European System of HR Protection
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 22 September 2021

European road to HR regime
1.Rights conferred on people by an enlightened ruler
2.
2.Rights seized by the people
3.
3.Rights existing outside of the realm of politics (God, Nature)
4.
4.
1.

Magna Charta 1215
•Subjective rights
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•But limited in the category of subjects
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•Rights conferred on subjects of Crown or taken by subjects of Crown?

The petition of rights 1628
•Charles I x Parliament
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•X. They do therefore humbly pray your most excellent Majesty, that no man hereafter be compelled
to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by
act of parliament; and that no one be called to make answer, or take such oath, or to give
attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal
thereof` and that no freeman, in any such manner as is before mentioned be imprisoned or detained;

The Bill of Rights 1689
•Granted freedom from taxation by royal prerogative, freedom to petition the monarch, freedom to
elect members of parliament without interference, freedom of speech and of parliamentary privilege,
freedom from cruel and unusual punishment from fine and forfeiture without trial.

John Locke
•Self-evidence rights
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•Right to life, liberty, freedom from arbitrary rule, property
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•State of nature
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•REJECTION OF MAGNA CHARTA
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•“The state of nature has a law of nature to govern it which obliges everyone: and reason, which is
that law, teaches all mankind, who will but consult it, that being all equal and independent, no
one ought to harm another in his life, health, liberty or possessions.”

Declaration of Independence 1776
•We hold these truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness.
•…
•That to secure these rights, Governments are instituted among Men, deriving their just powers from
the consent of the governed,
•…
•That whenever any Form of Government becomes destructive of these ends, it is the Right of the
People to alter or to abolish it, and to institute new government

France: Declaration of Rights of Man and Citizen 1789
•The representatives of the French people, organized as a National Assembly, believing that the
ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of
the corruption of governments, have determined to set forth in a solemn declaration the natural,
unalienable, and sacred rights of man
•
•Men are born and remain free and equal in rights. Social distinctions may be founded only upon the
general good.
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•The aim of all political association is the preservation of the natural and imprescriptible rights
of man. These rights are liberty, property, security, and resistance to oppression.
•

Bill of Rights 1791 – 10 US Constitution Amendments
•Amendment I.
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.

•Amendment II.

A well regulated Militia, being necessary  for the Security of a free State, the right of the
people to keep and bear Arms shall not be infringed.
•

Post WW2 – Universal Declaration of Human Rights
•FDR: Search for 4 great freedoms
•Freedom from fear
•Freedom from war
•Freedom to speak
•Freedom of religion
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•We the people of United Nations are determined to save succeeding generations from the scourge of
war, which twice in our lifetime has brought untold sorrow to mankind.
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•- E. Roosevelt: human rights start in small places, close to home – so close and so small that
they cannot be seen on any maps of the world. Yet they are the factory, farm, or office where he
works

Post WW2 – Universal Declaration of Human Rights
•
•„Disregard and contempt for human rights have resulted in barbarous acts which have outraged the
conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of
the common people. …. All human beings are born free and equal in dignity and rights.”
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•Central idea = inherent dignify of human beings and the universality of their rights
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•Recognition of pre-existing rights
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•Focus on socio-economic rights along the more familiar civil and political rights

European HR Regime (CoE) and European Union
1.Strasbourg: Council of Europe
2.
2.Luxembourg: European Union
3.
3.
1.

Council of Europe
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Global physical integrity rights
1.
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Global physical integrity rights
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Global physical integrity rights
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1.

Differences across regions
1.
1.
•Europe
•Americas
•Africa
•Islamic states
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•European states the most willing to be internationally bound
1.
1.
1.

Why do States Ratify Treaties?
1.Why is it important?
2.
2.What is a ratification?
3.
3.
1.

Differences across regions
1.
1.
•In the text of a convention
•In the activity of the control mechanism
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•Western approach?
•European approach?

Expansion of rights (in IR)
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Smekal, Šipulová, Pospíšil, Janovský, Kilian. Making Sense of Human Rights Commitments: A Story of
Two Emerging European Democracies. MUNI Press 2017.

Expansion of rights (NUMBER)
•
•
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Smekal, Šipulová, Pospíšil, Janovský, Kilian. Making Sense of Human Rights Commitments: A Story of
Two Emerging European Democracies. MUNI Press 2017.

Expansion of rights: Why do states ratify HR?
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Expansion of rights: Why do states ratify HR?
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C causal chain.jpg

European Approach?
1.
1.
•Differences among states? (right to life)
•Differences within the states
•
•Highest level of norm diffusion – treaties, constitutions, supranational courts + constitutional
courts (frequent references, conferences ,academia, activists, …)

EU
1.
1.

CoE
1.
1.

Council of Europe
1.
1.
•Established 1949
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•Intergovernmental (compared to EU)
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•ECtHR and a network of various bodies
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•ECHR plus more than 200 treaties
•European Social Charter
•European Convention on Human Rights
•
•47 members

Winston Churchill – Zurich Speech
1.
1.
“What is this sovereign remedy? It is to recreate the European fabric, or as much of it as we can,
and to provide it with a structure under which it can dwell in peace, safety and freedom. We must
build a kind of United States of Europe. In this way only will hundreds of millions of toilers be
able to regain the simple joys and hopes which make life worth living. The process is simple. All
that is needed is the resolve of hundreds of millions of men and women to do right instead of wrong
and to gain as their reward blessing instead of cursing.
We all know that the two World Wars through which we have passed arose out of the vain passion of
Germany to play a dominating part in the world. In this last struggle crimes and massacres have
been committed for which there is no parallel since the Mongol invasion of the 13th century, no
equal at any time in human history. The guilty must be punished. Germany must be deprived of the
power to rearm and make another aggressive war. But when all this has been done, as it will be
done, as it is being done, there must be an end to retribution. There must be what Mr Gladstone
many years ago called a “blessed act of oblivion”.
1.

Winston Churchill – Zurich Speech
1.
1.
I am now going to say something that will astonish you. The first step in the re-creation of the
European family must be a partnership between France and Germany. In this way only can France
recover the moral and cultural leadership of Europe. There can be no revival of Europe without a
spiritually great France and a spiritually great Germany.
…
I now sum up the propositions which are before you. Our constant aim must be to build and fortify
the United Nations Organisation. Under and within that world concept we must recreate the European
family in a regional structure called, it may be, the United States of Europe, and the first
practical step will be to form a Council of Europe. If at first all the States of Europe are not
willing or able to join a union we must nevertheless proceed to assemble and combine those who will
and who can.

Council of Europe
1.
1.
•Hague 1948: The Congress of Europe
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•Message to Europeans
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Council of Europe: Statute
1.
1.
•Preamble
•Convinced that the pursuit of peace based upon justice and international co-operation is vital for
the preservation of human society and civilisation;
•
•Reaffirming their devotion to the spiritual and moral values which are the common heritage of
their peoples and the true source of individual freedom, political liberty and the rule of law,
principles which form the basis of all genuine democracy;
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•

Council of Europe: Statute
1.
1.
•Membership
•Article 3
Every member of the Council of Europe must accept the principles of the rule of law and of the
enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and
collaborate sincerely and effectively in the realisation of the aim of the Council as specified in
Chapter I.
•Article 4
Any European State which is deemed to be able and willing to fulfil the provisions of Article 3 may
be invited to become a member of the Council of Europe by the Committee of Ministers. Any State so
invited shall become a member on the deposit on its behalf with the Secretary General of an
instrument of accession to the present Statute.
•
• Article 8
•
Any member of the Council of Europe which has seriously violated Article 3 may be suspended from
its rights of representation and requested by the Committee of Ministers to withdraw under Article
7. If such member does not comply with this request, the Committee may decide that it has ceased to
be a member of the Council as from such date as the Committee may determine.

ECtHR
1.
1.

Bringing a case to ECtHR
1.
1.
•Who
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•When
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•Where
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•Which rights?

Proportionality test
1.
1.
•Relative rights – any limitation to the right must be
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•Prescribed by the Law
•Necessary in a democratic society
•Pursuing legitimate aim
•
•Proportionality means that the interference must be no more than is absolutely necessary to
achieve one of the aims in the HRA/Convention
•
ARTICLE 8
Right to respect for private and family life
1.Everyone has the right to respect for his private and family life, his home and his
correspondence.
2.
2. There shall be no interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.

1.
1.


ECtHR
1.
1.

ECtHR
1.
1.

ECtHR
1.
1.

ECtHR
1.
1.

1.
1.


Selection of ECtHR judges
1.
1.
•47 judges
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•Decide in formations:
•Single judge
•Three-member chamber
•Seven-member chamber
•Grand chamber
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•Each state nominates 3 candidates
•PACE interviews and selects one judge per country
•Many controversies

Current issues
1.
1.
•3 crises negatively impacting the ECtHR’s legitimacy
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•Backlog (victim of its own success)
•Non-implementation
•Populist challenge to ECtHR
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•Judicialization
•Independence
•Backslash / pushback against the ECtHR
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(Populist) challenge to ECtHR
1.
1.
•Non-majoritarian difficulty squared
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•A. Bickel: counter-majoritarian difficulty of constitutional review
•Waldron: institutions must respect the fact of deep conflict among citizens on substantive issues
•only unconstrained majority rule among elected parliamentarians treats all citizens as political
equals. Human rights constraints based on judicial review of legislation, on the other hand,
violate citizens’ equal dignity
• “it is where responsible representatives of the people engage in what they would probably
describe as the self-government of the society.”
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•Any constraint of the legislator = x self-government
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(Populist) challenge to ECtHR
1.
1.
•5 Objections towards constraints on legislator:
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•1. power of judges cannot be more than power of citizens
•2. skewed outcomes
•3. role of state (Bellamy: too much focus on negative social and political rights)
•4. Mistaken conception of the person (democracy does not endanger individual, tyranny of majority
is limited by a sense of justice)
•5. damage to public political culture
•Bellamy: political institutions should allow perpetual contestation about interests, rights,
policies
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(Populist) challenge to ECtHR
1.
1.
•ECtHR’s response
•Margin of appreciation
•Principle of subsidiarity
•Weak review
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•A. Follesdal:
•Liberal contractualism: social institutions must satisfy principles of legitimacy
•Democratic rule with constraints on legislatures may provide important assurance why citizens
should trust institutions
•The least dangerous branch (risk of domination is small)
•ECtHR does not replace political, democratic domestic contestation
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•BUT: the real challenges
•Quality of judicial deliberation
•Risk of unaccountable judges
•Social legitimacy
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Backlash against international HR courts
1.
1.
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•Resistance to ICs
•Who?
•Why?
•How?
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• pushback
• backlash
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•UK confusion
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1.
1.


DH vs Czech Republic
1.
1.

DH vs Czech Republic
1.
1.

ECtHR: Carter v Russia
1.
1.
•21 September 2021,
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•Article 2
• procedural
• substantive
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"The ECHR hardly has the authority or technological capacity to possess information on the matter.
There are still no results from this investigation and making such claims is, at the very least,
unsubstantiated”. (Dmitry Peskov)
Alexander Litvinenko

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