European System of HR Protection
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 30 September 2024

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

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.”

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
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•„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
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2.Luxembourg: European Union
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(Other relevant HR systems?)
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Council of Europe
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Global physical integrity rights
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Global physical integrity rights
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Differences across regions
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•Europe
•Americas
•Africa
•Islamic states
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•European states the most willing to be internationally bound
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Why do States Ratify Treaties?
1.Why is it important?
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2.What is a ratification?
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Differences across regions
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•In the text of a convention
•In the activity of the control mechanism
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•In the form of commitment (x reservations)
•In compliance

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

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: Why do states ratify HR?
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C:\Users\182643\AppData\Local\Packages\Microsoft.MicrosoftEdge_8wekyb3d8bbwe\TempState\Downloads\HR
C causal chain.jpg

Expansion of rights: Why do states ratify HR?
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EU
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CoE
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Council of Europe
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•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
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•47->46 members

First mention: Churchill 1943
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National Address, 21 March 1943, in an attempt to „peer through the mists of the future to the end
of the war.“

Winston Churchill – Zurich Speech
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“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.
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Winston Churchill – Zurich Speech
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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: Three narratives
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1.Prevention of war and massive attrocities and HR violations
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2.Bullwark against totalitarianism in Eastern Block
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3.Nascent „United States of Europe“
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Council of Europe
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•Hague 1948: The Congress of Europe
•Discussion of the future structure of the Council of Europe
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•Message to Europeans
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After WWII, politicians, artists, philosophers, economists, entrepreneurs, scientists and trade
unionists from all over Europe came together in The Hague in May 1948 to discuss the future of the
continent. Their final document, “Message to Europeans”, contained the ideas and institutions that
made possible the European integration process.
The Congress adopted political, economic and cultural resolutions, and a text, entitled Message to
Europeans stating that “Europe is threatened, Europe is divided, and the greatest danger comes from
her divisions. […] Alone, no one of our countries can hope seriously to defend its independence.
Alone, no one of our countries can solve the economic problems of today.

Council of Europe
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Result:
- Committee for the Study of European Unity, meetings between Nov 1948 and January 1949

Council of Europe
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•Nov 1948-Jan 1949 Committee for the Study of European Unity (to draw the blueprint)
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•Two competing schools of thought:
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•1. Classical IO
•Representatives of governments
•=> Committee of Ministers
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•2. Political forum
•Members of parliaments
•=> Consultative (Parliamentary) Assembly
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•Treaty of London 5 May 1949
•Trinity of demoracy, HR, RoL
•10 states (Belgium, Denmarsk, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden,
the United Kingdom)
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Result:
- Committee for the Study of European Unity, meetings between Nov 1948 and January 1949

Council of Europe: Statute
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•Preamble
•Convinced that the pursuit of peace based upon justice and international co-operation is vital for
the preservation of human society and civilisation;
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•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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•Goals:
•European political authority (Paul-Henri Spaak)
•Preparation of the European Convention on HR
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Council of Europe: Statute
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•Aim
•Article 1(a)
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The aim of the Council of Europe is to achieve a greater unity between its members for the purpose
of safeguarding and realizing the ideals and principles which are their common heritage and
facilitating their economic and social progress.
•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.
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• Article 8
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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.

Council of Europe: Structure
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•Secretary General
•Elected by PACE for 5 years
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•Committee of Ministers
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•Parliamentary Assembly
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•Congress of Local and Regional Authorities
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•European Court of Human Rights (ECtHR)
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•Commissioner for Human Rights
•Elected by PACE for 6 years (since 1999)
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•Conference of INGOs, Joint Council on Youth of the CoE, Information Offices, Congress of Local and
Regional Authorities
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•European Commission of Human Rights
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•Partial Agreements
•Venice Commission
•Group of States Against Corruption (GRECO)

ECtHR
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Milestones:
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Milestones
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•70 years since ratification of the ECHR
•25 years of the Protocol 11
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•700 million persons are served by the Convention
•1 million application
•26 000 judgments issued
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•25

Bringing a case to ECtHR
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•Who
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•When
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•Where
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•What rights?

Proportionality test
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•Relative rights (A 8-11) – any limitation to the right must be proportional. That means:
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•Prescribed by the Law
•Necessary in democratic society
•Pursuing legitimate aim
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•Proportionality means that the interference must be no more than is absolutely necessary to
achieve one of the aims in the HRA/Convention
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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.

Proportionality test
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•How is the test applied?
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•1. Does the case (petition) belong under the particular ECHR right? (I.e. is the Article of ECHR
applicable?)
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•2. Was there an interference in petitioner’s  right?
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•3. Was this interference based on Law/In accordance with the Law?
•Was it explicitly enabled by a legal act?
•Was it accessible?
•Was it clear enough?
•Was it predictable?
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•4. Did the interference follow one of legitimate aims (sometimes mentioned explicitly, sometimes
not)
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•5. Was the interference necessary in the democratic society?

Does not apply on positive obligations

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How does
it work?

ECtHR Statistics
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ECtHR Statistics
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ECtHR
2021
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ECtHR
2022
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ECtHR
2023
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ECtHR 2023
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ECtHR 2022
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ECtHR 2022
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ECtHR 2022
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Selection of ECtHR judges
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•46 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

ECtHR key dates:
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•5 May 1949 - Creation of the Council of Europe
•4 November 1950 - Adoption of the Convention
•3 September 1953 - Convention enters into force
•21 January 1959 - First members of the Court elected
•23-28 February 1959 - Court’s first session
•18 September 1959 - Court adopts its Rules of Court
•14 November 1960 - Lawless v Ireland
•1 November 1998 - Protocol 11 in force -> The New Court
•1 June 2010 - Protocol 14 enters into force
•1 August 2018 - Protocol 16
•16 March 2022 - Russia ceases to be a member state of the CoE (16 September 2022)

Current issues
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•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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•4th? Russia’s exit?
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•Judicialization
•Independence
•Backslash / pushback against the ECtHR
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(Populist) challenge to ECtHR
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•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
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•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
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•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
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•Resistance to ICs
•Who?
•Why?
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• pushback
• backlash
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•UK confusion
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DH vs Czech Republic
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DH vs Czech Republic
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WWW.JUSTIN.LAW.MUNI.CZ