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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett, Kate

Part IV The Content of International Responsibility, Ch.51.3 Responsibility for Violations of Human Rights Obligations: European Mechanisms

Jean-Paul Costa

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

(p. 763) Chapter 51.3  Responsibility for Violations of Human Rights Obligations: European Mechanisms

The European Convention on Human Rights,1 signed in Rome on 4 November 1950, established mechanisms of State responsibility for breaches of human rights which were unique at that time. This responsibility has particular characteristics which will be analysed in this Chapter. It will also be necessary to say a few words on another international instrument which was also signed in the context of the Council of Europe, the European Social Charter.2

The responsibility of States under the European Convention on Human Rights (and incidentally under the European Social Charter) thus entails specific characteristics which are not found in the law of State responsibility more generally. One of these characteristics is the fact that it is not generally an inter-State resort, but it is mainly individual applications or complaints which oblige States to answer for their acts or omissions with regard to natural (or legal) persons who are the victims of injury caused by a State’s acts or omissions.

(p. 764) Responsibility of States under the European Convention on Human Rights

The European Convention on Human Rights originally foresaw a complex institutional mechanism which would operate through three institutions: the European Commission of Human Rights, the Committee of Ministers of the Council of Europe, and incidentally, even though its role was already fundamental, the European Court of Human Rights.

Since Protocol No 11 to the Convention came into force on 1 November 1998,3 this mechanism has been profoundly changed and also simplified. The European Commission of Human Rights, which previously ruled on the admissibility of claims and had a filtering function, disappeared. The European Court of Human Rights became a single and permanent organ taking decisions on both admissibility and substance. Finally, the Committee of Ministers of the Council of Europe retained a role which is not jurisdictional or quasi-jurisdictional; it supervises the execution of final judgments of the European Court of Human Rights.4

The European Court of Human Rights is thus the oldest international court in the field of human rights. It is currently composed of 47 judges, one judge for each High Contracting Party to the Convention. These judges are elected by the Parliamentary Assembly of the Council of Europe, which elects one candidate from a list of three proposed by the government of that State. The Court only sits in plenary to discuss administrative and budgetary issues, to amend the Rules of Court and to conduct internal elections or in order to elect the Registrar and Deputy Registrar. The Court’s judicial formations comprise committees of three judges, whose only power is to strike out applications which are inadmissible or manifestly ill-founded; Chambers of seven judges who rule on admissibility and merits, and a Grand Chamber of 17 judges, which has the same function as Chambers but deals with the most sensitive applications, or applications which raise important questions of interpretation and application of the Convention. A Grand Chamber can be involved either if a Chamber decides to relinquish jurisdiction in favour of it5 or if, after a judgment has been delivered by a Chamber, the case is referred to the Grand Chamber.6

In the very great majority of cases the applicants are natural or legal persons, and even though the inter-State procedure exists, it has only been used in a few cases, although those cases are usually of great political importance. The last inter-State application decided by the Court was Cyprus v Turkey,7 which gave rise to a judgment of the Grand Chamber in May 2001. Two inter-State applications by Georgia against Russia, introduced in March 2007 and August 2008, are pending.

The judges of the Court are assisted in their task by the registry which is composed of lawyers of all nationalities and has highly qualified and specialized staff. The Court gives decisions and judgments on the basis of the report of a judge rapporteur. By virtue of a rule contained in the Convention itself, the judges elected in respect of a State always sit in cases concerning that State in the Chambers and Grand Chamber; if they are absent or unable to sit, the State is invited to designate an ad hoc judge.8

(p. 765) Article 19 of the Convention provides that ‘[t]o ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights’. It should be added that the Court has the competence to interpret and apply the Convention. This is provided for in article 32 of the Convention, and article 32(2) reads: ‘[i]n the event of dispute as to whether the Court has jurisdiction, the Court shall decide.’ Finally, pursuant to article 46, the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. The final judgment of the Court is transmitted to the Committee of Ministers of the Council of Europe, which supervises its execution.

(a)  The notion of the breach of rights and freedoms of the Convention

It must be recalled that the rights and freedoms listed in the Convention and its Protocols are mainly civil and political; economic and social rights are principally contained in the European Social Charter. It must be added that State responsibility affects all State authorities, whether executive or legislative or the national judicial authorities. Furthermore, the more or less decentralized nature of a State, including the fact that a State may or may not have a federal structure, is of no importance to the issue of State responsibility overall. An act by any State authority can thus engage the responsibility of a State. For example, in Selmouni v France,9 France was held responsible for torture by reason of the actions of certain police officers who had committed such acts against persons in police custody who were subsequently imprisoned for drug trafficking.

In principle, the Court abstains from examining in the abstract the compatibility of legislative or constitutional provisions with the articles of the Convention and its Protocols. Rather, it exercises concrete review over the breach of these articles by legal acts or practical actions of the defendant States. Nevertheless, legislation may be indirectly but necessarily censured by the European Court of Human Rights for incompatibility with one of the guaranteed rights or freedoms. For example, in Dudgeon v United Kingdom,10 a law which punished homosexual activities between adults that was in force in Northern Ireland at the time was condemned by the Court.

The question of violation is evidently a question of substance that implies that the application presented to the Court is admissible. The concept of admissibility will be analysed in subsection (c).

(b)  The notion of ‘jurisdiction’ of defendant States and the problems of extra-territorial responsibility

The jurisdiction of defendant States within the meaning of article 1 of the Convention (‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’) seems to limit the responsibility of the High Contracting Parties to persons within their jurisdiction, and has given rise to some difficulties in interpretation.

It must first be noted that, according to the settled case law of the Commission and the Court, it is not only the nationals of a State but also foreigners residing on its territory that come within a State’s jurisdiction. This follows from the term ‘everyone’ in article 1. (p. 766) However, contracting States have the right to control entry, stay and removal of nonnationals under a well-established principle of international law (see for example Ahmed v Austria,11 which indicates that neither the Convention nor its Protocols establish the right to political asylum which is protected by the Geneva Convention of 1951). But foreigners who reside on the territory of a State party to the Convention must in principle benefit from all the other rights and freedoms which are guaranteed by the Convention and its Protocols. Thus, the Court has decided that only very compelling reasons can lead it to regard a difference in treatment that is exclusively based on nationality as compatible with the Convention (see Gaygusuz v Austria12 and Koua Poirrez v France,13 which concerned social benefits).

As for the international responsibility of the defendant State for acts of judicial authorities or breaches by the national legislator of the obligation resulting from article 1, see the cases of Lukanov v Bulgaria14 and Young, James and Webster v United Kingdom.15

The expression ‘within their jurisdiction’ often poses difficult problems in international law, however. The first is whether the responsibility of a State can be engaged by the fact that another State, even one that is not a party to the Convention, violates or risks violating the rights and freedoms guaranteed by the Convention and its Protocols. In the important Soering v United Kingdom16 judgment the Court held that the extradition of a foreigner to a State that is not a party to the Convention may, if it is carried out, breach article 3 of the Convention, which prohibits inhuman and degrading treatment (the case concerned ‘death row’ in American prisons for prisoners waiting to be executed or pardoned). The Court, with a certain audacity, ruled that the responsibility of the United Kingdom would be engaged under article 3 if it extradited the applicant to the United States. Similarly, the deportation of a person to another State, even if it is not a party to the Convention, can engage the responsibility of the deporting State (see Cruz Varas and others v Sweden17 and Vilvarajah and others v United Kingdom18). In all these cases, the deported person resided in the territory of the State party. In a very different set of circumstances, in Pellegrini v Italy the Court had to rule on an application against Italy by a person who considered that the judgments of the Vatican courts had violated her rights under article 6(1) of the Convention.19 After recalling that the responsibility of the Vatican, not a Contracting Party to the Convention, could not be engaged, the Court ruled that the responsibility of Italy could be engaged under article 6(1) because the Italian courts, by granting exequatur, had failed in their duty to ensure that these judgments respected the right to a fair trial, which had not happened in the case. In these cases, Soering on the one side, Pellegrini on the other, the Court in a way affirmed the principle of State responsibility as a sort of side effect of breaches of Convention standards by a State which has not ratified the Convention.

(p. 767) Similarly, in Drozd and Janousek v France and Spain,20 a case which concerned Andorra and which led to a judgment in June 1992, the Court indicated that the term ‘jurisdiction’ is not limited to the national territory of the High Contracting Parties; their responsibility can be triggered by acts emanating from their organs and having effect outside their national territory. Even though the judgment concluded that there was no violation of the Convention, it established an important principle which broadens the responsibility of States.

The issue of Cyprus has given rise to several decisions and judgments of the Commission and the European Court of Human Rights. The most important of these cases, Loizidou v Turkey,21 found that the responsibility of Turkey was engaged for breaches of human rights in the northern part of the island, since the continuous presence of the Turkish military demonstrated that it fell ‘within the jurisdiction of Turkey’ which in practice exercised total control over the territory; all the more so since the Turkish Republic of Northern Cyprus (TRNC) had not been recognized as a State by the international community, apart from Turkey. On the other hand, both in Loizidou and Cyprus v Turkey, the Court considered that, in conformity with international law, some arrangements and legal transactions (for example, the civil registration of births, marriages and deaths in the northern part of the island) were valid, since not to recognize them would be detrimental to the inhabitants of this territory. Also, the courts of Northern Cyprus must in principle be considered as judicial authorities, before which, at least in some cases, local remedies must be exhausted before resorting to the organs of the Convention. In this regard, the European Court of Human Rights drew upon the Advisory Opinion of the International Court of Justice in Namibia.22

The Commission and the Court have also dealt with other cases concerning the extraterritorial exercise of the competence of a State, for example in cases concerning acts committed abroad by diplomatic or consular agents, or on board aircraft registered in the State in question, or a vessel flying its flag. As the Court stated in Banković,23 in these situations ‘customary international law and treaty provisions have recognized the extra-territorial exercise of jurisdiction by the relevant State’.24

It was in the case of Banković and others v Belgium and others that the Court had the opportunity to confirm, following the principles of interpretation set out in the Vienna Convention on the Law of Treaties,25 that article 1 of the Convention imposes an ‘essentially territorial’ responsibility. In its decision on admissibility, delivered by the Grand Chamber in December 2001, the Court sought to put a stop to excessive extra-territorial interpretations of State responsibility. The case concerned the bombing of Belgrade by NATO forces during the Kosovo conflict. The Court decided that the applicants, victims of these bombings or relatives of victims, did not come within the jurisdiction of States (p. 768) that are parties of the Convention and members of NATO. In a statement of principle, the Court recalled that:

the Convention is a multi-lateral treaty operating, subject to article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.26

Furthermore, the application in Senator Lines GmbH against member States of the European Union27 raised the important question whether the responsibility of States parties to the Convention could be engaged by breaches of the Convention by organs of an international organization of which they are members. However, because the applicant company had lost its victim status (following the cancellation of the fine that was imposed by the European Commission), the application was declared inadmissible. It is further accepted that an application that questions acts or omissions resulting from United Nations Security Council Resolutions is not admissible (missions of KFOR and UNMIK in Kosovo).28

(c)  Individual applications to the European Court of Human Rights

As has been mentioned, individual applications must fulfil certain conditions for admissibility, which are set out in articles 34 and 35 of the Convention.

First, the applicant must be a victim within the meaning of article 34. In principle, the applicant must be the personal and direct victim of the breaches of the Convention rights and freedoms complained of. This principle has been frequently cited in the case law of the Court, for example in Otto-Preminger-Institut v Austria.29 But the Court did not limit this notion of a personal victim in a way that would be absurd or contrary to human rights. It has always held that the parents or family of a deceased person must have the quality of a victim and must be able to substitute the deceased person, even if it was that person who introduced the application (see for example X v France,30 which concerned an application by a haemophiliac who had been infected with AIDS and died during the proceedings), provided that the parents or family take up the proceedings. Nevertheless, there must be a sufficient link between the alleged breach and the person of the applicant. This person must have directly suffered the effects of the breach (see for example Norris v Ireland31). There can be exceptions to this principle, such as in Dudgeon v United Kingdom,32 mentioned above, (p. 769) where the criminal proceedings against the applicant were abandoned and where he showed that the existence of the law posed a potential threat that could materialize. Another example is the case Association Ekin v France,33 which concerned the compatibility with article 10 of the Convention—the guarantee freedom of expression—of a decree allowing the Minister of the Interior to ban foreign publications. Although the applicant company had obtained satisfaction at the domestic level in that the Conseil d’Etat had annulled the ban on one of its publications, the Court found that it had retained its victim status because the Conseil d’Etat’s refusal to declare the decree incompatible with the Convention meant that there was still a law in the domestic order which posed a threat to its freedom of expression in future.

On the other hand, the Court has ruled that an actio popularis is inadmissible, ie an application by a person who is not directly affected by the act of the defendant State (see for example Klass and others v Germany34).

Applicants must also exhaust domestic remedies, exhaustion being understood according to the generally recognized principles of international law. Further, they must apply to the Court within six months of the final internal decision being taken.35 The rule of exhaustion of domestic remedies, which applies to both inter-State cases and individual applications,36 reflects the principle of subsidiarity: it is up to the States themselves to respect their obligations and thus to prevent or redress human rights violations. The Court is only a final resort, and only exercises ‘European control’ over the measures taken by States to this effect. But the remedies must be accessible and adequate, and therefore effective, not only in theory but also in practice. The case law on this point is abundant and consistent (see for example Stögmüller v Austria37 or Akdivar and others v Turkey38). As for the six-month time limit, it constitutes a limitation which calls for a restrictive interpretation, according to the general principles of law.39

The other conditions of admissibility require hardly any comment. Applications must not be anonymous, they must not be essentially the same as an application already examined by the Court or one already submitted to another body of inquiry or settlement (such as the United Nations Human Rights Committee where the defendant State has accepted the Optional Protocol40); and they must not be incompatible with the European Convention on Human Rights ratione materiae, loci, personae, or temporis, or manifestly unfounded.

As already stated, committees of three judges reject applications as inadmissible or manifestly ill-founded, provided that the three judges are unanimous. The Chambers (or the Grand Chamber as in the Banković case) can also take decisions of inadmissibility.

Decisions which declare an application inadmissible, or which strike it out, are final. This is not the case for Chamber judgments: under article 43, the private party or the State can, within three months and ‘in exceptional cases’, request that the case be referred to the Grand Chamber. This is not a referral as of right, though. A panel of five judges will accept (p. 770) the referral ‘if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance’.41

(d)  Consequences of the responsibility of States: just satisfaction and other forms of execution of the judgments of the Court

States are responsible for the violation of rights and freedoms which they have undertaken to guarantee to persons within their jurisdiction; those persons are the beneficiaries of this treaty obligation.

Therefore, if a final judgment in its operative provisions finds that there has been a violation of one or several articles of the Convention or its Protocols, the State must in principle provide just satisfaction to the injured party (usually the applicant or otherwise his successors) under article 41 of the Convention. It is necessary that the applicant party requests this and that the Court in the operative provisions grants, in whole or part, what has been claimed, although sometimes the Court declares that the finding of a violation constitutes sufficient satisfaction in the case in issue. The compensation awarded under article 41, which is set by the Court in equity, can comprise material damage if there is a causal link between the breach or breaches and the material prejudice suffered by the victim; nonpecuniary damage which can be the result of emotional suffering, pain, distress, or other similar elements; and, finally, costs and expenses, particularly legal fees. As a matter of case law, the Court has decided that if the State does not pay this award within three months of the judgment, the amount will be increased by the legal interest rates in the State in question. However, this is moratory interest: it is not capitalized to produce interest itself.

The compensation which is due under article 41, however, grave the breach of human rights may be, is justifiably important for the victims or their successors. In some cases, it is unfortunately the only possible form of reparation, since certain breaches are irreversible.

Yet it is not always the only possible form of reparation. First, if the breach stems from the application of laws or regulations which are held to be incompatible with the Convention, it is up to the State to repeal or modify these provisions to bring bring them into conformity with the Convention. For example, following the judgment in Inçal v Turkey,42 in which the Court ruled that the composition of the Turkish security courts was contrary to article 6(1)—which requires that tribunals be independent and impartial—Turkey modifi ed the law and even revised its Constitution to execute the judgment. Similarly, France repealed an article of the Civil Code which reduced by half the inheritance of adulterine children in order to comply with the Mazurek43 judgment of 2000. The Court had held that this article was incompatible with article 14 of the Convention (non-discrimination) in combination with article 1 of the Protocol No 1 (protection of property). Many other examples could be given. Despite the fact that the authority of res judicata under article 46(1) is only relative, in practice it also happens that States modify their laws in order to transpose the solutions resulting from a judgment against another State into their system, as a preventive measure.

Second, some States (especially France with its law on the presumption of innocence of 15 June 2000) have instituted mechanisms which require or allow the revision of internal (p. 771) proceedings (most often, and this is the case for this French law, in criminal proceedings) when the Court finds that they have breached the rules of a fair trial set out in article 6(1) of the Convention, or, more generally, where the procedure before the national courts has revealed a violation of the Convention.

Finally, wherever possible—for example, but this is only an example, where the applicant has been deprived of his or her property in violation of article 1 of the First Protocol—the best way of executing the judgment is to proceed to a restitutio in integrum, ie to restore the property to its owner.44

It is for the Committee of Ministers of the Council of Europe to supervise the execution of judgments. This generally works well. Sometimes, States will put forward financial or even political considerations in order to postpone the execution, but fortunately these cases are rare.

(e)  The devices resorted to by States to limit their responsibility: reservations, derogations, and immunities

First of all, when States sign or ratify either the Convention or its Protocols, it is quite common that they enter reservations to particular provisions, as permitted by article 57 of the Convention. Nevertheless, this article specifies that this only applies insofar as a law already in force on the territory of that State is not in accordance with the provision in question; it prohibits reservations of a general character and it requires that any reservations include a short summary of the law in question.

Furthermore, the Court has held that it has a general power of review over these three conditions and thus over the validity of reservations, whether they are denominated as such or are classified by the State as interpretive declarations.45 The jurisprudence of the Court interprets the validity of these reservations strictly.46

Second, without it being a reservation in the technical sense, States can limit (or enhance) the extent of their territorial responsibility. By virtue of article 56, which is sometimes called ‘the colonial clause’, States can at any time notify the Secretary General of the Council of Europe that the Convention will apply to one or all of the territories for whose international relations they are responsible. Under the same article, the provisions of the Convention are applied taking into account local requirements.47 For example, article 3 of the First Protocol (right to free elections) applies to Gibraltar (see Matthews v United Kingdom,48 where the State was held responsible for not having organized elections for the European Parliament for British nationals residing in Gibraltar, even though the government referred to an act of the Council of the European Communities of 1976 which excluded this territory from the elections for the Parliament).

Third, article 15 of the Convention allows States to take measures derogating from it in ‘time of war or other public emergency threatening the life of the nation’ (with the exception of articles 2, 3, 4(1), and 7), but only ‘to the extent strictly required by the exigencies of the (p. 772) situation’ and provided that they do not contradict other obligations under international law. They must inform the Secretary General of these measures, of the reasons and the date when they cease to be in force. According to its case law, the Court reviews the exercise of this right of derogation—especially the notion of the ‘extent strictly required’.49

Finally, the jurisdictional immunities of States, whether derived from international or internal law, are quite often invoked by defendant States before the Court to escape responsibility in whole or in part (see for example Al Adsani,50 Mc Elhinney,51 and Fogarty,52 three applications which led to judgments in November 2001). Nevertheless, the tendency of the Court is to limit the scope of both types of immunity.53

Responsibility of States under the revised European Social Charter

The European Social Charter, signed in Turin on 18 October 1961, is another instrument which was elaborated within the framework of the Council of Europe, like the European Convention on Human Rights. It has been the subject of a long process of revision: the revised European Social Charter54 was opened for signature in 1996 and came into force on 1 July 1999. As of 29 June 2007 it had been signed by 43 States and ratified by 14 States.

The Charter comprises an ambitious catalogue of social and economic rights and thus completes the European Convention on Human Rights. Nevertheless, it differs from the Convention in several ways.

First, these rights are not accepted en bloc by the States that have ratified the Social Charter. Under a mechanism that is both original and complex, States undertake to accept first that their social policies have the aim of establishing conditions that will allow them to implement the rights and principles listed in the first part of the Charter. Then, they accept to be bound by at least six of the nine main articles of the second part, and finally to be bound by those of the other numbered articles or paragraphs of the second part that they choose, provided that they are bound by in total a minimum of 16 articles or 63 numbered paragraphs.

Second, the European Social Charter is not justiciable before the European Court of Human Rights. Nothing prevents the Court from being inspired by the Charter, and it is so inspired (for example in matters of freedom of association, which is also recognized under article 11 of the Convention), just as it is inspired by other international instruments; but applicants cannot invoke the responsibility of States that breach their obligations under the Charter before the Court. Nevertheless, there exists an institutional mechanism in the form of a committee of independent experts, which since 1999 is called the European Committee of Social Rights. This committee is composed of 15 experts, elected by the Committee of Ministers of the Council of Europe with a mandate of six (p. 773) years, which can be renewed once. They sit individually and must be independent and impartial and be available for their function. The Committee meets seven times a year, each of its sessions lasting a week.

Third, the Committee does not rule on individual (or inter-State) applications, as the European Court of Human Rights does. Rather it rules on the basis of reports, which States must present every year. It therefore takes decisions of compatibility or non-compatibility with the Charter. In the case of non-compatibility, a committee composed of representatives of the States and observers (the representatives of the European social partners) examines the decision. Then, the Committee of Ministers may, by a two-thirds majority, adopt a recommendation calling on the State concerned to take suitable measures to remedy the breach. Additionally the European Committee of Social Rights can examine collective complaints by European social partners, national employer and workers’ organizations and, under certain conditions, national or international non-governmental organizations, on the basis of the Additional Protocol providing for a system of collective complaints, which came into force in 1998. It considers the admissibility of the collective complaint and then whether it is well-founded. If it is well-founded, the Committee of Ministers can adopt a resolution and/or a recommendation against the State. Between 1 July 1998 and 1 May 2008, 51 collective complaints were registered at the secretariat of the European Social Charter. The European Committee of Social Rights has ruled on 46 of them, and the Committee of Ministers has adopted 31 resolutions and one recommendation (which concerned France).

It is clear that State responsibility in this area is at an embryonic stage. But it is under development, and it can be assumed that responsibility with regard to the Charter will develop in the years to come, which is certainly desirable considering the ever-increasing importance of economic and social rights.

Conclusion

In the greater Europe, the responsibility of States in the area of human rights breaches has already—mainly as far as rights and freedoms guaranteed under the Convention are concerned—attained a high degree of sophistication and protection. But after more than half a century’s existence for these mechanisms, four unknown factors remain.

First, the European Court of Human Rights is the victim of its own success. 1000 applications were registered in Strasbourg in 1988, 10,000 in the year 2000, and almost 50,000 in 2008! It is high time to introduce reforms to allow the Court to confront the most serious human rights violations and to play the role of a constitutional instrument of the European order that it recognizes in itself.55 This is the aim of Protocol No 14; its provisions should bring about increased efficiency by affording the Court the procedural means and the necessary flexibility to consider all applications within an acceptable timeframe, while at the same time allowing it to concentrate on the most important matters that require thorough examination.56

(p. 774) Second, social and economic rights are insufficiently protected. Both at the domestic and European levels, States are reluctant to engage their responsibility in this area. This is without doubt one of the challenges of the 21st century.

Third, the Charter of Fundamental Rights of the European Union, signed in Nice in 2000, only acquired binding force on 1 December 2009. How will this instrument, that belongs to the Europe of 27, interact with the Convention and the Social Charter, which cover the greater Europe, with its 47 States, including Russia? And when will the European Union adhere to the European Convention on Human Rights? And what consequences will this have on the responsibility of the European Union and its members in the area of human rights violations?

Finally, how will these European mechanisms, of which we can be proud, fare when confronted with grave human rights violations, such as in the Balkans, Kurdistan, or Chechnya? And how will they supplement and interact with the international criminal courts that are in developmental stages?

None of these queries should in any case tarnish the record of what has been the world’s first mechanism of international judicial control of States in the area of human rights, bringing about an extension of State responsibility and the progress of rights and freedoms in Europe.

Further reading

  • A Bultrini, ‘La responsabilité des Etats membres de l’Union européenne pour les violations de la Convention européenne des droits de l’homme imputables au système communautaire’ (2002) 49, Revue trimestrielle des droits de l'homme 5
  • JP Costa, ‘La responsabilité de l’Etat au regard de la Convention européenne des droits de l’homme à raison d’actes accomplis en vertu de ses obligations internationals’, in P Tavernier (ed), La France et la Cour européenne des Droits de l’Homme: la jurisprudence en 2005: présentation, commentaires et débats (Brussels, Bruylant, 2006), 35
  • F Commans and MT Kamminga, Extraterritorial Application of Human Rights Treaties (Oxford, Intersentia, 2004)
  • P D’Argent, ‘Le droit de la responsabilité internationale complété? Examen des principes fondamentaux et directives concernent le droit à un recours et à réparation des victimes de violations flagrantes du droit international des droits de l’homme et de violations graves du droit international humanitaire’ (2005) 51 AFDI 27
  • C Loucaides, ‘Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Banković case’ (2006) European Human Rights Law Review 391
  • I Panoussis, ‘L’obligation générale de protection des droits de l’homme dans la jurisprudence des organes internationaux’ (2007) 70, Revue trimestrielle des droits de l'homme 427
  • A Randelzhofer and C Tomuschat (eds), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (The Hague, Nijhoff, 1999)
  • A Sanjosa Gil, ‘La responsabilité internationale des Etats pour les violations des droits de l’homme’, in F Ainsa (ed), Karel Vasak amicorum liber: les droits de l’homme à l’aube du XXIe siècle (Brussels, Bruylant, 1999), 783
  • P Tavernier, ‘La contribution de la jurisprudence de la Cour européenne des droits de l’homme relative au droit de la responsabilité internationale en matière de réparation. Une remise en cause nécessaire’ (2007) 72, Revue trimestrielle des droits de l'homme 945

Footnotes:

ETS No 5.

ETS No 35.

ETS No 155.

Art 46 (2) European Convention on Human Rights.

Ibid, art 30.

Ibid, art 43.

Cyprus v Turkey (App No 25781/94), ECHR Reports 2001-IV [GC].

Art 27(2), European Convention on Human Rights.

Selmouni v France (App No 25803/94), ECHR Reports 1999-V [GC].

10  Dudgeon v United Kingdom (App No 7525/76), ECHR, Series A, No 45 [GC] (1981).

11  Ahmed v Austria (App No 25964/94), ECHR Reports 1996-VI.

12  Gaygusuz v Austria (App No 17371/90), ECHR Reports 1996-IV.

13  Koua Poirrez v France (App No 40892/98), ECHR Reports 2003-X.

14  Lukanov v Bulgaria (App No 21915/93), ECHR Reports 1997-II.

15  Young, James and Webster v United Kingdom (App Nos 7601/76; 7806/77), ECHR Series A, No 44 (1981).

16  Soering v United Kingdom (App No 14038/88), ECHR, Series A, No 161 [GC] (1989).

17  Cruz Varas and others v Sweden (App No 15576/89), ECHR, Series A, No 201 [GC] (1991).

18  Vilvarajah and others v United Kingdom (App Nos 13163/87; 13164/87; 13165/87; 13447/87; 13448/87), ECHR, Series A, No 215 (1991).

19  Pellegrini v Italy (App No 30882/96), ECHR Reports 2001-VIII.

20  Drozd and Janousek v France and Spain (App No 12747/87), ECHR, Series A, No 240 (1992).

21  Loizidou v Turkey Jurisdiction (App No 15318/89), ECHR, Series A, No 310 [GC] (1995) and Loizidou v Turkey, Merits (App No 15318/89), ECHR Reports 1996-VI [GC].

22  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16.

23  Banković v Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and United Kingdom (App No 52207/99), ECHR Reports 2001-XII [GC].

24  Ibid, para 73.

25  1155 UNTS 331.

26  Banković v Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and United Kingdom (App No 52207/99), ECHR Reports 2001-XII [GC], para 80.

27  Senator Lines GmbH v Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and United Kingdom (App No 56672/00), ECHR Reports 2004-IV [GC].

28  Behrami and Behrami v France and Saramati v France, Germany and Norway (App Nos 71412/01 and 78166/01), ECHR, Decision on Admissibility, 2 May 2007 [GC].

29  Otto-Preminger-Institut v Austria (App No 13470/87), ECHR, Series A, No 295-A (1994).

30  X v France (App No 18020/91), ECHR, Series A, No 234-C (1992).

31  Norris v Ireland (App No 10581/83), ECHR, Series A, No 142 [GC] (1988).

32  Dudgeon v United Kingdom (App No 7525/76), ECHR, Series A, No 45 [GC] (1981).

33  Association Ekin v France (App No 39288/98), ECHR Reports 2001-VIII.

34  Klass and others v Germany (App No 5029/71), ECHR, Series A, No 28 [GC] (1978).

35  Art 35(1), European Convention on Human Rights.

36  Ireland v United Kingdom (App No 5310/71), ECHR, Series A, No 25 [GC] (1978).

37  Stögmüller v Austria (App No 1602/62), ECHR, Series A, No 9 (1969).

38  Akdivar and others v Turkey (App No 21893/93), ECHR Reports 1996-IV [GC].

39  De-Becker v Belgium, (App No 214/56), European Commission of Human Rights, Decision on Admissibility, 9 June 1958.

40  Calcerrada Fornieles and Cabeza Mato v Spain, (App No 17512/90), European Commission on Human Rights, Decision on Admissibility, 6 July 1992.

41  See eg the judgment of the Grand Chamber in Burden v United Kingdom (App No 13378/05), ECHR, Judgment of 29 April 2008 [GC].

42  Inçal v Turkey (App No 22678/93), ECHR Reports 1998-IV [GC].

43  Mazurek v France (App No 34406/97), ECHR Reports 2000-II.

44  See eg Papamichalopoulos v Greece (App No 14556/89), ECHR, Series A, No 260-B (1993) and Papamichalopoulos v Greece (Article 50) (App No 14556/89), ECHR, Series A, No 330-B (1995).

45  Belilos v Switzerland (App No 10328/83), ECHR, Series A, No 132 (1988).

46  Ibid, for a reservation that was ruled incompatible with art 57; see also Chorherr v Austria (App No 13308/87), ECHR, Series A, No 226-B (1993) for a reservation that was rated compatible; or Gradinger v Austria (App No 15963/90), ECHR, Series A, No 328-C (1995) for a reservation that was rated incompatible.

47  See Tyrer v United Kingdom (App No 5856/72), ECHR, Series A, No 26 (1978) (concerning the Isle of Man).

48  Matthews v United Kingdom (App No 24833/94), ECHR Reports 1999-I [GC].

49  See Ireland v United Kingdom (App No 5310/71), ECHR, Series A, No 25 [GC] (1978); Brannigan and McBride v United Kingdom (App Nos 14553/89; 14554/89), ECHR, Series A, No 258-B [GC] (1993); Aksoy v Turkey (App No 21987/93), ECHR Reports 1996-IV. A and other's v United Kingdom (App No 3455/05), ECHR Judgment of 19 February 2004 [GC].

50  Al Adsani v United Kingdom (App No 35763/97), ECHR Reports 2001-XI [GC].

51  McElhinney v Ireland (App No 31253/96), ECHR Reports 2001-XI [GC].

52  Fogarty v United Kingdom (App No 37112/97), ECHR Reports 2001-XI [GC].

53  See Osman v United Kingdom (App No 23452/94), ECHR Reports 1998-VIII [GC]; Z and others v United Kingdom (App No 29392/95), ECHR Reports 2001-V [GC]; Cordova v Italy (No 1) (App No 40877/98), ECHR Reports 2003-I; Cordova v Italy (No 2) (App No 45649/99), ECHR Reports 2003-I.

54  ETS No 163

55  See eg Loizidou v Turkey, Jurisdiction (App No 15318/89), ECHR, Series A, No 310 [GC] (1995).

56  Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, 13 May 2004, ETS No 194 (in force 1 June 2010).