Académique Documents
Professionnel Documents
Culture Documents
Stefan Kirchner
The texts included in this eBook have been published previously as individual
texts on scribd.com and on rladi.com in 2014 and 2015.
If losing the right to vote is seen as part of the consequences which are to be
suered after one has committed a crime, the question has to be asked how
the function of punishment is viewed by lawmakers. Is the punishment merely
a way of society to take organized and legally phrased revenge, or doesnt
such a penalty serve a function which goes beyond societys reaction to a
crime? If criminal law is to be more than organized revenge, punishments
should also aim at (re)integrating the person in question into society. This
includes the participation of every citizen in the democratic process. Taking
away the right to vote means taking away a way to engage with the rest of
society. This measure has the symbolic and practical eect of excluding the
prisoners from the rest of society not only in a physical sense. In the long run,
it seems, society has more to lose by taking away this fundamental
democratic right than by allowing prisoners to vote. As the example of the
UK is showing, the consequences can go farer than one might have
imagined. By moving away from law as a tool for long-term justice towards
law as a tool for revenge, rights are threatened, too.
There is not unlimited freedom, however, even for press coverage of matters
of serious public concern, with reference being made to the duties and
responsibilities inherent in the exercise of the freedom of expression,
particularly where the rights of others are involved, requiring journalists to act
in good faith in order to provide accurate and reliable information in
accordance with the ethics of journalism. In general, freedom of expression
is not only important in itself, but also plays a central role in the protection of
the other rights under the Convention. Thus the Court consistently gives a
higher level of protection to publications and speech which contribute
towards social and political debate, criticism and information-in the broadest
sense. Artistic and commercial expression, in contrast, receive a lower level
of protection. (Ovey and White, The European Convention on Human Rights,
4th ed., p. 320, footnotes omitted) Restrictions must be proportionate to the
aim pursued by the public authorities. (Handyside v. United Kingdom,
Judgment of 7 December 1976, para. 48; on the margin of appreciation
enjoyed by the states in this regard see Urska Prepeluh, Die Entwicklung der
Margin of Appreciation-Doktrin im Hinblick auf die Pressefreiheit, in: 61
Zeitschrift fr auslndisches entliches Recht und Vlkerrecht 2001, pp.
771-832).
Not only has only the EUs current approach to becoming a party to the
ECHR been halted, in practice there is already a parallel interpretation of
human rights standards in EU law and under the ECHR. If the EU were not to
become a party to the ECHR, the CJEU will have to ensure that the EU
complies with human rights standards, in particular the EU Charter. As the
EU is becoming an ever more important actor in the lives of Europeans, the
standard of human rights must not fall below the standard imposed by the
ECHR.
The relationship between Europes two top courts does not have to become
problematic but it is necessary to keep talking. Close communication
between those who work on the Charter and the Convention respectively can
help increase awareness of human rights issues and increase respect for
human rights on all levels of governance. What is needed is real protection
not just more paper.
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Often refugees try to reach Europe with little or wrong information about
living and working conditions in the north. Rather than trying to close all
borders, Europe should be more open to immigration (which also makes
sense in the long run, given that Europes is an aging society and that the
overwhelming majority of refugees do not want handouts but a chance to
work and to build a better future for themselves and their families). This will
also require refugees to be aware of their rights including their procedural
rights under the ECHR.
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The Material Scope of the Right to Family Life under Article 8 ECHR after
Senchishak v. Finland: Too Narrow for Comfort
Even though the applicant was living with her daughter, a Finnish citizen, in
Finland, the Court found that this was not enough to consider the right to
family life under Article 8 ECHR to be applicable ratione materiae because in
the case of adult children and their parents, the Court requires more than
merely living together and having normal family ties, in particular if children
and parents have not lived together for some time. This reasoning Judgment
is the logical continuation of Kwakye-Nti and Dufie v. the Netherlands and
Emonet and Others v. Switzerland to which the Court makes explicit
reference in Senchishak v. Finland if by logical one means the continued
weakening of fundamental human rights protections.
This judgment essentially means that moving together with your parents later
in their life, when they need support, does not provide parents not children
with protection under Article 8 ECHR. Not only is this an interpretation of the
word family which is very much at odds with the ordinary interpretation
which can be found across Europe, it also includes an element of age
discrimination and disadvantages families who live together in multigenerational environments.
The understanding of the term family which has been applied by the Court
in Senchishak v. Finland should not be a surprise, given the earlier case law
but it does not necessarily take into account the many dierent family
constellations and disregards the reality of how life is today for many
Europeans. It is to be hoped that the judgment, which includes a wellreasoned dissenting opinion by the judges from Albania and Bulgaria, is not
the end of this development but that the Court will show some more flexibility
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in the future. Otherwise, both traditional and modern forms of family life
might fall outside the material scope of the right to family life under Article 8
ECHR.
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If Finland were to require a permit also for silent forms of begging, the
standard imposed by paragraph 2 of Article 10 of the European Convention
on Human Rights could easily stand in the way of the planned legislation.
It appears questionable how eective this can be. While there appears to be
a similar model in place in Norway, (10) there are no guarantees that the
same approach will also work in Finland. After all, merely having a permit to
beg does not mean that the person who is begging will not be more of a
threat to public order than somebody who is politely asking for help without
having a permit to do so. Personally, I doubt that there is one solution which
fits all situations in which people who live in one of the worlds richest
countries with an excellent social system feel forced to beg in order to make
a living.
Although it would mean more work for local police forces and higher costs,
the by far better solution would be to deal with possible disturbances on a
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case by case basis. This, however, means putting more police ocers on the
street which would increase the general sense of security. Far from calling
for a police state, this approach would enable public authorities to deal with
real threats rather than merely managing potential nuisances.
Notes:
(5) Ibid.
(8) Ibid.
(9) Ibid.
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In proceedings before the European Court of Human Rights, only one of the
original parties to the legal dispute on the national level is a party to the case
in Strasbourg, although there can be a role for the other side, too.(1) In many
legal systems, minors are represented in court by their parents. This is also
the case when it comes to proceedings before the European Court of Human
Rights. This becomes problematic when it comes to conflicts between
parents and children. This is why the Convention organs also allow minors to
bring applications if they are not represented by their parents.(2)
Article 14 ECHR does not allow for discrimination based on, among other
things, other status. This can include age but age discrimination is fairly
common and in many cases justified. The Court, however, interprets the
Convention, the Council of Europe is of course not a party to the Convention.
While imposing not very high requirements terms of legal abilities, the
European Human Rights system accordingly seems somewhat biased
against younger children who are not factually able to ask the Court for help.
It might be useful to consider the creation of a special representative for
children in proceedings at the European Court of Human Rights, in order to
ensure their access to court in cases in which their interests are opposed to
the interests of their parents. Children have rights and in order for these
human rights to be eective and eectiveness of human rights is a
persistently recurring theme in the jurisprudence of the Court they have to
have meaningful access to the European Court of Human Rights also in
cases in which their rights might be threatened by their own parents. While
the number of such cases might be small, the European human rights system
will be incomplete without eective guarantees for children,
(1) See Gruodyte et al, Legal Aid for aected non-parties in proceedings
before the European Court of Human Rights, forthcoming.
(2) Rainey et al., The European Convention on Human Rights, 6th ed., p. 32.
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In the case of the parts of the territory of Ukraine which are currently
controlled by Russian and / or pro-Russian irregular armed forces, there are
no eective legal remedies. Therefore, assuming the absence of applicable
eective remedies elsewhere under Ukrainian law, victims of human rights
violations, as well as the relatives of the passengers of flight MH17, can apply
directly to the European Court of Human Rights.
What is new about the situation in the peninsula of Crimea (the term Crimea
will be used here to refer to the geographical area of Crimean peninsula,
including both the Autonomous Republic of Crimea as well as the Special
Status City of Sevastopol) is that one state which is a party to the ECHR not
only occupies an other partys territory or controls it through proxies, as it
continues to be the case in eastern parts of Ukraine, as well as parts of
Cyprus, Moldova and Georgia. (In this context, Ireland could be named as
well. The situation with regard to Ireland, though, is significantly dierent due
to the positive diplomatic relations between the Republic of Ireland and the
United Kingdom. Yet it is somewhat similar to the other examples because
the 1998 Good Friday Agreement explicitly allowed for the possibility for a
reunified Ireland, which in turn means that the Republic of Ireland has not
given up all claims to the territory held by Britain.) This raises the question
whether victims of human rights violations who are resident in Crimea would
have to exhaust domestic remedies which are made available by the Russian
Federation prior to bringing a case to Strasbourg. Requiring applicants to
exhaust the available remedies oered by Russia would reflect the
applicability of the ECHR all cases in which victims of human rights violations
are under the jurisprudence of a state. Likewise, in cross-border cases, for
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example those in which a permit issued for the operation of a factory which
causes air pollution on one side of the border also aects nearby residents
across the border, recourse has to be sought in the state which has issued
the permit in question. The case of Crimea and Sevastopol, however, is
dierent. The ECHR is part of Public International Law as a whole. The
prohibition of the use of force, in particular for the acquisition of territory, is a
norm of jus cogens and the prohibition of the recognition of such conquests
is at the very least customary international law, if not jus cogens as well. The
Court must not accept a claim to title to territory which is incompatible with
international law. Were the European Court of Human Rights to require
applicants from Crimea to exhaust Russian domestic remedies it would not
mean that the Strasbourg organs or any of the other states which have
ratified the ECHR have explicitly or implicitly recognized Russian sovereignty
over Crimea but only jurisdiction within the meaning of Article 1 ECHR. But
requiring the applicant to exhaust remedies oered by Russia to the residents
of Crimea would also mean requiring the applicant to accept, if only for the
purpose of securing admissibility of their future application to the European
Court of Human Rights, the legitimacy of Russian rule over Crimea which is
not compatible with international law. Therefore residents of the Crimean
peninsula should not be required by the Court to exhaust local remedies
oered by the Russian Federation before they can bring a case to the
European Court of Human Rights.
Notes:
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The shooting down of the Malaysia Airlines commercial airliner MH17 over
embattled eastern Ukraine in July 2014 has raised the question in how far
Ukraine can be held responsible for human rights violations committed by
non-state or foreign actors in parts of Ukraine which are no longer under full
government control. This question is distinct from the question of Russian
responsibility for actions by regular Russian forces and irregular pro-Russian
forces operating on the territory of Ukraine. This kind of legal problem could
only become relevant after international law outlawed the acquisition of title
to territory by armed conquest. Even more recently, the European Convention
on Human Rights(1) (ECHR) outlawed a range of human rights violations and
provided victims of human rights violations with the possibility to sue states
in an international forum.(2) In the case of the murder of the passengers and
crew of flight MH17 the mother of one victim has filed a case against Ukraine
with the European Court of Human Right for failing to prevent the shooting
down of the airliner.(3) From a practical perspective, suing Ukraine is far
easier than suing Russia because at this time it remains unclear who actually
shot down the aircraft. Article 1 ECHR requires the jurisdiction of the state
which is accused of having violated human rights. It might well be
significantly easier to prove that Ukraine still has jurisdiction over the
disputed territory than to prove that Russia has acquired jurisdiction.
It has long been debated whether military action would be sucient to trigger
the jurisdiction under Article 1 ECHR of a state intervening abroad. Article 1
ECHR requires eective overall control.(7) It does not matter if control is
exercised through armed forces or public administration.(8) Occupation by
military force can go beyond the threshold of Article 1 ECHR and lead to legal
responsibility.(9) The factual control of parts of Ukraine by pro-Russian and
Russian armed forces in itself can amount to an eective overall control.
Whether a person falls under Russias jurisdiction has to be decided on a
case by case basis.(10) The exercise of governmental powers is an essential
aspect of statehood and of title to territory but both aspects independent of
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the issue of jurisdiction under Article 1 ECHR. Therefore Russia can be held
responsible under the Convention without having title to the territory in
question.
But even if the situation in Eastern Ukraine were to trigger the legal
responsibility of the Russian Federation, it would not release Ukraine from all
legal responsibility under the Convention. Instead, even an occupied nation
still retains some residual responsibility under the ECHR. The state, being
represented by the elected head of state, has still some capability to act.
Even if the entire government were in exile or most members of government
were killed, those who validly represent the state, and lacking
representatives, all citizens, remain responsible for the protection of human
rights. Occupation by a foreign power does not free the occupied state from
all human rights obligations. The occupied state must use other ways to raise
the issue in international fora.(11) Against this backdrop, the decision by the
Ukrainian government to stop public services in parts of Ukraine under
Russian or pro-Russian control has to be seen from the perspective of
human rights as well. While there might be many practical considerations for
deciding to end public services and governance activities due to practical
impossibility, human rights obligations under the ECHR are not dependent on
the states possibilities. As long as there is jurisdiction, the state has the duty
to respect and protect human rights under the European Convention on
Human Rights. This protection has to be as eective as possible. Strictly
speaking, there is also a kind of responsibility which not follow from Article 1
ECHR but from good faith principles, which are part of international law as
general principles as envisaged by Article 38 of the Statute of the
International Court of Justice.(12) Without any eective local government
there is no jurisdiction within the meaning of Article 1 ECHR. Yet, those
persons who were under the jurisdiction of one state which is losing or
already has lost jurisdiction have a valid expectation to be protected. While
this provides a bias towards assuming the responsibility of the occupying
state,(13) this does not free the Court from the need to positively establish
the new jurisdiction of the occupying power.
The case of MH17 is only the tip of the iceberg. There are numerous other
human rights violations happening in parts of Ukraine which are no longer
under government control. While the government of Ukraine may no longer
have full control over its countrys entire territory, it retains a residual
responsibility for what happens in Ukraine, even in parts of Ukraine which it
no longer controls. The authorities of Ukraine therefore are not in a position
to ignore human rights violations by third parties which are committed in the
territory in question. This means that the Ukrainian government will have to
raise human rights violations in the occupied areas whenever possible and,
once control over the territories will have been restored, will have to ensure
that human rights violations can be dealt with by the authorities, including
courts, in an eective manner.
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Notes:
( 1 ) A v a i l a b l e o n l i n e a t h t t p : / / w w w. e c h r. c o e . i n t / D o c u m e n t s /
Convention_ENG.pdf.
(6) Ibid.
(7) Ibid., p. 8.
(8) Ibid.
(9) Ibid., p. 9.
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But that is not the end of the story. What matters really is not so much what
happened in this case but what could have happened next: This police power
can easily be abused by designating areas from which eective reporting is
simply not possible. Also, protests etc. often are not static in nature but fluid
and volatile events. What might have been a perfectly secure place from
which to report in one moment might become an extremely dangerous
location in the next of so far from the action that no meaningful reporting is
possible simply because there is no access to the necessary information
anymore. It is in this context that the Courts decision can have challenging
consequences for police forces. Once the decision has been made to
designate a specific area for reporters, the police has an obligation to ensure
that this area remains secure or that reporters are able to leave the area once
when it becomes less than secure. This already follows from the positive
dimension of the states duty to protect human life under Article 2 ECHR. On
the other hand does the obligation to protect journalistic freedoms also
require public authorities to refrain from making journalistic work impossible.
If meaningful journalistic work is no longer possible from the designated area,
the state would be in violation of its obligations if it would not designate a
new journalism area from which reporting is possible. In either case, this will
increase the workload of police ocers, who would not be available to fulfill
their primary tasks at the same time. It is not permitted that the state bans
reporting a specific situation altogether as this would not be necessary in a
democratic society.
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