Council Of Europe

Created
June 10, 2022 09:14 AM
Study time
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European Convention on Human Rights (ECHR)

📍Strasbourg
📅 1949 (active 1953)
 
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First retinal agreement on human rights (1953)
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Allows regional interpretation of HR (relativism)… provides greater legitimacy which means more likely to comply?
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Allows region to go beyond what could be agreed globally (i.e. right to free elections)
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Includes all members of Council of Europe (note –nothing to do with the EU!)
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Regional IGO – aims: uphold human rights, democracy and rule of law
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Founded 1949
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46 member states (Russia was expelled in March 2022)
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Mix of 1st generation (right to life, freedom from torture, freedom of expression) and 2nd generation (right to education) rights based on UDHR but also going beyond (right to participate in free elections; abolition of death penalty).
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Enforced by the European Court of Human Rights(ECtHR)
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Based in Strasburg
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Hears cases brought by individuals, groups or states (key concept – rare opportunity for individuals to demand justice [what they’re entitled to] from their states in violation of sovereignty)
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Margin of Appreciation (MoA)
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Permits states a degree of latitude (‘wiggle room’) to meet the requirements of the ECHR according to their different legal and cultural traditions
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Allows states to interpret the ECHR in a legally/culturally relativistic manner – it should not allow states to violate the ultimate purpose and objective of the ECHR
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Attempt to balance universalism of human rights with respect for sovereignty and legal/cultural relativism
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Case study 1– Hirst vs. United Kingdom (2005)
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John Hirst – UK prisoner serving a sentence for manslaughter was prevented from voting by UK law which prohibits prisoners voting during their incarceration
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Hirst took his case to the ECtHR for violating his right to participate in democratic elections (UCHR Protocol 1, Article 3)
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ECtHR find that the UK’s blanket ban on voting for prisoners was in violation of the ECHR as it was indiscriminate and disproportionate
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Decision was strongly criticised by the UK government (PM David Cameron said the thought of prisoners voting made him feel ‘physically ill’, and also said that the ECtHR was ‘distorting’ and ‘discrediting’ the concept of human rights by striking down reasonable decisions reached by states)
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UK government failed to implement the decision for 12 years before reaching a compromise with the Council of Europe in 2017 in which prisoners who are on Temporary Licence (‘day release’) on election day are allowed to vote (estimated to be about 100 at a time out of a total prison population of 80,000).
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Case study 2 – Abu Qatada vs. United Kingdom (2012)
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Abu Qatada was born in Jordan and came to the UK as an asylum seeker in 1993
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A so-called ‘hate preacher’, Qatada preached that it was justified to kill Muslims who renounce their faith, praised the 9/11 attacks, and said that American citizens ‘should be attacked wherever they were’ and that there was no difference between ‘English, Jews and Americans’.
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He also has a number of links to terror plots and was wanted in connection with terrorism charges in Belgium, the US, Spain, France, Germany, Italy and Algeria
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The UK wished to deport him to Jordan to face terror charges, however, the ECtHR ruled in 2012 that this would violate his right to a fair trial (ECHR article 6) as evidence to be used against him had been obtained by torturing his co-defendants.
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The UK was only able to deport him in 2013 afteragreeing with Jordan that evidence obtained through torture would not be used against him (he was found not-guilty due to ‘insufficient evidence’).