EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

EUROPEAN COURT OF HUMAN RIGHTS IN ACTION

Alla Tymofeyeva (ed.)

Charles University Faculty of Law International Law Department Prague 2021

Authors: doc. JUDr. PhDr. Veronika Bílková, E.MA.

Chapter XI Chapter XII Chapter XIII Chapter VII

Mgr. Petr Hnátík

JUDr. Vladimír Janoušek Pysk, LL.M. Prof. JUDr. Pavel Šturma, DrSc. JUDr. Mgr. Alla Tymofeyeva, Ph.D.

Chapters I, II, III, IV, V, VI, VII, VIII, IX, X, XIV

The text-book is created within the framework of the internal competition for the distribution of funds from the Law Faculty Charles University in Prague under the CUNI institutional plan for the calendar year 2020. Subject sphere: ‘Profiling and innovation of training programs on the level of subjects/courses’.

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR European Court of Human Rights in action / Alla Tymofeyeva (ed.). – Prague : Charles University, Faculty of Law, International Law Department, 2021. – 217 stran Vydáno v nakladatelství Eva Rozkotová. – Obsahuje bibliografii ISBN 978-80-7630-011-8 (Univerzita Karlova, Právnická fakulta ; brožováno) * 341.645 * 341.231.14 * (4) * (075.8) * (094) – Evropský soud pro lidská práva – Convention for the Protection of Human Rights and Fundamental Freedoms (1950 listopad 4.)

– mezinárodní soudy – Evropa – ochrana lidských práv – Evropa – učebnice vysokých škol – dokumenty 341 – Mezinárodní právo [16] 37.016 – Učební osnovy. Vyučovací předměty. Učebnice [22]

All Rights Reserved © Univerzita Karlova, Právnická fakulta, Praha 2021

Vydala Univerzita Karlova, Právnická fakulta, ediční středisko v nakladatelství Eva Rozkotová, Na Ptačí skále 547, 266 01 Beroun ISBN 978-80-7630-011-8

CONTENTS

CONTENTS

3 8

ABOUT THE AUTHORS

ABBREVIATIONS INTRODUCTION

10 11

CHAPTER I. THE COURT WITHIN THE EUROPEAN HUMAN RIGHTS SYSTEM 13 1. INTRODUCTION 13 2. HUMAN RIGHTS ORGANISATIONS IN EUROPE 14 2.1 Organization for Security and Cooperation in Europe 14 2.2 European Union 15 2.3 Council of Europe 18 3. COUNCIL OF EUROPE TREATIES AND BODIES 19 3.1 Convention for the Protection of Human Rights and Fundamental Freedoms 19 3.2 European Social Charter 21 3.3 European Convention for the Prevention of Torture 21 3.4 Commissioner for Human Rights 22 3.5 Venice Commission 22 CHAPTER II. EUROPEAN COURT OF HUMAN RIGHTS 24 1. ABOUT THE COURT 24 2. THE COURT’S STRUCTURE 24 3. PROCEEDINGS BEFORE THE COURT 25 4. THE COURT’S DECISIONS AND JUDGMENTS 27 5. PILOT JUDGMENT PROCEDURE 28 6. INTERIM MEASURES 29 7. INTER- STATE APPLICATIONS 29 CHAPTER III. ADMISSIBILITY CRITERIA 31 1. MAIN PROVISIONS RELATING TO THE SUBJECT 31 Article 35 of the Convention – Admissibility criteria 31 Rule 47 of the Rules of Court – Contents of an individual application 31 2. ON ADMISSIBILITY IN GENERAL 33 3. HIERARCHY OF THE ADMISSIBILITY CRITERIA 33 3.1 Anonymous applications 34 3.2 Abuse of the right of an individual application 34 3.3 Substantially the same applications 34 3.4.Applications submitted to another international body 35 3.5.Incompatible applications 35 3.5.1 ratione personae 35 3.5.2 ratione loci 35 3.5.3 ratione temporis 35 3.5.4 ratione materiae 36 3.6 Non-exhaustion of all domestic remedies 36 3.7 Four months (former six-month rule) 36 3.8 Manifestly ill-founded applications 37 3.9 No significant disadvantage 37 KEY CASE-LAW 38

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CASE STUDY

39 39 41 41 41 41 43 43 44 44 46 46 48 48 48 50 52 53 55 55 55 57 57 58 59 60 60 62 62 64 65 65 66 70 70 69 74 74 75 75 76 77 77 79 54 70

Appeal

CHAPTER IV. RIGHTS RELATING TO PERSONAL LIBERTY

MAIN PROVISIONS RELATING TO THE SUBJECT Article 2 of the Convention Appeal – Right to life

General principles of the Court

Article 3 of the Convention – Prohibition of torture

General principles of the Court

Article 4 of the Convention – Prohibition of slavery and forced labour

General principles of the Court

Article 5 of the Convention – Right to liberty and security

General principles of the Court

KEY CASE-LAW CASE STUDIES

War crimes

Glasses Salary Kazakh

CHAPTER V. RIGHTS RELATING TO SPIRITUAL FREEDOM

MAIN PROVISIONS RELATING TO THE SUBJECT

Article 8 of the Convention – Right to respect for private and family life

General principles of the Court

Article 9 of the Convention – Freedom of thought, conscience and religion

General principles of the Court

Article 10 of the Convention – Freedom of expression

General principles of the Court

Article 11 of the Convention – Freedom of assembly and association

General principles of the Court

Article 12 of the Convention – Right to marry

General principles of the Court

KEY CASE-LAW CASE STUDIES

Churches

Fiancée

CHAPTER VI. RIGHTS RELATING TO PROCEDURAL SAFEGUARDS

MAIN PROVISIONS RELATING TO THE SUBJECT Article 6 of the Convention – Right to a fair trial

General principles of the Court

Article 7 of the Convention – No punishment without law

General principles of the Court

Article 13 of the Convention – Right to an effective remedy

General principles of the Court

KEY CASE-LAW CASE STUDIES

Komsomol Thief in law

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CHAPTER VII. RIGHT TO THE PROTECTION OF PROPERTY AND THE FIRST PROTOCOL TO THE CONVENTION

81 81 81 81 85 85 87 87 92 92 92 95 97 97 97 98 98 98 98 98 99 97

MAIN PROVISIONS RELATING TO THE SUBJECT

Article 1 of Protocol No. 1 to the Convention – Protection of property

General principles of the Court

Article 2 of Protocol No. 1 to the Convention – Right to education

General principles of the Court

Article 3 of Protocol No. 1 to the Convention – Right to free elections

General principles of the Court

KEY CASE-LAW CASE STUDIES

Bail

Polling stations

CHAPTER VIII. PROTOCOL NO. 4 TO THE CONVENTION

MAIN PROVISIONS RELATING TO THE SUBJECT

Article 1 of Protocol No. 4 to the Convention – Prohibition of imprisonment for debt

General principles of the Court and explanations

Article 2 of Protocol No. 4 to the Convention – Freedom of movement

General principles of the Court and explanations

Article 3 of Protocol No. 4 to the Convention – Prohibition of expulsion of nationals

General principles of the Court and explanations

Article 4 of Protocol No. 4 to the Convention – Prohibition of collective expulsion of aliens

General principles of the Court and explanations

KEY CASE-LAW CASE STUDIES

100 100 100 102 105

Travel ban

Aliens

Residence permit

CHAPTER IX. PROTOCOL NO. 7 TO THE CONVENTION

109

MAIN PROVISIONS RELATING TO THE SUBJECT 109 Article 1 of Protocol No. 7 to the Convention – Procedural safeguards relating to expulsion of aliens 109 General principles of the Court and explanations 109 Article 2 of Protocol No. 7 to the Convention – Right of appeal in criminal matters 110 General principles of the Court and explanations 110 Article 3 of Protocol No. 7 to the Convention – Compensation for wrongful conviction 111 General principles of the Court and explanations 111 Article 4 of Protocol No. 7 to the Convention – Right not to be tried or punished twice 112 General principles of the Court and explanations 112 Article 5 of Protocol No. 7 to the Convention – Equality between spouses 114 General principles of the Court and explanations 114 KEY CASE-LAW 115 CASE STUDIES 116 Removal 116 Forced confession 117 Independence Day 119

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CHAPTER X. RIGHTS OF LEGAL PERSONS UNDER THE CONVENTION

121 121 122 124 127 127 127 130 133 133 134 134 136 137 137 138 138 139 139 140 142 143 143 145 146 142 148 148 147 150 152 152 153 157 158 159 160 161 162 155

1. NOTION OF A LEGAL PERSON

2. ARTICLES OF THE CONVENTION APPLICABLE TO LEGAL PERSONS 3. CHANGES IN UNDERSTANDING OF THE NATURE OF LEGAL PERSONS

KEY CASE-LAW CASE STUDIES

Same-sex civil partnerships

The same judge

CHAPTER XI. VENICE COMMISSION AND THE COURT

1. VENICE COMMISSION 2. OPINIONS AND STUDIES

3. VENICE COMMISSION AND THE EUROPEAN COURT ON HUMAN RIGHTS

4. EXAMPLES OF OPINIONS AND STUDIES:

CHAPTER XII. TORTURE PREVENTION COMMITTEE AND ITS LINKS WITH THE COURT

1. ABOUT THE CPT 2. TYPES OF VISITS

3. MEMBERS OF THE CPT

4. CPT POWERS IN RESPECT OF THE STATES

5. VISITS AND REPORTS

6. RELATION BETWEEN THE CPT AND THE COURT

CHAPTER XIII. THE CZECH GOVERNMENT BEFORE THE COURT 1. LEGAL STATUS OF THE CONVENTION WITHIN THE CZECH LEGAL ORDER

2. OFFICE OF THE GOVERNMENT AGENT 3. LITIGATING BEFORE THE COURT

4. EXECUTION OF JUDGMENTS

5. OTHER ACTIVITIES

CHAPTER XIV. DEPARTMENT FOR THE EXECUTION OF JUDGMENTS OF THE COURT

1. ABOUT THE DEPARTMENT

2. MAIN ACTIVITIES

3. EXECUTION OF JUDGMENTS OF THE COURT

BIBLIOGRAPHY AND SOURCES

Books and Articles Internet materials

ADDITIONAL DOCUMENTS (ANNEXES)

SIGNATURE AND RATIFICATION OF THE CONVENTION

SIGNATURE AND RATIFICATION OF PROTOCOL NO. 1 TO THE CONVENTION SIGNATURE AND RATIFICATION OF PROTOCOL NO. 4 TO THE CONVENTION SIGNATURE AND RATIFICATION OF PROTOCOL NO. 7 TO THE CONVENTION SIGNATURE AND RATIFICATION OF PROTOCOL NO. 12 TO THE CONVENTION SIGNATURE AND RATIFICATION OF PROTOCOL NO. 15 TO THE CONVENTION

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SIGNATURE AND RATIFICATION OF PROTOCOL NO. 16 TO THE CONVENTION

163 164 177 188 192 193 198 212 216 217

APPLICATION FORM

NOTES FOR FILLING IN THE APPLICATION FORM

COMMON MISTAKES

ADDENDUM FOR MULTIPLE APPLICANTS

LETTERS OF THE COURT TO THE UNSUCCESSFUL APPLICANTS

OBSERVATIONS OF THE GOVERNMENT

COMMUNICATION OF THE CASE TO THE GOVERNMENT LETTER OF THE GOVERNMENT ENCLOSING THE OBSERVATIONS LETTER OF THE GOVERNMENT ON REFUSAL TO SETTLE THE MATTER

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ABOUT THE AUTHO R S

Bílková, Veronika Doc. JUDr. PhDr. Veronika Bílková, Ph.D., E.MA, is associate professor in international law at the Faculty of Law of the Charles University in Prague and the head of the Centre for Inter- national Law at the Institute of International Relations in Prague. Since 2010, she has been the member of the European Commission for Democracy Through Law (Venice Commission) of the Council of Europe on behalf of the Czech Republic. She is also member of the Managerial Board of the EU Fundamental Rights Agency, Secretary-General of the European Society of International Law (ESIL) and chair of the Working Group of Human Rights of Older Persons under the Czech Government’s Council for Human Rights. She has authored several books and more than 100 articles in Czech, English and French on international law (mainly the use of force, international humanitarian law, international criminal law, and human rights) and inter- national relations (mainly security topics and the UN). Hnátík, Petr Mgr. Petr Hnátík graduated from the Faculty of Law of theWest Bohemian University in Pilsen in 2000. Throughout his professional career, he has worked for several international organisations, including the OSCE, IOM and the Council of Europe, as well as the Ministry of Foreign Affairs of the Czech Republic. Since 2011, he has been working in the Secretariat of the CPT. Pysk, Vladimír Janoušek JUDr. Vladimír Janoušek Pysk, LL.M. graduated from the Faculty of Law of Charles University in Prague (2013). As a student, he took part in the Erasmus Exchange Programme, which he spent at the University of Leiden, where he later returned to complete a Master’s degree in EU law (2015). Since graduation until nowadays, he has been working as a lawyer and from 2018 as a head of a department at the Office of the Czech Government Agent before the European Court of Human Rights. Over the years, he drafted, participated, or directly supervised the preparation of the Government’s defence in dozens of cases, including proceedings before the Grand Chamber and, more recently, in the matter of an inter-state application. He is a member of the author’s team, which currently writes a commentary on the European Convention on Human Rights. Occasionally, he gives lectures at the Czech Judicial Academy and at the faculties of law of the universities in Prague and Brno. Šturma, Pavel Prof. JUDr. Pavel Šturma, DrSc., graduated from Charles University in Prague, Faculty of Law and Faculty of Philosophy. He is currently Professor and Head of the Department of International Law, Charles University (Prague), Faculty of Law, and coordinator of the Research Centre for Human Rights (UNCE). Senior Research Fellow of the Institute of Law, Czech Academy of Sciences. Former professor at the Pan European University, Faculty of Law (Bratislava, Slovakia). Member and chairperson of the UN International Law Commission. President of the Czech Society of International Law. Editor-in-Chief of the Czech Yearbook of Public & Private International Law. He is author or co-author of 19 books and more than 180 articles and studies in International Law. The main topics of his research include human rights, the codification of international law, international responsibility and international investment law.

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Tymofeyeva, Alla Alla Tymofeyeva is a Senior Lecturer at the Department of International Law of the Faculty of Law, Charles University. She gives lectures on Public International Law, Case-Law of the ECtHR, Protection of Human Rights in Europe and International protection of Human Rights. Dr. Tymofeyeva accomplished both on-site training and an internship at the Registry of the European Court of Human Rights. Her particular research interests include the topics of Business and Human Rights, Human Rights of Older Persons and different aspects of the European Convention on Human Rights.

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ABBREVIATIONS

CDDH Charter

Steering Committee for Human Rights

Charter of Fundamental Rights of the European Union

CIS

Commonwealth of Independent States Court of Justice of the European Union

CJEU

CoE

Council of Europe

Commissioner

Commissioner for Human Rights Contact Point for Roma and Sinti Issues Committee for the Prevention of Torture

CPRSI

CPT DEJ

Department for the Execution of Judgments of the European Court of Human Rights

ECHR/Convention

European Convention on Human Rights

ECRI ECSR

European Commission Against Racism and Intolerance

European Committee of Social Rights European Court of Human Rights

ECtHR/Court

EU

European Union

HCNM ODIHR

High Commissioner of National Minorities

Office for Democratic Institutions and Human Rights Organization for Security and Cooperation in Europe Parliamentary Assembly of the Council of Europe Protocol to the European Convention on Human Rights

OSCE PACE

Protocol

State TEU

Council of Europe Member State

Treaty on European Union

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INTRODUCTION Last year we celebrated the 70 th anniversary of the European Convention on Human Rights (Convention/ECHR). This international treaty was entered into force for the Czech Republic on 1 January 1993 and on the same day, the Czech Republic became an independent state. Consequently, the systemof the ECHRand the new state establishment began in theCzechRepublic simultaneously. This meant that the new Czech state has based its activities on the principles of a respect for human rights from the very beginning. Human rights were not only proclaimed on the national level, but strongly promoted. The educational system of the Czech Republic actively encourages the learning of human rights. These ideas are also reflected within the educational program of Charles University. The Faculty of Law at Charles University offers its students a number of courses on human rights. One of them is specifically focused on the Convention and is titled ‘Case-law of the European Court of Human Rights.’ Initially, this course emphasised the protection of human rights in the post-communist countries. However, since the situation with human rights protection in the Council of Europe’s member states has gradually changed over the years, the title of the course and of the textbook have been revised. At the end of nineties and the beginning of the millennium, the post-communist countries faced a number of specific problems. They were in worsening financial situation and it was extremely difficult for them to conduct the required judicial and political reforms. Due to the historical past of these countries, it was not easy to bring their legal systems in compliance with the Convention. Thirty years have passed since the collapse of the Soviet Union and many countries that had been a part of or under the strong influence of the USSR have become much more developed and have achieved important reforms aimed at democratisation and the rule of law. Perhaps, they were not totally successful in accomplishing all of their desired goals, but the level of respect for human rights in these states have become much greater. The use of internet and a general globalisation demonstrates that the dividing line between the old and new democracies is not so clear anymore. The case-law of the European Court of Human Rights (Court/ECtHR) corroborates that the problems involving violations of human rights are now often the same for the founding states of the Council of Europe and those who became its members only in nineties. For example, the Court found a violation of Article 3 of Protocol No. 1 to the Convention on account of an exclusion of convicted prisoners from voting in parliamentary elections with respect to Russia ( Anchugov and Gladkov v. Russia , nos. 11157/04 and 15162/05, 4 July 2013) and the United Kingdom ( Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX). Likewise, both disagreed with the position of the Court and refused to enforce the judgments at issue. The new Grand chamber judgment in the case of Big BrotherWatch and Others v. the United Kingdom of 25May 2021 raised the issue of non-compliance with the Convention of a secret surveillance system and the interception of electronic communications. In the case of Roman Zakharov v. Russia , the Court also held that there had been a violation of Article 8 of the Convention relating to shortcomings in Russian legal framework governing secret surveillance of mobile telephone communications. These examples vividly confirm the fact that the need in protection of human rights on international level still exists and that the difficulties of old and new democracies are very similar. COVID-19 became the new challenge to the world and it will definitely be reflected in the forthcoming case-law of the Court. The restrictions imposed on human rights in all of the states, parties to the Convention were of the same manner: strong interferences with the private life of persons, prohibitions on travelling, restrictions on the freedom of assembly, and the closing of many businesses, etc. There already are a few complaints pending before the Court alleging infringements on the right to the freedom of expression with regards to information concerning COVID-19 ( Avagyan v. Russia , no. 36911/20), suspensions of

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religious gatherings ( Magdić v. Croatia , no. 17578/20) and the right to the property of businesses that were shut down because of COVID-19 ( Toromag, s.r.o. and 4 other v. Slovakia , no. 41217/20). The current textbook will assist the students of the Faculty of Law and the wider public in obtaining a basic understanding of the Convention system. It is divided into sixteen Chapters. The first two chapters explain the functioning of the Court within the system in the protection of human rights in Europe. Chapter III is focused on the admissibility of complaints lodged with the Court. Chapters IV-IX provide an overview of the rights set forth in the Convention. Chapter X examines the position of legal persons in the proceedings before the Court. The activities of the Venice Commission, the Torture Prevention Committee and their relationship to the Court is described in Chapters XI and XII of the book. Chapter XIII reflects the position of the Czech Government in relation to the Court. The last chapter explores the execution of the judgments of the Court and the work of the Department for the Execution of Judgments of the European Court of Human Rights. We hope that this book will be a valuable and pleasant reading for you. Please send all the questions and proposals to tymofeya@prf.cuni.cz.

Prague 1 June 2021

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CHAPTER I. THE COURT WITHIN THE EUROP EAN HUMAN RIGHTS SYSTEM

1. INTRODUCTION The EuropeanCourt of HumanRights is a judicial body of the European regional international organisation titled ‘the Council of Europe’ (CoE). The CoE together with the European Union (EU) and the Organization for Security and Cooperation in Europe (OSCE) form the three main human rights organizations that were created for Europe after World War II. The war had a powerful effect worldwide on understanding human rights, but on the European continent the consequences were even greater. This is why leaders throughout the region founded the organizations whose goal was the protection of human rights on the continent. Although all three of these organizations were founded to bring peace and stability to Europe, they were each established with different purposes. The Council of Europe (CoE) promotes the rule of law, human rights, and democracy. The European Union (EU) was devised as an institution for promoting trade and economic stability for its members. The Organization for Security and Co-operation in Europe (OSCE) was founded to maintain peace and military security within Europe. To some extent, all three organizations deal with human rights, but the Council of Europe remains the most involved. Apart from these European organisations; the Commonwealth of Independent States (CIS), which is a regional organisation whose participating countries are some of the former Soviet Republicsmade an effort to establish its own human rights mechanism. On 26 May 1995, the Commonwealth of Independent States adopted the Convention on Human Rights and Fundamental Freedoms that includes civil and political as well as social and economic human rights. This treaty entered into force in 1998. The Commonwealth of Independent States Convention on Human Rights is modelled on the basis of the European Convention on Human Rights. Though the treaty “on paper” instituted the Human Rights Commission, in practice it does not function. Moreover, on 23 May 2001, the CoE Parliamentary Assembly (PACE) adopted Resolution 1249 (2001) on the co-existence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights. In this document, the PACE recommended to those CoE member states, which are also members of the CIS not to sign or ratify the CIS Convention on Human Rights. Regarding those CoE member states that are also members of the CIS and have already ratified the CIS Convention on Human Rights, the PACE recommends issuing a legally- binding declaration confirming that the procedures set out in the European Convention on Human Rights shall not be in any way replaced or weakened through recourse to the procedures set out in the CIS Convention on Human Rights. In view of this, this book will not cover this mechanism for human rights protection in Europe. Returning to the three organisations mentioned in the beginning, we are going to briefly describe them and their main human rights activities. Given the purpose of establishing the Council of Europe and the long-term practice of the European Court of Human Rights, we are going to focus on the activity of this international organisation and its institutions the most.

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2. HUMAN RIGHTS ORGANISATIONS IN EUROPE

2.1 Organization for Security and Cooperation in Europe The Organization for Security and Cooperation in Europe (OSCE) is the largest regional security institution in the world. Headquartered in Vienna (Austria), the OSCE was formerly known as the Conference on Security and Cooperation in Europe (CSCE); it was renamed OSCE in 1994. The CSCE was created by the Helsinki Final Act in 1975. The OSCE deals with conflict warning, prevention, crisis management, and post-conflict rehabilitation. Tasks of the OSCE include arms control, preventive diplomacy, democratization and promotion of human rights. The OSCE members now include all European nations, as well as Canada and the United States (who were both members from the original inception), and members fromCentral Asia. All members have equal status and decisions are based on consensus. The 57 member states are: Albania, Andorra, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, the Holy See, Hungary, Iceland, Ireland, Italy, Kazakhstan, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Mongolia, Montenegro, the Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Tajikistan, the Former Yugoslav Republic of Macedonia, Turkey, Turkmenistan, Ukraine, the United Kingdom, the United States and Uzbekistan. Several institutions make up the Organization for Security and Cooperation in Europe. The Permanent Council is the main decision-making body of the OSCE. It convenes weekly in Vienna to discuss issues and formulate decisions. The Chairman-in-Office is the Minister of Foreign Affairs of an OSCE member state. The Chairman is selected annually, and is responsible for executive action on behalf of the member states. The Ministerial Troika and the Secretary- General assist the Chairman. The Parliamentary Assembly consists of over 300 Members of Parliament from member states. Its purpose is to promote the OSCE agenda and the OSCE in general in national parliaments. The Secretariat provides organizational support to the OSCE. The Secretariat is under the supervision of the Secretary-General. The responsibilities of the Secretariat include: supporting field activities, maintaining contacts with NGOs, coordinating economic and environmental activities, administrative, financial, personnel services, and coordinating military events, conference and language services, public information, technology, and press. In addition, the Court of Conciliation and Arbitration settles disputes between member states that are parties to the Convention on Conciliation and Arbitration within the OSCE. The Arms Control and Confidence and Security Building Measures is headed by people personally appointed by the Chairman-in-Office and oversees military threats to member states. The OSCE has adopted a number of human rights treaties together with the establishment of special human rights bodies. The first is the Helsinki Final Act , which linked human rights concerns with securities concerns. It was signed in 1975 by 33 states, including Canada, the Soviet Union, and the United States. Since the end of the Cold War, over fifty states have joined the Act. Because the Helsinki Final Act is not an actual treaty, it is not binding on states, and failure to comply with it has political, not legal, consequences. Two of the ten Guiding Principles of the Helsinki Final Act address human rights. The first one, Principle VII, calls for respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief. The last paragraph of Principle VII confirms that member states of the OSCE should act in accordance with the United Nations Charter (1945) as well as the Universal Declaration of Human Rights (1948). It states, “In the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. They will also fulfil their obligations as set forth in the international declarations and agreements in this

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field, including inter alia the International Covenants on Human Rights, by which they may be bound.” Principle VIII emphasizes the equality of rights and self-determination of peoples. The Office for Democratic Institutions and Human Rights (ODIHR) is the principle body for promoting human rights within the OSCE. It is based in Warsaw (Poland) and was created in 1990 as the Office for Free Elections; it changed to its current name in 1992. Freedom of religion or belief, anti-terrorism, and rights listed in the so-called Moscow Mechanism are some of the priority areas for the ODIHR. The ODIHR also promotes the rule of law, prevention from torture, freedom of movement, gender equality and spreading democracy throughout South Eastern Europe. The Contact Point for Roma and Sinti Issues (CPRSI) falls under the jurisdiction of the ODIHR. It was established in 1994 in Warsaw. The Contact Point helps the Roma and Sinti (“Gypsy”) populations of Europe, which number approximately 15 million, integrate into the societies in which they live while maintaining their own identities. The CPRSI facilitates dialogue between OSCE institutions, Roma and Sinti groups, and national governments. The High Commissioner of National Minorities (HCNM) was established in 1992 following the end of the Cold War and the breakup of the Soviet Union (USSR) when there was a great need to protect ethnic minorities. The HCNM primarily addresses minority issues before they evolve into serious problems. The HCNM writes recommendations to governments and also discusses these recommendations with the Permanent Council - the main decision- making body of the OSCE - from which the Commissioner receives the most political support. The Commissioner maintains confidentiality with member states, but has discretion over what information to share with the Permanent Council. Moreover, the Representative on Freedom of the Media was established in December 1997 to “address serious problems caused by, inter alia , obstruction of media activities and unfavourable working conditions for journalists.” Unlike the High Commissioner on National Minorities, the Representative on Freedom of the Media is not a mediator. Instead, the Representative serves as an advocate promoting compliance with OSCE principles on freedom of expression and the media. The Representative gives early warnings on violations, while concentrating on issues of serious non-compliance. In the case of non-compliance, the Representative contacts the state involved, tries to discern the facts of the situation, and attempts to resolve the issue. The Representative responds as quickly as possible to the gravest violations of freedom of the media, including hazardous working conditions or an inability to report freely. 2.2 European Union The European Union (EU) is a union of democratic European countries. Its member states have set up common institutions to which they delegate some of their sovereignty so that decisions on specific matters of joint interest can be made democratically at the European level. Decisions and actions are based on EU treaties, which were signed by all member states. Heads of member states meet at least twice a year at the European Council to determine the agenda for the European Union. The European Union is based on a strong commitment to promoting and protecting human rights, democracy and the rule of law worldwide. Human rights are at the heart of EU relations with other countries and regions. EU policy includes: 1) promoting the rights of women, children, minorities and displaced persons; 2) opposing the death penalty, torture, human trafficking and discrimination; 3) defending civil, political, economic, social and cultural rights; 4) defending human rights through active partnership with partner countries, international and regional organisations, and groups and associations at all levels of society and 5) inclusion of human rights clauses in all agreements on trade or cooperation with non-EU countries. The main EU human rights treaty is the Charter of Fundamental Rights of the European Union . It was first drafted in June 1999 with the goal of including all of the rights pertaining to

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EU citizens. as well as, those rights established in the European Convention on Human Rights and the European Social Charter, two treaties of the Council of Europe. The Charter was drafted by 62 representatives from EU member states. The Charter was not initially adopted as a treaty due to disagreements among member states. Later though, the European Parliament and the Commission recommended that the Charter be incorporated as a EU Treaty. The EU Charter realized its full legal effect after entry into force as the Treaty of Lisbon on 1 December 2009. Under the Charter, the European Union must act and legislate consistently with the Charter and the EU’s courts will strike down legislation adopted by the EU’s institutions that contravenes it. The Charter applies to the institutions of the European Union and its member states. The Charter contains some 54 articles divided into seven titles. The first six titles deal with substantive rights under the headings: dignity, freedoms, equality, solidarity, citizens’ rights and justice, while the last title deals with the interpretation and application of the Charter. Much of Charter is based on the European Convention on Human Rights (ECHR), European Social Charter, the case-law of the European Court of Justice and pre-existing provisions of European Union law. The first title, dignity, guarantees the right to life and prohibits torture, slavery, the death penalty, eugenic practices and human cloning. Its provisions are mostly based on the ECHR, although Article 1 closely reflects Article 1 of German Basic Law. The second title covers liberty, personal integrity, privacy, protection of personal data, marriage, religion, thought, expression, assembly, work, education, property and asylum. The third title covers equality before the law, prohibition of all discrimination including on the basis of disability, age and sexual orientation, cultural, religious and linguistic diversity, the rights of children and the elderly. The fourth title covers social and workers’ rights including the right to fair working conditions, protection against unjustified dismissal, and access to health care, social and housing assistance. The fifth title covers the rights of EU citizens, such as the right to vote in elections to the European Parliament and to move freely within the EU. It also includes several administrative rights, such as a right to good administration, to access documents and to petition the European Parliament. The sixth title covers justice issues, such as the right to an effective remedy, a fair trial, the presumption of innocence, the principle of legality, non-retrospectivity and double jeopardy. The seventh title concerns the interpretation and application of the Charter. All bodies of the EU deal with the promotion of human rights as it is one of the EU’s top priorities . Nonetheless, there are three bodies that are the most important in regards to the protection of human rights within the EU. These are: 1. the European Ombudsman; 2. the European Union Agency for Fundamental Rights, known better under the abbrevia- tion FRA (Fundamental Rights Agency); 3. the Court of Justice of the European Union (CJEU). The European Ombudsman is an independent and impartial body that holds the EU administration to account. The Ombudsman investigates complaints about maladministration in EU institutions, bodies, offices, and agencies. Only the Court of Justice of the European Union, acting in its judicial capacity, falls outside the Ombudsman’s mandate. The Ombudsman may find maladministration if an institution fails to respect fundamental rights, legal rules or principles, or the principles of good administration. This covers administrative irregularities, unfairness, discrimination, abuse of power, failure to reply, refusal of information, and unnecessary delay, for example. Any citizen or resident of the EU, or business, association, or other body with a registered office in the EU, can lodge a complaint. The European Ombudsman can only deal with complaints concerning the EU administration and not with complaints about national, regional, or local administrations, even when the complaints concern EU matters. The Fundamental Rights Agency (FRA) is the EU body responsible for collecting and analysing data on the fundamental rights listed in the Charter. It was established in 2007 by

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Council Regulation (EC) No. 168/2007. The seat of the FRA is Vienna. The FRA’s primary methods of operation are surveys, reports, and the provisioning of expert assistance to EU bodies, member states, EU candidate countries, potential candidate countries, and the raising of awareness concerning fundamental rights. The FRA is not mandated to intervene in individual cases but rather to investigate broad issues and trends. The FRA experts pursue the objectives of collecting and analysing law and data; providing independent, evidence-based advice on rights; supporting rights-compliant policy responses; and strengthening cooperation and ties between fundamental rights actors. The FRA expertise includes the following topics: 1) access to justice; 2) victims of crime; 3) the information society; 4) Roma integration; 5) rights of the child; 6) anti-discrimination; 7) immigration and integration of migrants and 8) racism, xenophobia and intolerance. The Court of Justice of the European Union (CJEU) was established in 1952 and is located in Luxembourg. Its main role is to ensure that EU law is interpreted and applied in the same way in every EU country and that EU institutions abide by EU law. The CJEU is divided into 2 courts: 1. Court of Justice – handles requests for preliminary rulings from national courts; actions for annulment and appeals. 2. General Court – rules on actions for annulment brought by individuals, companies and, in some cases, EU governments. In practice, this means that this court deals mainly with competition law, state aid, trade and agriculture. The CJEU provides rulings on cases brought before it. The most common types of cases are interpreting the law (preliminary rulings); enforcing the law (infringement proceedings); annulling EU legal acts (actions for annulment); ensuring that the EU takes action (actions for failure to act); and sanctioning EU institutions (actions for damages). On 18 December 2014, the CJEU delivered its famous ruling (Opinion 2/13) regarding the EU’s accession to the Convention. It concluded that the agreement on the accession is not compatible with Article 6 (2) of the Treaty on European Union (TEU) or with Protocol (No 8) relating to Article 6 (2) TEU. The Court of Justice ruled that the draft agreement was incompatible with EU law for five main reasons: 1. In so far as the Convention gives the Contracting Parties the power to lay down higher standards of protection than those guaranteed by the ECHR, the ECHR should be coordinated with the EU Charter. Where the rights recognised by the EU Charter correspond to those guaranteed by the Convention, the power granted to Member States must be limited to that which is necessary to ensure that the level of protection provided for by the EU Charter. There is no provision in the draft agreement to ensure such coordination. 2. The approach adopted in the draft agreement, which is to treat the EU as a State and to give it a role identical in every respect to that of any other Contracting Party, specifically disregards the intrinsic nature of the EU. In particular, this approach does not take account of the fact that, as regards the matters covered by the transfer of powers to the EU, the Member States have accepted that their relations are governed by EU law to the exclusion of any other law. 3. Protocol No. 16 to the Convention, signed on 2 October 2013, permits the highest courts and tribunals of the Member States to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms guaranteed by the Convention or the protocols thereto. Given that, in the event of accession, the Convention would form an integral part of EU law, the mechanism established by that protocol could affect the autonomy and effectiveness of the preliminary ruling procedure provided for by the Treaty on the Functioning of the European Union (FEU Treaty), notably where rights guaranteed by the EU Charter correspond to rights secured by the Convention.

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4. Next, the FEU Treaty provides that Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for by the Treaties. Consequently, where EU law is at issue, the Court of Justice has exclusive jurisdiction in any dispute between the Member States and between those Member States and the EU. 5. Lastly, the specific characteristics of EU law as regards judicial review in matters of the Common Foreign and Security Policy (CFSP). As EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice. That situation is inherent to the way in which the Court of Justice’s powers are structured by the Treaties, and, as such, can only be explained by reference to EU law alone. Nevertheless, on the basis of accession as provided for by the draft agreement, the European Court of Human Rights would be empowered to rule on the compatibility with the Convention of certain acts, actions or omissions performed in the context of the CFSP, notably those whose legality the Court of Justice cannot, for want of jurisdiction, review in the light of fundamental rights. Such a situation would effectively entrust, as regards compliance with the rights guaranteed by the Convention, the exclusive judicial review of those acts, actions or omissions on the part of the EU to a non-EU body. Therefore, the draft agreement fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the EU in the area of the CFSP. After this ruling (Opinion 2/13) the negotiation process regarding the accession of the EU to the ECHR was frozen for a period of 5 years but has recently moved forward. By letter on 31 October 2019, the European Commission informed the CoE Secretary General that the European Union stood ready to resume the negotiations. On 15 January 2020, the CoE Ministers’ Deputies approved the continuation of the work of the Steering Committee for Human Rights (CDDH) to finalise as a matter of priority the legal instruments setting out the modalities of accession of the EU to the ECHR , including its participation in the Convention system and, in this context, to examine any related issue. The CDDH ad hoc negotiation group (“47+1”) on EU accession to the ECHR held its 9th meeting 23-25 March 2021 where it discussed in particular, proposals relating to Article 53 of the Convention, the principle of mutual trust between the EU member states as well as the situation of EU acts in the area of the Common Foreign and Security Policy that are excluded from the jurisdiction of the Court of Justice of the European Union. The last meeting took place on 29 June – 2 July 2021. The group discussed proposals related to the EU’s specific mechanism of the procedure before the Court, the operation of inter-party applications and the principle of mutual trust between EU member states. The next meeting is scheduled for 5-8 October 2021. 2.3 Council of Europe In 1949, the Treaty of London established the Council of Europe (CoE) based on principles of pluralist democracy, human rights, and the rule of law. For a state to join the COE, it must demonstrate both a respect for the rule of law and for human rights. Additionally, the COE is concerned with promoting European culture and diversity, consolidating and maintaining democratic stability, and promoting economic strength. States that join the Council of Europe retain their individual sovereignty and political identity. However, they must fulfil treaty obligations signed at the COE headquarters located at the Palais de l’Europe in Strasbourg (France). The institution’s official languages are English and French, although the Parliamentary Assembly also uses German, Italian, and Russian as working languages. The Council has 47 member states with over 900 million people and is in dialogue with over 400 non-governmental organizations (NGOs) with consultative status. The Council of Europe has granted several states Observer Status, including Canada, the Holy See (the Vatican), Japan, Mexico, and the United States.

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The Council of Europe is made up of several institutions. The Committee of Ministers is the main decision-making body of the COE. It is composed of the Foreign Affairs Ministers of all member states. The Parliamentary Assembly is a deliberative body, composed of 313 members and 313 substitutes who are appointed by national assemblies. The Congress of Local and Regional Authorities of Europe is a consultative body with local and regional representatives. It is composed of a Chamber of Local Authorities and a Chamber of Regions. The Secretary General of the Council of Europe directs and coordinates the organization’s activities. The Secretary serves a five-year term. The member states of the Council of Europe, in the course of their human rights protection performance adopted more than two hundred treaties in the various fields of life. For example, the Convention on preventing and combating violence against women and domestic violence, the Convention on Offences relating to Cultural Property, the Convention against Trafficking in Human Organs, Convention on the Manipulation of Sports Competitions, the Convention on the Prevention of Terrorism and many others. Some of the CoE conventions such as the ECHR envisage a controlling mechanism such the ECtHR. However, a majority are implemented on the domestic level without the creation of a special controlling body within the CoE. Given that the Council of Europe is the European organisation primarily established for the purpose of human rights protection, we are going to describe its treaties and bodies more precisely in this book. 3. COUNCIL OF EUROPE TREATIES AND BODIES The common framework of the organisation activities in the sphere of human rights may be summarised as follows: 1) the Convention for the Protection of Human Rights and Fundamental Freedoms – the European Court of Human Rights. 2) the European Social Charter – the European Committee of Social Rights; 3) the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment – the Committee for the Prevention of Torture 4) the Commissioner for Human Rights. 5) the European Commission for Democracy through Law – better known as the Venice Commission. In the following segments of the book, a brief overview of each of these mechanisms will be provided. Taking into account a significant contribution to the area of human rights in Europe by the European Court of Human Rights (ECtHR), a separate part of the paper will deal with a description of this body and its procedures. At this time, only a basic description of the ECHR will follow. 3.1 Convention for the Protection of Human Rights and Fundamental freedoms The main human rights treaty of the Council of Europe is the Convention for the Protection of Human Rights and Fundamental Freedoms (1950). This convention, known simply as the European Convention on Human Rights (Convention/ECHR), was the CoE’s first legal treaty to protect human rights, as well as the first international human rights treaty with enforceable mechanisms. It was inspired by the United Nations’ Universal Declaration of Human Rights (1948), which was signed in Rome on November 4, 1950, and entered into force on September 3, 1953. Only member states of the CoE can become a party to the Convention. The Convention may be seen from a broader and wider perspective. In a very strict meaning the Convention is a document, which was adopted in 1950 and contains material rights in its Articles from Article 2 to Article 14. We say that there is the Convention and additional

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protocols to it. However, if we have a look, for example at Article 5 of the First additional protocol to the Convention, we will find a provision in accordance with which a number of the provisions contained in this protocol “shall be regarded as additional Articles to the Convention”. It means that all the material provisions in additional protocols to the Convention should be seen as a part of the Convention itself. Consequently, the Convention includes not only the text adopted in 1950, but also a number of other Articles, which were added by means of additional protocols. States that have ratified the Convention and protocols to it, also known as “States Parties”, have undertaken to secure and guarantee to everyone within their jurisdiction, not only their nationals, the fundamental civil and political rights defined in the Convention. The rights and freedoms secured by the Convention include the right to life, the right to a fair hearing, the right to respect for private and family life, freedom of expression, freedom of thought, conscience and religion and the protection of property. The Convention prohibits, in particular, torture and inhuman or degrading treatment or punishment, forced labour, arbitrary and unlawful detention, and discrimination in the enjoyment of the rights and freedoms secured by the Convention. The Convention has also grown, and protocols have added new rights: for example, in July 2003, with Protocol No. 13 concerning the abolition of the death penalty in all circumstances, or in April 2005, with Protocol No. 12 on non-discrimination. The Convention evolves especially by means of the interpretation of its provisions by the European Court of Human Rights (Court/ECtHR). Through its case-law the Court has made the Convention a living instrument; it has thus extended the rights afforded and has applied them to situations that were not foreseeable when the Convention was first adopted. The Convention is applicable at national level. It has been incorporated into the legislation of the States Parties, which have undertaken to protect the rights defined in the Convention. Therefore, domestic courts must apply the Convention. Otherwise, the European Court of Human Rights would find against the State in the event of complaints by individuals regarding the failure to protect their rights. Primarily, the working mechanisms under the Convention were the European Court and the European Commission on Human Rights. Although the Commission became obsolete in 1998 with the restructuring of the Court of Human Rights, it held an important role in assisting the European Court of Human Rights from 1953 to 1998. Commission members were elected by the Committee of Ministers and would hold office for six years (during which time they were to act independently, without allegiance to any state). Their role was to consider whether a petition was admissible to the Court. If so, the Commission would examine the petition to determine the facts of the case and look for parties that could help settle the case in a friendly manner. If a friendly settlement could not take place, the Commission would issue a report on the established facts with an opinion on whether or not a violation had occurred. A Committee of three members determined the admissibility of a petition. For difficult decisions, however, a Chamber consisting of seven members handled it. To date, 16 additional protocols to the Convention have been adopted, but only 14 of them have entered into force already. Protocol No. 14, whose aim is to guarantee the long-term efficiency of the Court by optimising the filtering and processing of applications, provides in particular for new judicial formations to deal with the simplest cases, for a new admissibility criterion (that of “significant disadvantage”) and for judges’ terms of office to be extended to nine years without the possibility of re-election. This Protocol entered into force on 1 June 2010. To date, 16 additional protocols to the Convention have been adopted and all of them have entered into force. Protocol No. 14, whose aim is to guarantee the long-term efficiency of the Court by optimising the filtering and processing of applications, provides in particular for new judicial formations to deal with the simplest cases, for a new admissibility criterion (that of “significant disadvantage”) and for judges’ terms of office to be extended to nine years without the possibility of re-election. This Protocol entered into force on 1 June 2010.

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