respondent State in fulfilling its obligations under Article 46, the Court had sought to indicate the type of measure that might be taken by the Polish State in order to put an end to the systemic situation identified in the present case. (Broniowski, 2004) Komanovics Adrienne,

15 Repetitive applications On 1 October 2012 the Court had a total of 39,100 pending cases which had been identified as category V cases, that is repetitive cases. The main States concerned are ranked as follows: - Italy (9,400) - Turkey (7,700) - Serbia (6,000) - Romania (5,100) - Ukraine (3,500) - the United Kingdom (2,300) and -the Russian Federation (1,600). Komanovics Adrienne,

16 Pilot procedure Background Systemic or structural problem giving rise to repetitive cases. Selecting a case for priority treatment Pilot judgment Freezing of other applications For a certain period of time(untilthe respondent State acts on the pilot judgment) Examination may be resumed at any time Komanovics Adrienne,

17 Comments on the pilot procedure Legal basis of the procedure Capacity and willingness of States to respond adequately to the pilot judgment Selection of a systemic situation Situation of adjourned applicants Selection of the pilot application Komanovics Adrienne,

18 Repetitive applications Repetitive applications mainly arise from the following categories of systemic issue: - excessive length of domestic proceedings; - non-enforcement of final judicial decisions; - poor detention conditions; - various issues concerning property rights; and -problems concerning pre-trial detention/ detention on remand. CDDH(2013)R78 Addendum III; para. 7 Komanovics Adrienne,

19 3. Supervision of the execution of judgments Article 46(2) ECHR The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. Supervision of: The payment of just satisfaction Individual measures General measures Problem To what extent the Committee of Ministers is qualified, as a political body composed of diplomatic representatives, to assess legal issues Komanovics Adrienne,

20 Execution of judgments (Art. 46(3) and (4) ECHR) Referral to the Court for interpretation of a judgment When the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment Infringement proceedings When a High Contracting Party refuses to abide by a final judgment Methods of political pressure??? Komanovics Adrienne,

21 Supervision: procedure Based on Action Plans or Action Reports of the States These AP/Ars present and explain the measures planned or taken in response to the violation Submitted as soon as possible but not later than 6 months after the judgment Twin-track approach (introduced in 2011) Standard supervision Enhanced supervision Cases requiring urgent individual measures Pilot judgments Judgments otherwise disclosing major structural and/or complex problems Interstate cases Transfer Transparency Komanovics Adrienne,

22 Komanovics Adrienne,

23 Komanovics Adrienne,

24 Individual measures General measures Komanovics Adrienne,

25 Individual measures General measures Komanovics Adrienne,

26 Hungary: Problems with compliance Vajnai v. Hungary (2008); Fratanolo v. Hungary (2012) Two decisions establishing that Hungary had violated the right to freedom of expression by criminalizing the wearing of the red star in public. Magyar v. Hungary (2014) Whole life sentences (imprisonment without eligibility for parole) (violation of Article 3) Komanovics Adrienne,

27 Thank you for your attention. Obrigada pela sua atenção. Komanovics Adrienne Komanovics Adrienne,