The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context

The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context

The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context Edited By

Dia Anagnostou Evangelia Psychogiopoulou

LEIDEN • BOSTON 2010

On the cover: “City Flow” by Holly Van Hart, Oil painting on canvas, 20” x 24”, www.hollyvanhart.com This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data The European Court of Human Rights and the rights of marginalised individuals and minorities in national context / Edited By Dia Anagnostou, Evangelia Psychogiopoulou. p. cm. Includes bibliographical references and index. ISBN 978-90-04-17326-2 (hardback : alk. paper) 1. European Court of Human Rights 2. Human rights--Europe. 3. Civil rights--Europe. 4. Minorities--Legal status, laws, etc.--Europe. I. Anagnostou, Dia. II. Psychogiopoulou, Evangelia. KJC5138.E97 2009 342.408’73--dc22 2009033022

ISBN 978 9004 17326 2 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Brill has made all reasonable efforts to trace all right holders to any copyrighted material used in this work. In cases where these efforts have not been successful the publisher welcomes communications from copyright holders, so that the appropriate acknowledgements can be made in future editions, and to settle other permission matters. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

Contents Acknowledgements ........................................................................................... vii Table of Cases ..................................................................................................... ix List of Contributors ............................................................................................ xxiii Chapter One The Strasbourg Court, Democracy and the Protection of Marginalised Individuals and Minorities ............................... Dia Anagnostou Chapter Two Protecting Individuals from Vulnerable Groups and Minorities in the ECtHR: Litigation and Jurisprudence in Austria ............................................................................................................ Kerstin Buchinger, Barbara Liegl and Astrid Steinkellner Chapter Three Protecting Individuals from Minorities and Other Vulnerable Groups in the European Court of Human Rights, Litigation and Jurisprudence: The Case of Bulgaria .......................................................................................................... Yonko Grozev, Daniel Smilov and Rashko Dorosiev Chapter Four Protecting Individuals from Minorities and Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in France .......................................................... Emmanuelle Bribosia, Isabelle Rorive and Amaya Úbeda de Torres Chapter Five The Protection of Marginalised Individuals and Minorities in Germany: The Role of National and European Judicial Mechanisms ......................................................................................... Christoph Gusy and Sebastian Müller

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Chapter Six The European Court of Human Rights in Greece: Litigation, Rights Protection and Vulnerable Groups ..................................................... 115 Evangelia Psychogiopoulou

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contents

Chapter Seven Protecting Individuals Belonging to Minority and Other Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in the Italian System ...................................................................................................... 137 Serena Sileoni Chapter Eight Protecting Marginalised Individuals and Minorities in the ECtHR: Litigation and Jurisprudence in Turkey .............................................................................................................. 159 Dilek Kurban Chapter Nine The European Court of Human Rights in the UK: Litigation, Rights Protection and Minorities .......................................... 183 Susan Millns, Christopher Rootes, Clare Saunders and Gabriel Swain Chapter Ten Conclusions ............................................................................... 209 Yorgos Kaminis References............................................................................................................ 221 Index .................................................................................................................... 241

Acknowledgements This volume is the product of collaborative research undertaken in the context of the JURISTRAS project funded by the 6th Framework Programme of the European Commission (contract no. FP6-028398). The aim of this project was to explore the effects of the European Court of Human Rights case law on national laws, policies and judicial interpretations regarding minorities and immigrants. This volume contains a systematic overview and analysis of the first cycle of the project’s research. We would like to thank Angela Liberatore, the European Commission’s project officer, whose enthusiastic support for the subject of this research was from the start and throughout the project extremely encouraging and motivating. We would also like to thank the anonymous reviewer who saw in the original and much different manuscript a promising study of a little explored subject. The themes and structure of the original draft reports and subsequently the country chapters of this volume were developed and discussed by the authors in the course of four meetings that were held in Siena, Vienna, Berlin and Istanbul from the spring of 2007 until the autumn of 2008. We wish to thank the contributors to this volume for their willingness, even with occasional signs of exasperation, to respond to numerous remarks and suggestions of the editors and engage in repeated rounds of revisions. Collaborative research presents many challenges to the individuals involved. But as many others who have edited volumes before us would no doubt agree, it is one of the most gratifying aspects of academic work, not only because of the knowledge we gain from others, but also because of the pleasure in communicating it. Dia Anagnostou and Evangelia Psychogiopoulou Athens, May 2009

Table of Cases European Commission on Human Rights EComHR, Church of X v. UK (no. 3798/68), 17 December 1968 EComHR, Arrowsmith v. UK (no. 7050/75), 16 May 1977 EComHR, Gay News Ltd v. UK (no. 8710/79), 7 May 1982 EComHR, Ahmad v UK, 4 EHRR 126 (1982) EComHR, El-Makhour v. Germany (no. 14312/88), 10 July 1989 EComHR, Campopiano and other v. France (no. 18336/91), 5 May 1993 EComHR, H. v. UK, 16 EHRR CD 44 (1993) EComHR, McLaughlin v. UK (no. 18759/91), 9 May 1994 EComHR, G. and M.L. and GIA v. France (no. 17734/91), 29 June 1994 EComHR, Church of Scientology of Paris v. France (no. 19509/92), 9 January 1995 EComHR, Rai, Allmond and ‘Negotiate Now’ v. UK (no. 25522/94), 6 April 1995 EComHR, Ahmet Sadik v. Greece (no. 18877/91), 15 November 1996 EComHR, Universelles Leben e.v. v. Germany (no. 29745/96), 27 November 1996 EComHR, Scientology Kirche Deutschland e.v. v. Germany (no. 34614/ 97), 7 April 1997 EComHR, Zeibek v. Greece (no. 34372/97), 21 May 1997 EComHR, M.M. v. Bulgaria (no. 27496/95), 9 July 1997 EComHR, Agko v. Greece (no. 31117/96), 20 October 1997 EComHR, Imam and Others v. Greece (no. 29764/96), 20 October 1997 EComHR, Keller v. Germany (no. 36283/97), 4 March 1998 EComHR, Christian Association Jehovah’s Witnesses v. Bulgaria (no. 286 26/95; 3/7/1997), 9 March 1998 EComHR, A.B. and G.I.A. v. France (no. 28660/95), 20 May 1998 EComHR, Cha’are Shalom Ve Tsedek v. France (no. 27417/98), 20 October 1998 EComHR, Beshara and Others v. Germany (no. 43696/98), 30 October 1998

x

table of cases

European Court of Human Rights ECtHR, Tyrer v. UK (no. 5856/72), 25 April 1978 ECtHR, Luedicke and Others v. Germany (no. 6210/73), 28 November 1978 ECtHR, Sunday Times v. UK (no. 6538/74), 26 April 1979 ECtHR, Young, James and Webster v. UK (no. 7601/76 and 7806/77), 13 August 1981 ECtHR, Dudgeon v. UK (no. 7525/76), 22 October 1981 ECtHR, Childs v. UK (no. 9813/82), 1 March 1983 ECtHR, Öztürk v. Germany (no. 8544/79), 21 February 1984 ECtHR, Goddi v. Italy (no. 8966/80), 9 April 1984 ECtHR, Bozano v. France (no. 9990/82), 15 May 1984 ECtHR, X and Y v. The Netherlands (no. 8978/80), 26 March 1985 ECtHR, Abdulaziz, Cabales and Balkandali v. UK (nos. 9214/80; 9473/81; 9474/81), 28 May 1985 ECtHR, Glasenapp v. Germany (no. 9228/80), 28 August 1986 ECtHR, Kosiek v. Germany (no. 9704/82), 28 August 1986 ECtHR, Rees v. UK (no. 9532/81), 17 October 1986 ECtHR, Capuano v. Italy (no. 9381/81), 25 June 1987 ECtHR, Chappell v. UK (no. 10461/83), 30 March 1989 ECtHR, Kamasinski v. Austria (no. 9783/82), 19 December 1989 ECtHR, Cossey v. UK (no. 10843/84), 27 September 1990 ECtHR, Observer/Guardian v. UK (no. 13585/88), 26 November 1991 ECtHR, Sunday Times 2 v. UK (no. 13166/87), 26 November 1991 ECtHR, Beldjoudi v. France (no. 12083/86), 26 March 1992 ECtHR, Zukrigl v. Austria (no. 17279/90), 10 October 1992 ECtHR, Bulut v. Austria (no. 20807/92), 13 October 1992 ECtHR, Kokkinakis v. Greece, (no. 14307/88), 25 May 1993 ECtHR, Hoffmann v. Austria (no. 12875/87), 23 June 1993 ECtHR, H.F. v. Austria (no. 22646/93), 17 September 1993 ECtHR, Gümüskaya v. Austria (no. 22782/93), 18 October 1993 ECtHR, Informationsverein Lentia and Others v. Austria (nos. 13914/88; 15041/89; 15717/89; 15779/89; 17207/90), 24 November 1993 ECtHR, East African Asians v. UK (nos. 4403/70; 4419/70; 4422/70; 4423/70; 4434/70; 4443/70; 4476/70; 4478/70; 4486/70; 4501/70; 4526/70; 4530/70), 21 March 1994 ECtHR, Altuntas v. Austria (no. 25918/94), 13 December 1994 ECtHR, Öztürk v. Austria (no. 26400/95), 6 February 1995 ECtHR, Onyegbule v. Austria (no. 26609/95), 2 March 1995 ECtHR, Adegbie v. Austria (no. 26998/95), 7 April 1995 ECtHR, Piermont v. France (no. 15773/89), 27 April 1995

table of cases

xi

ECtHR, B.S. v. Austria (no. 27647/95), 19 June 1995 ECtHR, Nasri v. France (no. 19465/92), 13 July 1995 ECtHR, Vogt v. Germany (no. 17851/91), 26 September 1995 ECtHR, John Murray v. UK (no. 18731/91), 8 February 1996 ECtHR, Bulut v. Austria (no. 17358/90), 22 February 1996 ECtHR, Remli v. France (no. 16839/90), 23 April 1996 ECtHR, Fehrati v. Austria (no. 31411/96), 7 May 1996 ECtHR, Amuur v. France (no. 19776/92), 25 June 1996 ECtHR, Karakurt v. Austria (no. 32441/96), 30 July 1996 ECtHR, Akdivar and Others v. Turkey (no. 99/1995/605/693), 30 August 1996 ECtHR, Gaygusuz v. Austria (no. 17371/90), 16 September 1996 ECtHR, Buckley v. UK (no. 20348/92), 25 September 1996 ECtHR, Manoussakis and Others v. Greece (no. 18748/91), 26 September 1996 ECtHR, Chahal v. United Kingdom, (no. 22424/93), 15 November 1996 ECtHR, Ahmed v. Austria (no. 25964/94), 17 December 1996 ECtHR, Aksoy v. Turkey (no. 21987/93), 18 December 1996 ECtHR, Efstratiou v. Greece (no. 24095/94), 18 December 1996 ECtHR, Valsamis v. Greece (no. 21787/93), 18 December 1996 ECtHR, Schober v. Austria (no. 34891/97), 12 February 1997 ECtHR, Laskey, Jaggard and Brown v. UK (nos. 21627/93; 21826/93; 21974/93), 19 February 1997 ECtHR, Hornsby v. Greece (no. 18357/91), 19 March 1997 ECtHR, X, Y, and Z v. UK (no. 21830/93), 22 April 1997 ECtHR, Georgiadis v. Greece (no. 21522/93), 29 May 1997 ECtHR, Tsirlis and Kouloumpas v. Greece (nos. 19233/91; 19234/91), 29 May 1997 ECtHR, Pentidis and Others v. Greece (no. 23238/94), 9 June 1997 ECtHR, Kalaç v. Turkey (no. 20704/92), 1 July 1997 ECtHR, Bamba v. France (no. 30930/96), 8 September 1997 ECtHR, A.B. v. France (no. 34795/97), 18 September 1997 ECtHR, Szücs v. Austria (no. 20602/92), 24 November 1997 ECtHR, Zana v. Turkey (no. 69/1996/688/880), 25 November 1997 ECtHR, Sakik and Others v. Turkey (no. 87/1996/706/898-903), 26 November 1997 ECtHR, Menteş and Others v. Turkey (no. 23186/94), 28 November 1997 ECtHR, Canea Catholic Church v. Greece (no. 25528/94), 16 December 1997 ECtHR, United Communist Party of Turkey and Others v. Turkey (no. 133/1996/752/951), 30 January 1998 ECtHR, Guerra and Others v. Italy (no. 116/1996), 19 February 1998 ECtHR, Larissis and Others v. Greece (nos. 23372/94; 26377/94; 26378/94), 24 February 1998

xii

table of cases

ECtHR, Kurt v. Turkey (no. 15/1997/799/1002), 25 May 1998 ECtHR, Socialist Party and Others v. Turkey (no. 20/1997/804/1007), 25 May 1998 ECtHR, Incal v. Turkey (no. 41/1997/825/1031), 9 June 1998 ECtHR, Twalib v. Greece (no. 24294/94), 9 June 1998 ECtHR, Sidiropoulos v. Greece (no. 26695/96), 10 July 1998 ECtHR, B.B. v. France, (no. 30930/96), 9 September 1998 ECtHR, Amirthalingam v. Germany (no. 41088/98), 18 September 1998 ECtHR, Aka v. Turkey (no. 107/1997/891/1103), 23 September 1998 ECtHR, Demir and Others v. Turkey (no. 71/1997/855/1062–1064), 23 September 1998 ECtHR, Lehideux et Isorni v. France (no. 55/1997/839/1045), 23 September 1998 ECtHR, Portington v. Greece (no. 28523/95), 23 September 1998 ECtHR, Çiraklar v. Turkey (no. 70/1997/854/1061), 28 October 1998 ECtHR, Bezabi v. Germany (no. 43891/98), 29 October 1998 ECtHR, Ariz and Others v. Germany (no. 37669/97), 30 October 1998 ECtHR, Loganathan v. Germany (no. 44667/98), 8 December 1998 ECtHR, Tsavachidis v. Greece (no. 28802/95), 21 January 1999 ECtHR, Tsarknias v. Greece (no. 45629/99), 30 March 1999 ECtHR, Ceylan v. Turkey (no. 23556/94), 8 June 1999 ECtHR, Gerger v. Turkey (no. 24919/94), 8 June 1999 ECtHR, Polat v. Turkey (no. 23500/94), 8 June 1999 ECtHR, Ebrahimzadeh v. Germany (no. 47547/99), 29 June 1999 ECtHR, Başkaya and Okçuoğlu v. Turkey (no. 23536/94 and 24408/94), 8 July 1999 ECtHR, Çakici v. Turkey (no. 23657/94), 8 July 1999 ECtHR, Erdoğdu and İnce v. Turkey (no. 25067/94), 8 July 1999 ECtHR, Karataş v. Turkey (no. 23168/94), 8 July 1999 ECtHR, Okçuoğlu v. Turkey (no. 24246/94), 8 July 1999 ECtHR, Sürek and Özdemir v. Turkey (no. 23927/94), 8 July 1999 ECtHR, Sürek v. Turkey (Sürek II) (no. 24122/94), 8 July 1999 ECtHR, Selmouni v. France (no. 25803/94), 28 July 1999 ECtHR, Freedom and Democracy Party (ÖZDEP) v. Turkey (no. 23885/ 94), 12 August 1999 ECtHR, Basika-Nkinsa v. Germany (no. 47638/99), 31 August 1999 ECtHR, Lustig-Prean & Beckett v. UK (nos. 31417/96; 32377/96), 27 September 1999 ECtHR, Smith and Grady v. UK (nos. 33985/96; 33986/96), 27 September 1999

table of cases

xiii

ECtHR, Öztürk v. Turkey (no. 22479/93), 28 September 1999 ECtHR, Zielinski and Others v. France (nos. 24846/94; 34165/96; 34173/96), 28 October 1999 ECtHR, Serif v. Greece (no. 38178/97), 14 December 1999 ECtHR, Salgueiro da Silva Mouta v. Portugal (no. 33290/96), 21 December 1999 ECtHR, Agga v. Greece (no. 37439/97), 25 January 2000 ECtHR, Cooke v. Austria (no. 25878/94), 8 February 2000 ECtHR, T.I. v. United Kingdom (no. 43844/98), 7 March 2000 ECtHR, Özgür Gündem v. Turkey (no. 23144/93), 16 March 2000 ECtHR, Rushiti v. Austria (no. 28389/95), 21 March 2000 ECtHR, Skender Fiqaj and Others v. France (no. 53491/99), 6 April 2000 ECtHR, Thlimmenos v. Greece (no. 34369/97), 6 April 2000 ECtHR, Velikova v. Bulgaria (no. 41488/98), 18 May 2000 ECtHR, Timurtaş v. Turkey (no. 23531/94), 13 June 2000 ECtHR, Erdoğdu v. Turkey (no. 25723/94), 15 June 2000 ECtHR, Cha’are Shalom Ve Tsedek v. France (no. 27417/95), 27 June 2000 ECtHR, İlhan v. Turkey (no. 22277/93), 27 June 2000 ECtHR, Salman v. Turkey (no. 21986/93), 27 June 2000 ECtHR, Tsingour v. Greece (no. 40437/98), 6 July 2000 ECtHR, Scozzari and Giunta v. Italy (nos. 39221/98 and 41963/98), 13 July 2000 ECtHR, Şener v. Turkey (no. 26680/95), 18 July 2000 ECtHR, Biba v. Greece (no. 33170/96), 26 September 2000 ECtHR, Maaouia v. France (no. 39652/98), 5 October 2000 ECtHR, Akkoç v. Turkey (no. 22947/93, 22948/93), 10 October 2000 ECtHR, Damla and Others v. Germany (no. 61479/00), 26 October 2000 ECtHR, Hasan and Chaush v. Bulgaria (no. 30985/9626), 26 October 2000 ECtHR, Taş v. Turkey (no. 24396/94), 14 November 2000 ECtHR, Çiçek v. Turkey (no. 25704/94), 27 February 2001 ECtHR, Dougoz v. Greece (no. 40907/98), 6 March 2001 ECtHR, Peers v. Greece (no. 28524/95), 19 April 2001 ECtHR, I.S. v. Bulgaria (no. 32438/96), 3 May 2001 ECtHR, Stefanov v. Bulgaria (no. 32438/96), 3 May 2001 ECtHR, Gorzelik and Others v. Poland (no. 44158/98), 17 May 2001 ECtHR, Kress v. France (no. 39594/98), 7 June 2001 ECtHR, Johannische Kirche and Peters v. Germany (no. 41754/98), 10 July 2001 ECtHR, Ekin v. France (no. 39288/98), 17 July 2001 ECtHR Grande Oriente v. Italy (no. 35972/97), 2 August 2001

xiv

table of cases

ECtHR, Stankov and United Macedonian Organization ILINDEN v. Bulgaria (nos. 29221 and 29225/95), 2 October 2001 ECtHR, Kalantari v. Germany (no. 51342/99), 11 October 2001 ECtHR, Fédération Chrétienne des Témoins de Jéhovah v. France (no. 53430/99), 6 November 2001 ECtHR, Fogarty v. UK (no. 37112/97), 21 November 2001 ECtHR, Yagtzilar and Others v. Greece (no. 41727/98), 6 December 2001 ECtHR, Sadik Ahmet and Others v. Greece (no. 64756/01), 3 February 2002 ECtHR, Fretté v. France (no. 36515/97), 26 February 2002 ECtHR, Sajtos v. Greece (no. 53478/99), 21 March 2002 ECtHR, Yazar and Others and the People’s Labour Party (HEP) v. Turkey (no. 22723/93), 9 April 2002 ECtHR, Djamel Lounis v. France (no. 49137/99), 25 April 2002 ECtHR, Pretty v. UK (no. 2346/02), 29 April 2002 ECtHR, Willis v. UK (no. 36042/97), 11 June 2002 ECtHR, Anguelova v. Bulgaria (no. 38361/97), 13 June 2002 ECtHR, Öneryildiz v. Turkey (no. 48939/99), 18 June 2002 ECtHR, Orhan v. Turkey (no. 25656/94), 18 June 2002 ECtHR, Al-Nashif and Others v. Bulgaria (no. 50963/99), 20 June 2002 ECtHR, Wilson, National Union of Journalists and Others v. UK (nos. 30668/96; 30671/96; 30678/96), 2 July 2002 ECtHR, Nouhaud and Others v. France (no. 33424/96), 9 July 2002 ECtHR, Christine Goodwin v. UK (no. 28957/95), 11 July 2002 ECtHR, I v. UK (no. 25680/94), 11 July 2002 ECtHR, Ali Özcan v. Turkey (no. 44199/98), 3 October 2002 ECtHR, Arif Acarca v. Turkey (no. 45823/99), 3 October 2002 ECtHR, Habip Balci v. Turkey (no. 45822/99), 3 October 2002 ECtHR, Habip Gündoğdu v. Turkey (no. 47503/99), 3 October 2002 ECtHR, Helmi Başpinar v. Turkey (no. 45631/99), 3 October 2002 ECtHR, Mahir Kayseri v. Turkey (no. 46643/99), 3 October 2002 ECtHR, Mehmet Pektaş v. Turkey (no. 39687/98), 3 October 2002 ECtHR, Murat Soysever v. Turkey (no. 39826/98), 3 October 2002 ECtHR, Nuri Dağli v. Turkey (no. 45373/99), 3 October 2002 ECtHR, O.Ö. v. Turkey (no. 42137/98), 3 October 2002 ECtHR, Osman Balci v. Turkey (no. 48718/99), 3 October 2002 ECtHR, Özkan Dal and Erdal Özen v. Turkey (no. 45378/99), 3 October 2002 ECtHR, Şahin Özdaş v. Turkey (no. 45555/99), 3 October 2002 ECtHR, Tuncer Duman v. Turkey (no. 42788/98), 3 October 2002 ECtHR, Yusuf Önce v. Turkey (no. 45627/99), 3 October 2002 ECtHR, Ziya Çelikateş and Others v. Turkey (no. 45824/99), 3 October 2002 ECtHR, Agga v. Greece (no. 2) (nos. 50776/99; 52912/99), 17 October 2002

table of cases

xv

ECtHR, Algür v. Turkey (no. 32574/96), 22 October 2002 ECtHR, Beck, Cop and Bazely v. UK (nos. 43535/99; 43536/99; 43537/99), 22 October 2002 ECtHR, Perkins and R v. UK (nos. 43208/98; 44875/98), 22 October 2002 ECtHR, Yildiz v. Austria (no. 37295/97), 31 October 2002 ECtHR, Bilasi-Ashri v. Austria (no. 3314/02), 26 November 2002 ECtHR, Islamische Religionsgemeinschaft v. Germany (no. 53871/00), 5 December 2002 ECtHR, Dicle on Behalf of the Democracy Party (DEP) v. Turkey (no. 25141/94), 10 December 2002 ECtHR, Molla Houseïn v. Greece (no. 63821/00), 12 December 2002 ECtHR, A. v. UK (no. 35373/97), 17 December 2002 ECtHR, L. and V. v. Austria (nos. 39392/98, 39829/98), 9 January 2003 ECtHR, S.L. v. Austria (no. 45330/99), 9 January 2003 ECtHR, Imam v. Greece (no. 63719/00), 6 February 2003 ECtHR, Jakupovic v. Austria (no. 36757/97), 6 February 2003 ECtHR, Karabouyiouclou v. Greece (no. 63824/00), 6 February 2003 ECtHR, Ouzoun v. Greece (no. 63796/00), 6 February 2003 ECtHR, Toutziar v. Greece (no. 63949/00), 6 February 2003 ECtHR, Ramazan Akbulut v. Turkey (no. 45624/99), 6 February 2003 ECtHR, Refah Partisi (The Welfare Party) and Others v. Turkey (no. 41340/98), 13 February 2003 ECtHR, Öcalan v. Turkey (no. 46221/99), 12 March 2003 ECtHR, Deli Hatzoglou v. Greece (no. 67754/01), 3 April 2003 ECtHR, Kehagia v. Greece (no. 67115/01), 3 April 2003 ECtHR, Yilmaz v. Germany (no. 52853/99), 17 April 2003 ECtHR, Van Kück v. Germany (no. 35968/97), 12 June 2003 ECtHR, Garaudy v. France (no. 65831/01), 24 June 2003 ECtHR, Sedat Şen and Others v. Turkey (no. 45824/99), 8 July 2003 ECtHR, Craxi (no.2) v. Italy (no. 25337/94), 17 July 2003 ECtHR, Karner v. Austria (no. 40016/98), 24 July 2003 ECtHR, Koua Poirrez v. France (no. 40892/98), 30 September 2003 ECtHR, Socialist Party of Turkey (STP) and Others v. Turkey (no. 26482/95), 12 November 2003 ECtHR, Palau Martinez v. France (no. 64927/01), 16 December 2003 ECtHR, İpek v. Turkey (no. 25760/94), 17 February 2004 ECtHR, Görgülü v. Germany (no. 74969/01), 26 February 2004 ECtHR, Radovanovic v. Austria (no. 42703/98), 22 April 2004 ECtHR, Lotter and Lotter v. Bulgaria (no. 39015/97), 19 May 2004 ECtHR, Hannover v. Germany (no. 59320/00), 24 June 2004 ECtHR, Vergos v. Greece (no. 65501/01), 24 June 2004

xvi

table of cases

ECtHR, Chauvy and Others v. France (no. 64915/01), 29 June 2004 ECtHR, Doğan and Others v. Turkey (8803-8811/02, 8813/02 and 88158819/02), 29 June 2004 ECtHR, Leyla Sahin v. France (no. 44774/98), 29 June 2004 ECtHR, Hasan Sert v. Turkey (no. 47491/99), 8 July 2004 ECtHR, Ospina Vargas v. Italy (no. 40750/98), 14 October 2004 ECtHR, Mehmet Emin Yüksel v. Turkey (no. 40154/98), 20 October 2004 ECtHR, Woditschka and Wilfling v. Austria (nos. 69756/01, 6306/02), 21 October 2004 ECtHR, Çelik and İmret v. Turkey (no. 44093/98), 26 October 2004 ECtHR, Hasan İlhan v. Turkey (no. 22494/93), 9 November 2004 ECtHR, Dicle v. Turkey (no. 46733/99), 10 November 2004 ECtHR, Ünal Tekeli v. Turkey (no. 29865/96), 16 November 2004 ECtHR, Supreme Holy Council of the Muslim Community v. Bulgaria (no. 39023/97), 16 December 2004 ECtHR, Michele Dayras and Others v. France (no. 65390/01), 6 January 2005 ECtHR, Phull v. France (no. 35753/03), 11 January 2005 ECtHR, Py v. France (no. 66289/01), 11 January 2005 ECtHR, Ladner v. Austria (no. 18297/03), 3 February 2005 ECtHR, Taşkin and Others v. Turkey (no. 46117/99), 30 March 2005 ECtHR, Alija v. Greece (no. 73717/01), 7 April 2005 ECtHR, Jancikova v. Austria (no. 56483/00), 7 April 2005 ECtHR, Jarnevic & Profit v. Greece (no. 28338/02), 7 April 2005 ECtHR, Democracy and Change Party and Others v. Turkey (nos. 39210/98 and 39974/98), 26 April 2005 ECtHR, Öcalan v. Turkey (no. 46221/99), 12 May 2005 ECtHR, Wolfmeyer v. Austria (no. 5263/03), 26 May 2005 ECtHR, Emek Partisi and Şenol v. Turkey (no. 39434/98), 31 May 2005 ECtHR, H.G. and G.B. v. Austria (nos. 11084/02, 15306/02), 2 June 2005 ECtHR, Storck v. Germany (no. 61603/00), 16 June 2005 ECtHR, Nachova and Others v. Bulgaria (no. 43577/98; 43579/98), 6 July 2005 ECtHR, Asenov v. Bulgaria (no. 42026/98), 15 July 2005 ECtHR, P.M. v. UK (no. 6638/03), 19 July 2005 ECtHR, Siliadin v. France (no. 73316/01), 26 July 2005 ECtHR, B. and L. v. UK (no. 36536/02), 13 September 2005 ECtHR, Kaldik v. Germany (no. 28526/05), 22 September 2005 ECtHR, United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 44079/98), 20 October 2005 ECtHR, United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 59489/00), 20 October 2005

table of cases

xvii

ECtHR, Ouranio Toxo and Others v. Greece (no. 74989/01), 20 October 2005 ECtHR, Niedzwiecki v. Germany (no. 58453/00), 25 October 2005 ECtHR, Okpisz v. Germany (no. 59140/00), 25 October 2005 ECtHR, Keles v. Germany (no. 32231/02), 27 October 2005 ECtHR, Leyla Şahin v. Turkey (no.44774/98), 10 November 2005 ECtHR, Ivanov and Others v. Bulgaria (no. 46336/99), 24 November 2005 ECtHR, Kurti v. Greece (no. 2507/02), 29 November 2005 ECtHR, Özdemir v. Austria (no. 14308/03), 8 December 2005 ECtHR, Bekos and Koutropoulos v. Greece (no. 15250/02), 13 December 2005 ECtHR, Paturel v. France (no. 54968/00), 22 December 2005 ECtHR, Aristimuño Mendizabal v. France (no. 51431/99), 17 January 2006 ECtHR, R.H. v. Austria (no. 7336/03), 19 January 2006 ECtHR, The United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 59491/00), 19 January 2006 ECtHR, Aydin İçyer v. Turkey (no. 18888/02), 12 February 2006 ECtHR, Osman v. Bulgaria (no. 43233/98), 16 February 2006 ECtHR, Ognyanova and Choban v. Bulgaria (no. 46317/99), 23 February 2006 ECtHR, Tzekov v. Bulgaria (no. 45500/99), 23 February 2006 ECtHR, Martinie v. France (no. 58675/00), 12 April 2006 ECtHR, Ülke v. Turkey (no. 39437/98), 24 April 2006 ECtHR, Mohd v. Greece (no. 11919/03), 27 April 2006 ECtHR, Aydin Tatlav v. Turkey (no. 50692/99), 2 May 2006 ECtHR, Hussun and Others v. Italy (no. 10171/05), 11 May 2006 ECtHR, Midawi v. Italy (no. 17165/05), 11 May 2006 ECtHR, Mohamed v. Italy (no. 10601/05), 11 May 2006 ECtHR, Salem and Others v. Italy (no. 11593/05), 11 May 2006 ECtHR, Grant v. UK (no. 32570/03), 23 May 2006 ECtHR, Erbakan v. Turkey (no. 59405/00), 6 July 2006 ECtHR, Papa v. Greece (no. 21091/04), 6 July 2006 ECtHR, Agga v. Greece (no. 3) (no. 32186/02), 13 July 2006 ECtHR, Agga v. Greece (no. 4) (no. 33331/02), 13 July 2006 ECtHR, Jurisic and Collegium Mehrerau v. Austria (no. 62539/00), 27 July 2006 ECtHR, Kaja v. Greece (no. 32927/03), 27 July 2006 ECtHR, Walker v. UK (no. 37212/02), 22 August 2006 ECtHR, Konrad and Others v. Germany (no. 35504/03), 11 September 2006 ECtHR, Moser v. Austria (no. 12643/02), 21 September 2006 ECtHR, Tüzel v. Turkey (no. 2) (no. 71459/01), 31 October 2006 ECtHR, Düzgören v. Turkey (no. 56827/00), 9 November 2006 ECtHR, Tavli v. Turkey (no. 11449/02), 9 November 2006 ECtHR, Oya Ataman v. Turkey (no. 74552/01), 5 December 2006

xviii

table of cases

ECtHR, Yarar v. Turkey (no. 57258/00), 19 December 2006 ECtHR, Mutlu v. Turkey (no. 8006/02), 20 December 2006 ECtHR, Fener Rum Lisesi Vakfi v. Turkey (no. 34478/97), 9 January 2007 ECtHR, Musa and Others v. Bulgaria (no. 61259/00), 11 January, 2007 ECtHR, Alsayed Allaham v. Greece (no. 25771/03), 18 January 2007 ECtHR, Kavakçi v. Turkey (no. 71907/01), 5 April 2007 ECtHR, Ivanova v. Bulgaria (no. 52435/99), 12 April 2007 ECtHR, Vasilev v. Greece (no. 2736/05), 18 April 2007 ECtHR, Asebeha Gebremedhin [Gaberamadhiam] v. France (no. 25389/05), 29 April 2007 ECtHR, John v. Greece (no. 199/05), 10 May 2007 ECtHR, Runkee and White v. UK (no. 42949/98), 10 May 2007 ECtHR, Perlala v. Greece (no. 17721/04), 22 May 2007 ECtHR, Zelilof v. Greece (no. 17060/03), 24 May 2007 ECtHR, Noel Baker v. Greece (no. 32155/04), 21 June 2007 ECtHR, Peca v. Greece (no. 14846/05), 21 June 2007 ECtHR, Karagiannopoulos v. Greece (no. 27850/03), 21 June 2007 ECtHR, Yedikule Surp Pirgiç Ermeni Hastanesi Vakfi v. Turkey (no. 50147/99 and 51207/99), 26 June 2007 ECtHR, Celniku v. Greece (no. 21449/04), 5 July 2007 ECtHR, Angelova and Iliev v. Bulgaria (no. 55523/00), 26 July 2007 ECtHR, Hasan and Eylem Zengin v. Turkey (no. 1448/04), 9 October 2007 ECtHR, Bekir-Ousta and Others v. Greece (no. 35151/05), 11 October 2007 ECtHR, Gjashta v. Greece (no. 4983/04), 18 October 2007 ECtHR, Behar Metushi v. Greece (no. 34148/05), 25 October 2007 ECtHR, Luan Metushi v. Greece (no. 34643/05), 25 October 2007 ECtHR, D.H. v. Czech Republic (no. 57325/00), 13 November 2007 ECtHR, Petropoulou-Tsakiris v. Greece (no. 44803/2004), 6 December 2007 ECtHR, E.B. v. France (no. 43546/02), 22 January 2008 ECtHR, Alexandridis v. Greece (no. 19516/06), 21 February 2008 ECtHR, Ramzy v. the Netherlands, (no. 37201/06), 28 February 2008 ECtHR, Saadi v. Italy (no. 37201/06), 28 February 2008 ECtHR, El Morsli v. France (no. 15585/06), 4 March 2008 ECtHR, Sekseni v. Greece (no. 41515/05), 6 March 2008 ECtHR, Emin and Others v. Greece (no. 34144/05), 27 March 2008 ECtHR, Tourkiki Enosi Xanthis and Others v. Greece (no. 26698/05), 27 March 2008 ECtHR, Fener Rum Patrikliği (Ecumenical Patriarchate) v. Turkey (no. 14340/05), 8 July 2008 ECtHR, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40825/98), 31 July 2008 ECtHR, Mann Singh v. France (no. 24479/07), 13 November 2008

table of cases

xix

ECtHR, Dogru v. France (no. 27058/05) 4 December 2008 ECtHR, Kervanci v. France (no. 31645/04), 4 December 2008 ECtHR, Samatya Surp Kevork Ermeni Kilisesi, Mektebi ve Mezarliği Vakfi Yönetim Kurulu v. Turkey (no. 1480/03), 16 December 2008 ECtHR, Yedikule Surp Pirgiç Ermeni Hastanesi Vakfi v. Turkey (no. 36165/02), 16 December 2008 ECtHR, N.S. v. Italy (no. 37201/06), pending ECtHR, O. v. Italy (no. 37257/06), pending ECtHR, S. v. Italy (no. 37336/06), pending ECtHR, M.B.S. v. Italy (no. 38128/06), pending ECtHR, C.B.Z. v. Italy (no. 44006/06), pending ECtHR, B. v. Italy (no. 46792/06), pending

European Court of Justice ECJ, Case 4/73, Nold v. Commission [1974] ECR 491, 14 May 1974 ECJ, Case 36/75, Rutili v. Minister for the Interior [1975] ECR 1219, 28 October 1975 ECJ, C-213/89, The Queen v. Secretary of State for Transport, ex parte Factortame [1990] ECR I-2433, 19 June 1990

Domestic Courts France Court of Cassation (Crim.), 27 November 1966, Commandos anti-IVG, Bull. n. 431 Constitutional Council, 15 January 1975 (no. 74-54 DC), Interruption volontaire de grossesse (IVG) Court of Cassation (Ch. Mixte), 24 May 1975, Café Jacques Vabre, Bull. no. 4 Council of State, 27 October 1978, Debout, Rec. Lebon, p. 395 Court of Cassation (Civ. I), 18 May 1989, Bull. no. 198 Council of State (Ass.), 20 October 1989, Nicolo, Rec. Lebon, p. 190 Council of State (Ass.), 21 December 1990, Confédération nationale des associations familiales catholiques et autres, Rec. Lebon, 369 Constitutional Council, 9 May 1991 (no. 91-290 DC), Law establishing the territorial community of Corsica Council of State, 6 July 1995, Opinion on the ratification of the Framework Convention for the Protection of National Minorities Council of State, 24 September 1996, Opinion on France’s ratification of the European Charter of Regional or Minority Languages

xx

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Court of Cassation (Soc.), 22 January 1998, Koua Poirrez, JCP G (1998), II, 1011 Council of State (Ass.), 30 October 1998, Sarran, Levacher et Alii, Rec. Lebon, p. 368 Council of State (Ass.), 8 February 2007 (no. 279522), Gardedieu Court of Cassation (Soc.), 14 January 1999, Bozkurt, JCP (1999), II, 10082 Court of Cassation (Ass.pl.), 2 June 2000, Fraisse, Bull. no. 4 Constitutional Council, 19 November 2004 (no. 505-2004 DC), Traité établissant une Constitution pour l’Europe Germany Federal Constitutional Court, 22 May 1975, in BVerfGE 39, 334ff Federal Constitutional Court, Pakelli, 11 October 1985, in Neue Juristische Wochenschrift (1986), 1425–1427 Federal Constitutional Court, 26 March 1987, in BVerfGE 74, 370 Federal Administrative Court, 2 September 1997, in Neue Zeitschrift für Verwaltungsrecht (1999), 311 OLG Naumburg, 30 June 2004, Familienrechtszeitung (2004), 1510–1512 Federal Constitutional Court, 6 July 2004, (nos. 1 BvL 4/97, 1 BvL 5/97 and 1 BvL 6/97) Federal Constitutional Court, 14 October 2004, (no. 2 BvR 1481/04) Turkey Constitutional Court (E. 1990/25, K: 1991/1), 10 January 1991. Council of State, 5th Chamber (E: 1986/1723, K: 1991/933), 22 May 1991 Council of State, 5th Chamber (E: 2004/291, K: 2004/3370), 29 September 2004 Council of State, 13th Chamber (E: 2005/588, K: 2005/692), 8 February 2005 Court of Cassation, Civil Plenary (E: 2005/9-320, K: 2005/355), 25 May 2005 Court of Cassation, Penal Plenary (E: 2005/7-24, K: 2005/56), 24 May 2005 Court of Cassation, 9th Penal Chamber (E: 2004/3780, K: 2004/3879), 13 July 2004 UK High Court of Justice, Queen’s Bench Division, Hunt v. Clarke [1889] 61 L.T. 343 House of Lords, Derbyshire County Council v. Times Newspapers Ltd [1992] 3 WLR 28, 18 February 1993

table of cases

xxi

House of Lords, R v. Secretary of State for the Home Department, ex parte Brind and Others [1991] 1 All ER 720, 7 February 2001 House of Lords, R v. A [2001] 3 All ER 1, 17 May 2001 House of Lords, R v. Smith [2001] AC 146, 13 December 2001 House of Lords, Bellinger v. Bellinger [2003] UKHL 21, 10 April 2003 House of Lords, Ghaidan v. Godin-Mendoza [2004] UKHL 30, 21 June 2004

List of Contributors Dia Anagnostou, Senior Research Fellow, Hellenic Foundation for European and Foreign Policy (Athens); Lecturer of Politics, Macedonia University of Thessaloniki (Thessaloniki) Emmanuelle Bribosia, Professor of European and Human Rights Law, Director of the Legal Department of the Institute for European Studies, Université Libre de Bruxelles (Brussels) Kerstin Buchinger, Legal Researcher, Ludwig Boltzmann Institute of Human Rights (Vienna) and Constitutional Court Rashko Dorosiev, Programme Director, Centre for Liberal Strategies (Sofia) Yonko Grozev, Programme Director, Centre for Liberal Strategies (Sofia) Christoph Gusy, Professor of Public Law, Constitutional Law and Constitutional History, Bielefeld University (Bielefeld) Dilek Kurban, J.D., Programme Officer, Turkish Economic and Social Studies Foundation (Istanbul) Yiorgos Kaminis, Greek Ombudsman; Assistant Professor of Constitutional Law, National Kapodistrian University of Athens (Athens) Barbara Liegl, Political Scientist, Ludwig Boltzmann Institute of Human Rights (Vienna); CEO of the NGO ZARA – Zivilcourage und Anti-RassismusArbeit Susan Millns, Professor of Law, University of Sussex (Sussex) Sebastian Müller, Researcher, Faculty of Law, Bielefeld University (Bielefeld) Evangelia Psychogiopoulou, Research Fellow, Hellenic Foundation for European and Foreign Policy (Athens) Christopher Rootes, Professor of Political Sociology, University of Kent (Kent) Isabelle Rorive, Professor of Comparative Law, Faculty of Law, Université Libre de Bruxelles (Brussels)

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list of contributors

Clare Saunders, Lecturer in Politics, University of Southampton (Southampton) Serena Sileoni, Research Fellow in Constitutional Law, University of Florence (Florence) Daniel Smilov, Programme Director, Centre for Liberal Strategies (Sofia); Recurrent Visiting Professor of Comparative Constitutional Law, Central European University (Budapest); Assistant Professor of Political Theory, University of Sofia (Sofia) Astrid Steinkellner, Legal Researcher, Ludwig Boltzmann Institute of Human Rights (Vienna) Gabriel Swain, Research Associate, Centre for the Study of Social and Political Movements, University of Kent (Kent) Amaya Úbeda de Torres, Researcher, Institute of European Studies, Université Libre de Bruxelles (Brussels) and Centro de Estudios Políticos y Constitucionales (Madrid)

Chapter One The Strasbourg Court, Democracy and the Protection of Marginalised Individuals and Minorities Dia Anagnostou 1. Introduction The European Convention on Human Rights (hereby ECHR or Convention) is widely recognised to be a transnational regime of rights review that has achieved a kind of authority and jurisdiction that is unique in the world. An instrumental role in its post-World War II evolution has been played by its judicial arm, the European Court of Human Rights (hereby ECtHR or Court). The expansion of the Court’s jurisprudential scope and authority vis-à-vis national legal and political orders is evidenced in an unparalleled rise in its caseload since 1990.1 Tantamount to a kind of European-wide ‘rights revolution,’2 such an increase reflects sustained judicial attention to rights claims, as well as a widespread sense of effectiveness of the judicial review exercised by it. The expansion of the Court’s caseload cannot exclusively be attributed to the entry of 24 new states from central-east and southeast Europe and the former Soviet Union in the Convention system in the 1990s.3 Neither can it solely be seen to have resulted from the 1998 overhaul of the system that rendered mandatory the right to individual petition.4 It has, furthermore, and most importantly been accomplished by extending judicial interpretation of

1

2 3

4

On the evolution of the ECtHR case load over the past 10 years, see The European Court of Human Rights – Some facts and figures 1998–2008 (Strasbourg: Council of Europe, 2008). C. Epp, The rights revolution (Chicago: The University of Chicago Press, 1988), pp. 2–3. It is estimated that even if one adjusts for the increased number of contracting states that joined the Convention system in the 1990s, the number of individual applications between 1990 and 2002 still saw nearly a nine-fold increase. See R. Cichowski, ‘Courts, rights and democratic participation’, Comparative Political Studies 39/1 (February 2006), 50, at 58. This became effective with the entry into force of Protocol no. 11 to the ECHR in November 1998, which also abolished the Commission and created a single Court.

2

Chapter One

Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. Exemplifying this development is the ECtHR’s growing attention to and engagement with rights claims originating from marginalised individuals and individuals from minorities. Even though there is no comprehensive count to document this, a cursory overview of existing case-law collections and databases clearly indicates a substantially upward trend from 1990 onwards. By the term ‘marginalised individuals and minorities’ we mean those segments of the society who, due to a variety of reasons, are silenced within the democratic process, or at least are significantly constrained in voicing and pursuing their claims through it.5 These include individuals who belong to ethnic, religious or national minorities, immigrants who may or may not be citizens of a state, as well as those seeking political asylum. It also includes individuals whose rights are curtailed because they are in confinement conditions, displaced or imprisoned. It can also encompass persons who are at a disadvantage because of their political beliefs or who are socially stigmatised because of their sexual preference and identity. This description of marginalised individuals and minorities reflects far from a coherent set of issues and rights. Who these individuals and minorities are is intrinsically linked to national context and therefore varies greatly across different states, as we discuss subsequently in this introduction. Since the 1990s, marginalised individuals and minorities have appealed, alone or on behalf of a community6, to the ECtHR with compelling claims arising out of particular national conditions, distortions or gaps in domestic rights protection. In an increasingly variegated set of cases, they have challenged national laws, policies and practices on grounds of violating their rights under the Convention. This has enabled the ECtHR to assume a more visible role in protecting disadvantaged and vulnerable individuals and minorities, and to promote their legitimate claims in the public sphere of member states. At the same time, it has also brought to the fore longstanding concerns about the role of judicial review in relation to the democratic processes, which are particularly apposite with regard to a European, compared to a national, judiciary. The tendency of individuals from disadvantaged and vulnerable segments of society to resort to courts for the protection of their rights is far from a 5

6

C. Harvey and S. Livingstone, “Protecting the marginalised: The role of the ECHR”, North Irish Legal Quarterly 51 (2000), 445, at 445. Article 34 ECHR gives the right to file a petition to ‘any person, non-governmental organisation or group of individuals claiming to be the victim of a violation’ of one of the Convention rights. Groups and organisations can bring claims but they must be victims in their own right.

The Strasbourg Court, Democracy and the Protection

3

new phenomenon. It has primarily been a venue for pursuing rights and empowering individuals and groups who are less privileged and less likely to be influential through electoral politics and the legislative political process. For instance, such constraints led African Americans in the 1950s and 1960s in the United States to defend their civil rights through the courts, instigating far-reaching changes in civil rights politics and policies. Judicial initiatives to defend the rights of minorities, immigrants and other marginalised individuals have arguably also been on the rise in continental Europe over the past few decades.7 Such a trend has gone hand-in-hand with the expansion or enhanced importance of judicial review of legislation by constitutional tribunals.8 Yet, the resort of marginalised individuals and minorities to the ECtHR and the extent to which the latter has attended to their claims is a development of profound significance for a number of reasons. It is significant because it was neither intended nor anticipated by the original architects of the Convention system. Convention rights expressly apply to individuals rather than to any kind of groups.9 As a set of fundamental rights, the Convention contains first generation civil and political rights, rather than social and economic, let alone cultural, rights.10 Its catalogue of basic civil and political rights continues to lack a freestanding clause prohibiting discrimination on grounds of sex, ethnic or national origin, religion and political belief, among others. Any notion of minority-related or immigrants’ rights as such is not contained in the Convention.11 Indeed, minority rights had been explicitly removed from the European international system in the post-World War II period. Initiatives in the 1990s to grant protection to minorities as collective entities foundered on state opposition.12 Nonetheless, marginalised

7

8

9

10

11

12

C. Joppke and E. Marzal, ‘Courts, the new constitutionalism and immigrant rights: The case of the French Conseil Constitutionnel’, European Journal of Political Research 43 (2004), 823. C. Guarnieri, ‘Courts and marginalised groups: Perspectives from continental Europe’, International Journal of Constitutional Law 5/2 (2007), 187. S. Trechsel, ‘Human rights and minority rights – Two sides of the same coin? A sketch’, in Mahoney et al. (eds.) Protecting human rights: The European perspective (Berlin: Carl Heymanns Verlag KG, 2000), pp. 1443–1453. XJ. Conaghan and S. Millns, ‘Gender, sexuality and human rights: Introduction’, Feminist XLegal Studies 13 (2005), 3, at 6. On the weakness of the Convention in protecting cultural rights, see S. Stavros, ‘Cultural rights for national minorities – Covering the deficit in the protection provided by the ECHR’, IALS Bulletin 25 (January 1997), 7. P. Thornberry and M.-A. Martin Estebanez, Minority rights in Europe (Strasbourg: Council of Europe Publishing, 2004), p. 68. In the early 1990s, the Parliamentary Assembly of the Council of Europe had proposed an additional protocol to the ECHR for the protection of national minorities. This, however, was

4

Chapter One

individuals alone or on behalf of a community can claim, and have often claimed, Convention provisions to protect their rights and/or to promote a variety of demands vis-à-vis states.13 Through the Court’s interpretation of the political and civil rights safeguarded in the ECHR, the scope of the Convention regime progressively came to embrace a multifaceted set of rights claimed by marginalised individuals and minority concerns. This volume explores the role and impact of the ECtHR in protecting marginalised individuals and minorities. What factors and conditions have led growing numbers of such individuals and minorities to pursue their rights and freedoms in front of the ECtHR and how has the latter responded to these? Does the Convention and the jurisprudence of the Strasbourg Court enhance national level protection and expand their rights? Or do they mainly tend to fill in relatively minor gaps or occasional lapses in national rights guarantees? What are the implications for democracy at the national level? Comprising a set of eight country-based case studies, this volume explores these questions that have received little attention in the study of the Convention system.14 It examines litigation on behalf of marginalised individuals and minorities, and the relevant ECtHR jurisprudence across eight countries: Greece, Bulgaria, Turkey, the UK, France, Germany, Austria, and Italy. The role of the ECtHR and its impact on the rights and protection afforded to marginalised individuals and minorities is examined in reference to its jurisprudence in response to their claims. The importance of the judicial review exercised by it significantly varies across different states. It is inseparably linked, among other things, to two partly interrelated factors: a) the national legal and judicial context, and b) the extent and nature of relevant litigation on behalf of marginalised individuals and minorities across different states.

13

14

not accepted by the Committee of Ministers of the Council due to the lack of consensus among states. In place of the more extensive and elaborate aforementioned protocol to the ECHR, the Council adopted the more restrictive Framework Convention for the Protection of National Minorities. For a discussion on this, see F. Benoit-Rohmer, Framework Convention for the Protection of National Minorities (Strasbourg, Council of Europe, 1995), p. 22. G. Gilbert, ‘The burgeoning minority rights jurisprudence of the ECtHR’, Human Rights Quarterly 24 (2002), 736. The contributions to this volume are part of a larger research project that is centrally interested in identifying and explaining litigation patterns and domestic impact of the Strasbourg Court across a number of countries, with a specific emphasis on rights claims of minorities. The JURISTRAS project, the Strasbourg Court, democracy and the human rights of individuals and communities: patterns of litigation, state implementation and domestic reform (Contract no. FP6-028398), is coordinated by the Hellenic Foundation for European and Foreign Policy (ELIAMEP). Further information on the project’s research and activities can be found at: http://www.juristras.eliamep.gr.

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The ECtHR engagement with their rights claims and concerns cannot be understood independently from domestic legal, social, and political factors that may promote, or conversely limit, recourse to Strasbourg. Through its jurisprudence, it in turn further influences litigation patterns by pronouncing more expansive, or conversely, more restrictive interpretations of Convention rights in relations to such claims. The first part of this introductory chapter discusses the analytical assumptions and methodological considerations of this study. Subsequently, we depict the importance of national context in reference to domestic legal factors, judicial institutions of rights protection, as well as national scholarship of human rights and the ECHR. The third section discusses litigation patterns regarding marginalised individuals and minorities and the ECtHR jurisprudence in response to the petitions it has reviewed. The last part provides an overview of the volume.

2. Minorities and the Marginalised in the ECtHR: Analytical and Methodological Considerations The Convention provisions, of which the Strasbourg Court is the guardian, are closely linked to a particular liberal conception of ‘effective political democracy.’15 Separation of powers, accountability of government, the protection of individual rights primarily in public life but also respect of their right to private and family life are among its basic cornerstones. Majority rule is a central pillar of this democratic society, yet, it is equally recognized that it must be reconciled with the frequently unwelcome or unpalatable views held by minorities.16 As explicitly stated in Young, James and Webster (1981),17 a cardinal issue that the Court has grappled with in its jurisprudence has been how to prevent abuse of power by social and political majorities and to ensure fair treatment of minorities. Over the years, the Court has dealt with an extremely diverse set of concerns raised by different kinds of marginalised individuals and minorities.

15

16

17

In the preamble to the Convention, the signatory states explicitly affirmed ‘their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend’ (emphasis added). S. Marks, ‘The ECHR and its ‘Democratic Society’ ’, British Yearbook on International Law 66 (1996), 209, at 212. ECtHR, Young, James and Webster v. UK (nos. 7601/76 and 7806/77), 13 August 1981.

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These have originated from individuals whose views, ethnic-national origins or way of life set them apart from – and potentially in conflict with – the majority. Subject to majoritarian pressures, various forms of discrimination and consequently rights limitations have been individuals who belong to cultural, religious or ethnically distinct historical minorities or ‘new’ immigrant communities. Often, albeit not always, minority status translates into socialeconomic marginalisation and political disadvantage. But the political marginalisation of individuals, in the sense of not being able to enjoy the full spectrum of civil-political rights and therefore not being able to voice concerns through political processes, may also be due to confinement (to a prison, or mental hospital). It may also be due to lack of legal and citizenship status in a particular country, as it is the case for hundreds of thousands of immigrants and asylum seekers across Europe. The country case studies included in this volume cover judgments that encompass cases brought by individuals who belong to a minority group but also marginalised individuals which have been reviewed on the merits by the ECtHR. The relevant case law under study has originated both from historical religious and ethnic minorities but also increasingly from ‘new’ immigrant minorities and asylum seekers. In this regard, the selected case law touches upon areas of state activity that are closely associated with issues of national sovereignty and distinct national, cultural and historical traditions of member states. It is in such areas of state activity that a judicial review by the Strasbourg Court can potentially be more salient, but also more likely to come into conflict with state prerogatives and therefore be restrained and/or nationally resisted. Initially most petitions from marginalised individuals tended to appeal to the civil rights and freedoms contained in Articles 8–11 ECHR, which include respect for family and private life, religious freedom and conscience, freedom of expression, assembly and association.18 However, over the years, the range of rights claims has expanded to include most Convention provisions. The claims raised have extended beyond these core civil freedoms to encompass other Convention provisions such as Articles 2 (right to life), 3 (prohibition of torture, inhuman or degrading treatment), and 5 (right to liberty and security) among others. In addressing their grievances in front of the Strasbourg

18

While the vast majority of individual petitions to the ECtHR since 1958 by far involve claims and infringements of the right to fair trial (Article 6 ECHR), 1049 Court judgments concern Articles 8–11 ECHR, out of a total number of 8691 judgments issued by the ECtHR from 1958 until 2007, that is 11.5% (author’s estimates based on data drawn from the European Court of Human Rights Annual Activity Report 2007; and Activities of the Court 1958–1996). Articles 8 and 10 ECHR are among the top ten Convention provisions invoked in front of the Strasbourg Court. See R. Cichowski, ‘Courts, rights and democratic participation’, 63.

The Strasbourg Court, Democracy and the Protection

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Court, individuals have at times done so in conjunction with the nondiscrimination provision of Article 14 ECHR.19 The case law under study originates from eight countries that were selected: Austria, Italy, Germany, France, Greece, Bulgaria, Turkey and the United Kingdom. These countries have been selected on the basis of the following considerations. First, while all have cases from marginalised individuals and minorities reviewed by the ECtHR, they significantly differ on the extent of minority-related litigation and case law that they have produced. Countries like Germany and Italy have relatively few cases and adverse judgments, while the UK and Austria have produced significantly larger number of cases. This allows us to inquire into the national factors that promote, or conversely, limit recourse of marginalised individuals and minorities to the ECtHR. Second, the selected countries reflect wide-ranging variation in terms of political development. They include west European democracies that were among the founding members of the Council of Europe and the Convention system (France, UK, Italy, Austria, Germany), south European countries like Greece that made a transition to democracy in the 1970s, former communist countries that democratised in the 1990s (Bulgaria), and democracies in transition (Turkey). Such variation can provide insights into the nature and role of European rights review under different conditions of democracy and political development. Existing legal and social science studies have largely remained aloof to the relevance of the Convention and the role of the ECtHR regarding marginalised individuals and minorities. Legal studies have examined the structure and functions of the Strasbourg Court, as well as the impact of the Convention in relation to national legal approaches and the attitude of national judiciaries. They have advanced a perspective on it largely in reference to the legal structures and hierarchies within each state, i.e. to the status of international treaties in national law, the extent and forms of constitutional review, as well as the relations between the legislative and the judiciary branches.20 More recently, from a broader social science perspective, studies have probed into the consequences of the Convention and its reception in the domestic political and legal order more broadly (Greer 2006; Keller and Stone Sweet 2008). Legal scholars interested in the growing significance of the ECtHR and the Convention for

19 20

See Gilbert, ‘Burgeoning minority rights jurisprudence’, 750–780. B. Conforti and F. Francioni (eds.), Enforcing human rights in domestic courts (Netherlands: Kluwer Law International, 1997); A. Drzemczewski, European Human Rights Convention in domestic law (Oxford: Clarendon Press, 1983); D.J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995).

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minorities have mainly explored the subject on jurisprudential grounds. They have analysed the reasoning and approach of the Court in interpreting particular ECHR principles in response to minority and immigrant claims.21 Still, the resonance and potential consequences of such jurisprudence for states have also escaped the attention of these studies. This volume probes into the consequences that the ECHR incorporation and the Court’s case law have for national-level legal and judicial protection provided to individuals or particular social and minority groups. In this sense, it fills an important gap in the literature identified above. While specifically focusing on marginalised individuals and minorities, it also makes an important contribution to understanding better the nature and workings the Convention system as a whole. In particular, it sheds light to the ways in which the notion of ‘living instrument’ and the ‘margin of appreciation’ doctrine, central to the functioning of the ECHR, materialise in practice in areas that tend to be sensitive for state interests and national identity. By doing so, this study can provide important insights into the relationship between Europeanlevel rights review and national democratic processes. Rapidly changing and pluralist European societies continuously generate conflicting claims that necessitate ongoing review of the content of rights, as well as a redrawing of the boundaries between individual rights and public interests. Legal scholars have time and again dwelled upon the notion of the Convention as ‘living instrument’ originally articulated in Tyrer v. UK.22 It refers to the idea that the legal principles contained in it must be interpreted not in a static manner but in light of changing social conditions and consequently, shifting norms and values that progressively take hold in other member states. While relying on precedent, this assumption has at the same time enabled the ECtHR to depart from its own earlier approaches and advance new interpretations in light of social changes.23 For instance, this can be

21

22 23

For instance, on Article 9 ECHR, see C. Evans, Freedom of religion under the ECHR (Oxford, Oxford University Press, 2001). On the rights of refugees and immigrants, see H. Lambert, ‘The ECtHR and the rights of refugees and other persons in need of protection to family reunion’, International Journal of Refugee Law 11/3 (1999), 427. On ECtHR jurisprudence regarding the rights of historical minorities, see S. Spiliopoulou-Akermark, ‘The limits of pluralism – Recent jurisprudence of the European Court of Human Rights with regard to minorities: Does the prohibition of discrimination add anything?’, Journal of Ethnopolitics and Minority Issues in Europe 3 (2002), available at: http://www.ecmi.de; Gilbert, ‘The burgeoning minority rights jurisprudence’; Thornberry and Estebanez, Minority rights in Europe. ECtHR, Tyrer v. UK (no. 5856/72), 25 April 1978, para. 31. For a detailed and relatively recent discussion of the Convention as a ‘living instrument’ see A. Mowbray, ‘The creativity of the ECtHR’, Human Rights Law Review 5/1 (2005), 57.

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9

evidenced in the case of sexual minorities and individuals who undergo gender reassignment in the UK. In 1986, the Court did not find any infringement of the Convention but it had expressed the need for domestic authorities in the UK to ‘keep under review’ the appropriateness of domestic law.24 By 2002, however, it finally ruled in the context of another case25 that the legislative inaction of the British authorities had failed to adequately safeguard the ECHR rights of transsexuals.26 Partly related to this evolutionary dynamic in interpreting Convention principles is the infamous doctrine of the ‘margin of appreciation.’ While the Court’s role is restricted to determining whether a state has infringed upon a Convention right in a specific case, discretion is granted to national authorities to define the scope of the rights contained in the ECHR.27 In essence, the ‘margin of appreciation’ doctrine captures the subsidiary role of the Convention system and of the ECtHR review as secondary and auxiliary to national structures and norms of rights protection. Prime responsibility for human rights protection rests with national authorities and structures.28 It also draws attention to the diverse legal traditions and cultures of member states that shape how they put to practice Convention norms. In this sense, far from being a source of discord, it is actually considered as a ‘vital ingredient’ in maintaining cohesion.29 This study also provides insights into how changing social standards and deference to national authorities materialise in rights claims advanced by minorities and marginalised individuals, which tend to be at the heart of national sovereignty. It could be argued that the ‘margin of appreciation’ doctrine also entails an implicit recognition about the primacy of national-level democratic processes, as well as about the need for judicial deference to national elected bodies enacting legislation. In this sense, this doctrine touches upon long-debated issues regarding judicial activism and the role and scope of judicial review in contemporary democracies. The dilemmas that they raise are particularly apposite and conspicuous with regard to a European transnational tribunal.

24 25 26 27

28

29

ECtHR, Rees v. UK (no. 9532/81), 17 October 1986, para. 47. ECtHR, Christine Goodwin v. UK (no. 28957/95), 11 July 2002. Mowbray, ‘The creativity of the ECtHR’, 69. S. Greer, The margin of appreciation: Interpretation and discretion under the ECtHR (Strasbourg: Council of Europe Publishing, 2000). P. Mahoney, ‘Judicial activism and judicial self-restraint in the ECtHR: Two sides of the same coin’, Human Rights Law Journal 11 (1990), 57, at 81. R. Blackburn and J. Polakiewicz (eds.) Fundamental rights in Europe: the ECHR and its member states 1950–2000 (Oxford: Oxford University Press, 2001), p. 24.

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3. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship While the case studies included in this volume draw from legal scholarship, they also go beyond it by examining litigation and ECtHR jurisprudence on minority-related claims in relation to their respective national context. This approach is premised on the assumption that the pursuit of rights through the ECtHR and the consequences of its judgments for the rights protection afforded to marginalised individuals and minorities are intrinsically connected to national legal context. Individual litigation against states in Strasbourg tends to arise in areas of activity characterized by nationally specific structural deficiencies, legal-judicial distortions, administrative or other kind of systematic shortcomings in human rights guarantees. Exhaustion of domestic remedies is a precondition before one can petition the ECtHR, therefore, individuals must first seek judicial protection before national courts. Following their conviction or non-vindication by national courts, such individuals resort to Strasbourg in pursuit of a remedy that they were unable to obtain at the national level. In view of the subsidiary nature of the Convention and the Strasbourg-based Court, the case studies in this volume emphasise the interaction between national-level legal judicial remedies and the role of the ECHR system in upholding, complementing, or extending the latter. In this regard, the significance of the Convention and the ECtHR judgments as such vary greatly across states. The country chapters included in this volume examine the national context of each country under study in reference to the domestic legal status of the ECHR, the national judicial institutions for rights review, as well as national academic approaches to the Convention and to rights protection in general. The national legal context shapes how the Convention enters into and potentially affects national systems of rights protection. States that become parties to the Convention have a legal obligation to make its provisions applicable in domestic law and to ensure the enjoyment of rights and freedoms enshrined in these.30 It is left up to states to select the means best-suited to this end, as long as domestic authorities can provide an ‘effective remedy’ under national law to an individual claiming that a violation of his/her rights under the ECHR.31 The means whereby states choose to grant direct effect to the Convention vary, therefore, so does its status in the hierarchy of internal legal

30

31

Article 1 of the ECHR stipulates that the contracting parties undertake to secure the rights and freedoms enshrined in it to individuals within their jurisdiction. J. Polakiewiz, ‘The application of the ECHR in domestic law’, Human Rights Law Journal 17 (1996), 405, at 405.

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norms. Some states grant it the status of ordinary law (e.g. Turkey, Germany), others supra-legislative status (that is, superiority over prior and subsequent legislation, such as Belgium and the Netherlands) and yet others, the status of constitutional law (Austria).32 By now, even though this is not strictly required, the vast majority of the contracting states have incorporated the Convention into national law (with the exception of Ireland and Norway), including all 10 central and east European states that have recently joined the EU as well as the associate candidate states of the EU. A related factor defining the relevance of the Convention and the ECtHR for the protection afforded to marginalised individuals and minorities in each country is the existence of an effective system of rights review of legislative and executive acts in relation to a higher set of constitutional norms. In states without domestic rights review systems, like Britain until 2000, the ECHR is likely to fill an essential void in this respect. Conversely, in countries with well-developed systems of rights review, like Germany, litigants, including those who are marginalised individuals and minorities, are more likely to seek redress through domestic courts. Even though the relationship between a highly developed national system of human rights review and conformity with ECHR and the Strasbourg Court judgments is generally positive, this relationship is not always a clear or direct one.33 While important, the incorporation of the Convention domestically is not in and of itself sufficient to guarantee its application by national courts. Equally, if not more important, is the willingness of domestic courts to consider the ECHR in defining the scope of rights, as well as to seek conformity with the evolving jurisprudence by the ECtHR. The extent to which national courts accept that the Convention creates rights that can be relied upon directly before them varies from state to state. For example, in Germany, where there is a well-established national bill of rights, national courts have preferred to rely upon the latter instead of invoking the ECHR. In contrast, in states where the Convention has constitutional status like Austria, national courts have extensively relied upon it. Equally, if not more important, is the extent to which national courts are willing to seek conformity with the way in which Convention principles are applied and interpreted in the jurisprudence of the ECtHR. Repeat litigation and adverse ECtHR judgments on behalf of particular

32

33

J. Polakiewiz and V. Jacob-Foltzer, ‘The ECHR in domestic law: The impact of Strasbourg case-law in states where direct effect is given to the Convention’, Human Rights Law Journal 12/4 (30 April 1991), 125. H. Keller, ‘Reception of the ECHR in Poland and Switzerland’, ZaoRV 65 (2005), 283, at 246.

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kinds of minority-related claims, for instance, is often a reflection of diverging and conflicting national judicial interpretations. Overall, and regardless of the way in which the Convention is incorporated in the domestic legal structure, the reliance of national courts upon the Convention and their conformity to Strasbourg Court interpretations is farreaching and has progressively increased over the past 20 years.34 Notably, Convention norms and the Strasbourg case-law have successfully managed over time to diffuse in the domestic sphere of the member states not only, or even primarily, in response to strict legal obligations. Instead, they gradually acquired a persuasive and authoritative character which national judges, legislators and other social and political actors are increasingly disinclined to contradict, even in a state like the UK where prior to 1998 the ECHR was not formally incorporated into national law. By the 1980s, many years before its formal incorporation in 2000, British courts had introduced the ECHR into national law ‘through the back door’ by presuming that parliament had intended to legislate in conformity and not in conflict with the Convention, without explicitly invoking the provisions of the latter.35 Another factor that the individual country chapters consider pertains to national academic scholarship and legal approaches to the Convention and to rights protection in general. National legal scholarship has been a central mechanism facilitating, or conversely restricting, reception of the Convention in domestic legal and political order. As it is emphasised in the context of a recent study, teaching about the ECHR and pursuing its study in scholarly work – particularly but not only in the discipline of law – promotes awareness about it and influences how lawyers and judges view it and engage with it in practice.36 Besides the ECHR, it has been noted that academic engagement with and legal approaches to human rights and their protection may provide, and has provided, important support to judges as protectors of marginalised groups and minorities. The emergence of a legal academia that advances the centrality of rights protection has been an important element supporting a progressive vision of the judicial role, as well as the emergence of a progressive wing among national judiciaries.37

34 35

36

37

Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, p. 25. R. Higgins, ‘The role of domestic courts in the enforcement of international human rights: The United Kingdom’, in Conforti and Francioni (eds.), Enforcing human rights in domestic courts, (Netherlands: Kluwer Law International, 1997) pp. 37–58, at 45–48. A. Stone Sweet and H. Keller, ‘Introduction: The reception of the ECHR in national legal orders’, in Keller and Stone Sweet (eds.) A Europe of rights: the impact of the ECHR on national legal systems (Oxford: Oxford University Press, 2008), pp. 11–36, at 33. Guarnieri, ‘Courts and marginalised groups’, p. 205.

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4. Litigation on Behalf of Marginalised Individuals and Minorities Notwithstanding the existence of extensive rights guarantees domestically, the ECHR and Strasbourg judgments have a significant subsidiary role in facilitating national rights protection in Europe. Effectively safeguarding human rights in practice is a continuous challenge in the context of pluralistic and multi-cultural societies and in light of new challenges that may prioritise state security imperatives. By interpreting Convention principles, the ECtHR reflects upon how to legitimately restrict and justly allocate such rights in the face of conflicting claims and new societal challenges. It reviews the scope of rights and permissible restrictions that governments can impose under certain circumstances. In doing so, it primarily reviews Convention conformity of domestic laws, administrative practices or judicial approaches that are not regarded problematic from a nationally-specific point of view regarding rights protection. Distinct national legal and political traditions may have rendered some state laws and practices less consonant with specific kinds of minorityrelated rights claims. Petitions submitted by marginalised individuals and minorities have rapidly increased since the mid-1990s. Linked to different national contexts and historically specific conflicts, minority-related litigation of individuals in Strasbourg originates from a variety of different groups across states. It tends to be more frequent from states where treatment and levels of protection accorded to various kinds of minorities (due to historical or other factors) diverges significantly from Convention provisions and their interpretation by the ECtHR. Cases reviewed by the Court pertain to minority education, the religious life and institutions of a minority community, conflicts between a traditional way of life and state policies, or various issues pertaining to minority participation in the cultural, religious, social, economic and public life.38 Individuals belonging to Roma communities brought petitions in Strasbourg originally against Britain, under Article 8, claiming violation of their right to lead a traditional way of life which was restricted by national authorities due to planning and environmental considerations. Over the past 10 years, however, cases on behalf of the Roma have greatly increased and diversified in the violations they seek to redress, originating from several countries such as Greece, Bulgaria, Romania, the Czech Republic and Croatia, among others. A great deal of cases brought to the Court on behalf of marginalised individuals and minorities can be seen to originate from some kind of ‘strategic

38

Hasan and Chaush v. Bulgaria (no. 30985/96), 26 October 2000; Kokkinakis v. Greece (no. 14307/88), 25 May 1993.

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litigation.’ This refers to instances in which individual or collective actors ‘use the court system to attempt to create broad social change.’39 While the individual litigant’s interest may be an objective too, legal action is taken with a focus on law and policy reform, with cases chosen and targeted for bringing to surface broader problems and issues. Besides seeking to challenge existing laws and policies considered detrimental to the rights of individuals and groups, strategic litigation can have less ambitious – but equally important – goals such as clarifying laws, promoting legal and human rights literacy, documenting injustices, changing public attitudes and empowering vulnerable groups.40 Litigation can also be strategic when it is pursued as one component of a broader mobilisation strategy with goals that go beyond individual remedy; namely, to exercise political pressure or to influence public opinion and discourse. A good number of minority-related cases are defended by public interest law firms and NGOs from various countries across Europe. Strategic litigation can take a variety of forms as it is shown in the countrybased case studies included in this volume. Petitions brought in Strasbourg may have a broader objective to challenge state laws and practices regarding political and civil rights of minorities, the ability of immigrants to stay in a country, or their treatment by the police, among others. In some cases, litigation by individuals from particular social groups is manifested in a string of cases, which, however, are not necessarily coordinated, neither are they selected strategically. This appears to be the case in Austrian, British, Greek and French petitions from foreigners, while cases originating from Kurds in Turkey have a more concerted character. Conversely, Jehovah Witnesses’ cases against Greece and Bulgaria are for the most part a component of a broader and well-orchestrated political campaign to promote their religious rights. Litigation in Strasbourg can also be employed as an explicit strategy by minority groups in pursuit of political ends, like it is, for instance, among ethnic minorities in Greece, or partly among Kurds in Turkey. Alternatively, litigation may involve small in number or single cases targeted by lawyers or public law firms for their importance and as a means of contesting an issue politically, sometimes in consultation with civil society organizations. In several cases that have been brought to its attention, the Court has dealt with conflicts pertaining to the political and civil rights of minorities. In

39

40

Strategic litigation of race discrimination in Europe: from principles to practice, published by European Roma Rights Centre, INTERIGHTS and Minority Policy Group (Nottingham: Russell Press Ltd., 2004), p. 35. Strategic litigation of race discrimination in Europe: from principles to practice, pp. 36–37.

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countries like Greece and Bulgaria, relevant litigation largely originates from individuals belonging to ethnic and religious minorities, while in Turkey overwhelmingly from the Kurdish population. A significant number of petitions concern registration and recognition of minorities and minority institutions, including political parties, claiming a breaching of rights under Articles 9, 10 and 11, alone or in conjunction with Article 14 ECHR. In these cases, state authorities dissolve, restrict or do not grant permission for the establishment of such association, invoking reasons of national security and territorial integrity.41 Linked to the promotion and protection of a minority’s identity are also restrictions imposed upon freedom of expression which is essential for a community’s ability to advance its views and positions. There are several such petitions by individuals from the Kurdish community in Turkey. Regarding the claims of marginalised individuals in Turkey, we also consider the few cases brought by persons whose public expression of religious faith is restricted, even though it is the faith of the Muslim majority. Despite the latter, for historical and political reasons specific to the Turkish context, these individuals have been excluded from the political process and public life. If claims raised by historical ethnic and religious minorities mainly originate from east and southeast European countries, cases pertaining to sexual minorities primarily originate from the UK, France and Austria. It concerns individuals whose rights are restricted or who are discriminated against because of their sexual identity, such as homosexuals and transgender persons. Differences in the kinds of claims and violations that arise across states have to do with specific historical conditions, distortions and structural problems characterizing distinct national settings. For instance, as late as 2000, the persecution of male homosexual conduct under 18 was a specifically Austrian problem in contravention to Article 8 ECHR, while restrictions on the rights of non-Orthodox religions have been a specifically Greek and more recently Bulgarian problem. Over the past 15 years the Strasbourg Court has also witnessed a growing number of petitions from ‘new’ immigrant minorities and asylum seekers. These have originated as much from older immigration countries such as Austria, France and the UK, as from south European countries that have relatively recently experienced a large immigration influx. The Convention does not contain any specifically immigrant rights, neither does it recognize any

41

For instance, such cases are ECtHR, Sidiropoulos v. Greece (no. 26695/96), 10 July 1998; ECtHR, Gorzelik and Others v. Poland (no. 44158/98); or ECtHR, Stankov and United Macedonian Organization ILINDEN v. Bulgaria (nos. 29221/95 and 29225/95), 2 October 2001.

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Chapter One

right to be granted asylum as such. Nevertheless, individuals from such groups have appealed to various Convention norms to redress a variety of problems and to seek protection from excesses in the exercise of state power. For instance, asylum seekers facing deplorable detention conditions claimed to have been subjected to inhumane or degrading treatment (Article 3 ECHR),42 to have been deprived of their liberty contrary to Article 5(1) ECHR,43 or to have their right to family life under Article 8 ECHR violated when a deportation order from a country where someone has established himself/herself is issued.44

5. The ECtHR Jurisprudence As a legal corpus of rights and freedoms, the Convention is comprised of highly abstract and general principles that do not necessarily provide a more advanced set of fundamental rights than what is already enshrined in national constitutions around Europe. In practice, they become signifi cant and potentially consequential for states and individuals through their elaboration in the Court’s case law. The Court elaborates on the application and meaning of Convention provisions on a case-by-case basis and does not engage with in abstracto review of national legislation and practices. In response to mounting complaints, the Court’s decisions and judgments began to scrutinise and potentially challenge state laws, policies and practices that are sensitive for national interests and security, pertaining to minorities and the treatment of immigrants and asylum seekers. In the context of an ‘effective political democracy’ some fundamental rights can legitimately be restricted (and are restricted) by state authorities. Such restrictions can be justified under certain conditions. Indeed, this is explicitly acknowledged and provided for in Articles 8–11 ECHR that have a common logic and structure, as well as a common goal in the context of democratic society as outlined above. The second paragraph in Articles 8–11 commonly provides that restrictions upon individual rights must be provided by law, they must be directed to a broader legitimate aim, such as national security or state integrity, public order or health, and they must be ‘necessary in a democratic society’ or made imperative by a ‘pressing social need.’ The need to delineate

42 43 44

See for instance ECtHR, Dougoz v. Greece (no. 40907/98), 6 March 2001. ECtHR, Amuur v. France (no. 19776/92), 25 June 1996. See for instance ECtHR, Beldjoudi v. France (no. 12083/86) 26 March 1992; and ECtHR, Nasri v. France (no. 19465/92) 13 July 1995.

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such balances is explicitly articulated in Articles 8–11 ECHR, with regard to which the ECtHR explicitly applies a proportionality test: Any imposed limitations must be ‘proportionate’ to the legitimate aim pursued. This proportionality test is characterized as ‘one of the most intrusive forms of judicial supervision known: it requires courts to stand in judgment of the policy choices of state officials’.45 Particularly prone to face rights restrictions, as allowed for by the second provision of Articles 8–11 ECHR, are individuals and groups who do not enjoy a dominant position in society. They may be individuals whose views are not accepted by the majority or who belong to various kinds of minorities.46 A great number of petitions reviewed by the ECtHR involve conflicts between the rights of individuals from such societal segments and the needs and priorities determined by states and majoritarian concerns. Through its case-law, the Court has sought to interpret the scope of individual rights and freedoms, and to demarcate and elaborate upon the conditions under which restrictions can be justified in the specific circumstances that arise in individual cases. Closest to a specifically minority-relevant right is Article 14 ECHR as it prohibits discrimination based, inter alia, on race, colour, language, national origin or association with a national minority. In proscribing discrimination, Article 14 reflects an attempt to respond to the traditional criticism that traditional liberal democracy in practice fails to ensure citizens’ equality through the protection of formal civil and political rights. Systematic asymmetries and structural inequalities of power and resources often exist on the basis of class, race, sex, ethnic background, etc., which prevent people from fully enjoying their rights as equal citizens.47 Its aim is to ensure that equal treatment is granted to groups and individuals who are in an analogous position and that no distinctions are made among them without reasonable justification.48 The weakness of Article 14 ECHR as legal ground stems from two aspects. First, as a non-discrimination clause it is an auxiliary rather than a free-standing right: A claim for discriminatory treatment must be invoked in conjunction with one of the Convention’s substantive provisions (including Articles 8, 9, 10 and 11).49 Even though the facts of a case may not show a violation of a

45 46 47 48

49

Stone Sweet and Keller, ‘Introduction: The reception of the ECHR in national legal orders’, p. 19. Marks, ‘The ECHR and its democratic society’, p. 215. Marks, ‘The ECHR and its democratic society’, p. 230. O.M. Arnardottir, Equality and non-discrimination under the ECHR (The Hague: Martinus Nijhoff Publishers, 2003), pp. 10–11. Protocol no. 12 to the ECHR adopted in November 2000 provides for the first time a right to non-discrimination separate from the other substantive articles, however, it has not yet been ratified by the minimum necessary number of member states that will enable it to enter into force.

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Chapter One

specific right in isolation, the violation may lie in the fact that the restriction imposed upon it was done so in a discriminatory fashion, undermining equality between citizens.50 The second shortcoming is that in its application of Article 14 ECHR, the Court does not recognize indirect discrimination. The latter may arise in conditions in which a law that equally applies to everyone may have a disproportionate (and adverse) impact on one part of a society.51 In recent and minority-related judgments, however, the Court departs from its previous approach to identify the occurrence of indirect discrimination, and to recognise it as a ground for state infringement of the Convention.52 The receptivity of the ECtHR to claims raised by marginalised individuals and minorities varies and it has changed over time. For instance, the Court has been particularly unreceptive to claims about a culturally distinct way of life, such as those raised by Roma individuals against the UK. In a series of cases, the ECtHR rejected claims about their right to station caravans under Article 8 ECHR which was refused by British authorities on various grounds.53 At the same time, disagreements between the Commission and the Court, as well as the extent of dissent among the judges in subsequent cases brought forth by Roma individuals54 is indicative of the fact that the nature and scope of culturally-specific rights claimed by individuals belonging to minorities is under ongoing controversy and elaboration. Over time, the Court has shown greater, if inconsistent, receptivity to Roma claims about infringements of their rights, including claims of discrimination.55 On the other hand, the ECtHR has been more receptive to claims about freedom of expression, association and political participation of minorities. Such rights are often weighed against state claims that minority actions threaten national security and territorial integrity. Depending on the context and circumstances, however, there are also cases in which the Court was not

50

51 52 53 54

55

J.G. Merills and A.H. Robertson, Human Rights in Europe – A study of the ECHR (Manchester: Manchester University Press, 4th Edition, 2001), p. 199. Gilbert, ‘The Burgeoning minority rights jurisprudence of the ECtHR’, 747. ECtHR, D.H. v. Czech Republic (no. 57325/00), 13 November 2007. ECtHR, Buckley v. UK (no. 20348/92), 25 September 1996. For instance, in the cases of Chapman v. UK, Coster v. UK, Beard v. UK, Lee v. UK, and Jane Smith v. UK, the Court rejected claims about their right (under Article 8 ECHR) to station caravans in land that they bought, which was refused by British authorities on grounds that the stationing of caravans was not in conformity with planning regulations. Yet, notably the Grand Chamber judgments on these cases were narrowly decided by ten votes to seven. See Thornberry and Martin Estebanez, Minority rights in Europe, pp. 70–71. See K. Henrard, ‘The ECHR and the protection of Roma as a controversial case of cultural diversity’, European Diversity and Autonomy Papers EDAP 5, 2000, available at: http://aei .pitt.edu/6162/01/2004_edap05.pdf.

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convinced by litigants, or appeared to accord too much discretion to national authorities.56 While many detected violations of the Convention are minor, unintentional and require few changes from the offending state, not infrequently, Court interpretations may fundamentally challenge entrenched national laws and practices.57 With regard to immigrants and asylum seekers, the Court has taken a highly cautious and restrictive approach, occasionally making an expansive breakthrough in a legal norm followed by narrow delimiting of its application. For instance, this was the case with regard to the non-refoulement principle of not returning a person to his/her country of origin, where s/he is likely to face ill-treatment. Acting contrary to it has been interpreted to infringe upon Article 3 ECHR. The Court took this step despite the fact that in strictly contractual terms this could be seen to be outside its jurisdiction as the state where ill-treatment would occur was not a party to the Convention.58 At the same time, it carefully set the standard of proof very high, shying away from recognising any kind of a right to asylum and upholding state prerogatives to decide about the entry and stay of non-nationals. Notwithstanding its cautious and incremental approach, the Court has highlighted the importance of speedy review of asylum-seeking applications, as well as of the existence of an effective and accessible procedure to review such requests.59 At the same time, its more firm recognition of the right of immigrants to family life by the ECtHR is seen to stem from the fact that such rights had already been applied by domestic courts vis-a-vis aliens.60 Overall, in the past 15 to 20 years, the ECtHR has become increasingly receptive to claims from marginalised individuals and minorities, in spite of the fact that minority-related or immigrants’ rights as such are not contained in the Convention.61 Experts on the subject recognise that the ECtHR has been

56

57

58 59 60 61

For instance, consider the Court’s acceptance of the applicants’ claim to form a Macedonian cultural association in the case of Sidiropoulos v. Greece, on the one hand, but its refusal to vindicate similar claims in the case of Gorzelik v. Poland. In the latter, the Court accepted the refusal of Polish authorities to register ‘The Union of People of Silesian Nationality’, pointing out to the need for concessions by individuals and minorities ‘so as to ensure the greater stability of the country as a whole.’ L.R. Helfer and A.-M. Slaughter, ‘Toward a theory of effective supranational adjudication’, The Yale Law Journal 107/2 (November 1997), 273, at 329. Harvey and Livingstone, ‘Protecting the marginalised’, 385. Harvey and Livingstone, ‘Protecting the marginalised’, 458. Joppke and Marzal, ‘Courts, the new constitutionalism and immigrant rights’, 837. P. Thornberry and M.A. Martin Estebanez, ‘The ECHR and ‘ethnic’ questions’. in Thornberry and Martin Estebanez (eds.), Minority rights in Europe (Strasbourg: Council of Europe Publishing, 2004), p. 68.

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‘…in the process of sharpening its sensitivity to ‘ethnic issues,’ particularly since the 1990s when the politics of minority recognition and the geopolitical changes in Europe have pressed on it.62 It can be argued that through its jurisprudence, the ECtHR has pushed states to supply more compelling and evidence-based justification in curtailing rights pertaining to individuals and minorities. Regarding immigrants and asylum seekers, it is argued that with all its limitations the Court has been prepared to ‘bring both groups within its regime of rights protection.’63

6. Overview of the Volume This volume examines the diverse social-legal and institutional context that define litigation in, and jurisprudence of, the Strasbourg Court in relation to marginalised individuals and minority-related rights claims across eight countries. Each country chapter provides an overview of litigation actors and patterns under the selected rights claims, as well as of the consequences of ECtHR jurisprudence for rights protection in the selected domains. All together, they suggest a more contextual approach to understanding the domestic impact of the ECtHR. Besides legal structures and hierarchies, it also includes national judicial approach and practice, as well as academic and political views on the Convention and the Court’s case law. By providing a selective overview of nationally-based literature on the Convention and the ECtHR, this collection can also serve as a source book for those interested in the topics of Strasbourg Court litigation, jurisprudence and its impact in the countries that are covered. Against its respective national context, each country chapter explores litigation on behalf of marginalised individuals and minorities, as well as the relevance and role of the ECHR and the Court’s jurisprudence for the latter. The Austrian chapter highlights the great significance attributed to the Convention as reflected in the constitutional status that it enjoys which, nevertheless, has not in and of itself been consequential for its receptivity by Austrian authorities. Particular features that have to do with the historical origins and contemporary training of judges have undermined its influence in domestic judicial approaches to rights protection. They have led to a certain ambivalence or rejection of the ECHR as something ‘external’ and foreign, therefore subordinate to national perspectives and rights guarantees. Nonetheless, the Convention and the ECtHR judgments have come to be salient in a number of

62 63

Thornberry and Martin Estebanez, ‘The ECHR and ‘ethnic’ questions’, p. 68. Harvey and Livingstone, ‘Protecting the marginalised’, 464.

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areas that have to do with specific Austrian conditions and historical reasons such as freedom of expression in relation to extreme right wing views and state broadcasting monopoly. The large numbers of marginalised individuals and minorities from Austria who have taken recourse in the Strasbourg Court is attributed to prevailing political and social attitudes towards minorities as reflected in surveys. It is also linked to increasing activism among NGOs representing immigrants. Strasbourg Court cases brought by individuals belonging to marginalised groups in Austria cluster around three major issues: The situation and rights of aliens and asylum seekers; the legal and factual problems faced by homosexuals; and, finally, religious minorities. Immigrant cases concern residence prohibitions, access of third country nationals and nationals from the new EU members of central and east Europe to the labour market, political asylum, and access of foreigners to social benefits such as emergency assistance. The Court has been receptive to the claims of immigrants in a large number of these cases, even though for the most part Austrian authorities have responded to the judgments on a case-by-case basis. Homosexuals complaining about different age of consent for male homosexuals who are minors have been vindicated by the Court. Also vindicated are Jehovah Witnesses seeking custody, and recognition as a religious community. In Bulgaria in the 1990s, the Convention and its monitoring mechanisms served to fill in a large gap in promoting basic rights after the transition to democracy, due to the lack of domestic tradition and effective institutions during the communist period. As the domestic judicial system was not up to the task of providing protection, the ECtHR turned out to be the ultimate guarantor of human rights. The post-1990 period of the country’s democratisation allowed majority prejudices and hostilities toward marginalised groups to be voiced through the political process. The large number of judgments against Bulgaria, including cases concerning marginalised individuals and minorities, is also attributed to the increasing use of national courts and the ECtHR, by individuals but also NGOs to address broader policy issues. Cases concerning marginalised individuals and minorities against Bulgaria concern state interference in the religious affairs of marginalised groups, racially-motivated violence against the Roma, prohibition of minority political parties, refusals to register a party or an organisation, restrictions on public gatherings and rallies and one case raising gender issues. The judgments of the ECtHR on Bulgarian cases have arguably enhanced the protection of basic rights of vulnerable groups. In a large number of cases where the national justice system has either contributed to the violation of basic rights or failed to remedy the violations, the ECtHR has provided a remedy. From a broader perspective, the jurisprudence of the ECtHR has had a

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notable impact on the Bulgarian legal system, and, more broadly, on Bulgarian legal culture. At the same time, although Bulgarian courts increasingly rely on the ECHR in their jurisprudence, the introduction of European human rights law into domestic law has been slow and difficult. This has been particularly true in the field of politically sensitive issues, such as those regarding minorities, in which courts traditionally have been more deferential to executive decisions. In interpreting political rights and the right to association in a particular case, Bulgaria’s Constitutional Court developed what could be called a ‘militant democracy’ attitude. It exaggerated the danger presented by a specific political organisation and its activities, such as public meetings and demonstrations – the OMO Ilinden organisation. The Italian chapter shows a notable evolution in the significance of the ECHR and ECtHR judgments in the domestic legal and political order over the past 10 years, including in rights claims pertaining to marginalised individuals and minorities. The original role of the country’s Constitutional Court was to avoid conflicts between ordinary legislation and the constitution, and it only indirectly included the protection of individual rights. The development of national human rights review is mainly linked to the Convention and the jurisprudence of the ECtHR. Even though since its ratification, the ECHR only holds the status of ordinary law, over time it has evolved to gain a certain primacy over the latter. Nonetheless, appeal to the Convention in domestic courts remains infrequent, apart from cases regarding Article 6 ECHR. This is in part due to a dominant perspective among the legal community that considers domestic rights guarantees to be more advanced, as well as a general lack of interest among Italian political elites in it. The notable absence of women and minorities shows how marginal the impact of the ECHR has been in building a pluralistic culture in the Italian system and in dealing with the problems of vulnerable groups. Since 2000, however, increasing academic and scholarly interest in the ECHR and the Strasbourg Court, legislative changes, and the presence of NGOs willing to take recourse to it on behalf of immigrants and asylum seekers, signals an important shift. A couple of recent and high-profiled immigrant and mass expulsion cases represent a starting point for a new perception of the ECHR’s instruments in Italian legal culture. For the first time, claims were not simply lodged as a further stage of proceedings or in order to obtain individual monetary compensation. Instead, they were submitted as a step within a broader mobilisation for changing legislation and practices on matters where the Italian legal and political system fails to fully address rights protection. While the impact of these two judgments on Italian policy towards immigration is still weak, for the first time, Italy has been ordered to comply with ECtHR jurisprudence regarding immigrants.

The Strasbourg Court, Democracy and the Protection

23

In Turkey, the role of the Convention and the ECtHR is closely linked to the country’s process of accession in the EU and the fulfilment of the Copenhagen criteria in which human rights reform figures prominently. Despite a series of amendments in 2001, the Turkish constitution continues to privilege state interests over the fundamental rights of individuals and, therefore, to come into conflict with basic principles of the Convention and the ECtHR jurisprudence. The large number of petitions from marginalised individuals and minorities against Turkey in the ECtHR is largely linked to the Kurdish issue. The lack of national remedies under the state of emergency that had imposed in the northeast part of the country and the activism of Kurdish lawyers in the 1990s led to scores of cases and condemnations against Turkey. Judgments vis-à-vis Turkey also concern the dissolution of political parties, the prosecution of individuals advocating a democratic solution to the Kurdish question, the restrictions on Muslims religious freedom in public life due to the principle of secularism, but also the rights of non-Muslims. The ECtHR case law has played an indispensable role in bringing to light the egregious human rights situation in Turkey in late 1980s and early 1990s. The Court’s fact findings on disappearances, unlawful killings, arbitrary detentions, torture and destruction of property committed by members of the security forces shed light to an administrative policy of systematic violations. It also exposed the impunity of perpetrators and the unavailability of domestic legal remedies for victims, but also the absence of an impartial and neutral judiciary to uphold rule of law and human rights in Turkey. In the early years of litigation originating from Turkey, the Court’s judgments critically analyzed the legal and political situation in Turkey, and provided an invaluable resource for other international actors in monitoring the country’s compliance with human rights standards. At the same time, by endorsing the stance of Turkish authorities and granting them a large margin of appreciation in cases like Refah and Şahin,64 the ECtHR has lost considerable legitimacy as an external guarantor in the eyes of Turkish marginalised individuals and minorities. In France, the ECHR has supremacy over statutory law and any court is entitled to apply it even contra legem. Judicial attitudes have changed over time and evolved from national resistance to ‘constructive interpretation’ and the development of a preventive approach by national judicial authorities at least in specific areas. The Court’s decisions and judgments have become in these cases a source of direct guidance, preventing new violations, for instance in

64

Refah Partisi and Others v. Turkey (no. 41340/98), 31 July 2001; Leyla Sahin v. Turkey (no. 44774/98), 11 November 2005.

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relation to the recognition of welfare rights of foreigners. Individuals from marginalised groups and minorities have appealed to Strasbourg over issues concerning protection of foreigners and the growing concerns stemming from the adoption of new legislation to ensure national security and fight against terrorism. Individuals from religious minorities raise claims strongly conditioned by the French Republic’s founding principles of secularism (laïcité), while transgender individuals claim discrimination based on their gender or sexual orientation. Recourse to legal tactics and judicial complaints in pursuit of political change, which is well-known in common law countries, is unfamiliar to French legal culture. Yet over the past 10 years, one witnesses growing mobilisation in this regard in the field of immigrant rights and the rights of sexual minorities. Although domestic mechanisms to protect human rights are deeply rooted in the French legal system, the constitutional conception of equality enshrined in the indivisibility principle of the Republic makes it very hard for vulnerable groups and minorities to be recognised as such. In their search for an established identity, religious minorities, homosexual or transgender lobbies have found the Strasbourg Court an instance of paramount importance. While in many other jurisdictions rights enjoy a constitutionally protected status, permitting judicial review of the constitutionality of legislation, this has not historically been the case in the UK. Given the non-incorporation of the ECHR, individuals could not be successful in introducing arguments based on a violation of one of its rights before domestic courts. Combined with a strong rights culture, as the chapter on the UK shows, this left individuals, including those from marginalised groups and minorities, with little options besides taking their case to Strasbourg. With the passage by parliament of the Human Rights Act 1998 (HRA), a new era has begun as a distinct rights culture has come to pervade UK law, society and political life, and the government has realised its ambitious project to ‘bring rights home.’ More specifically, it denotes the incorporation of parts of the ECHR into internal UK law in order to produce a national Bill of Rights. This development has revitalised an already strong domestic culture of asserting civil liberties. While the doctrine of parliamentary sovereignty remains supreme, the introduction of the HRA has furthermore contributed to shifting the balance of power between legislative and the judiciary in favour of the latter. Overall, the ECtHR has been more favourable towards particular kinds of rights claims. For instance, a general trend for greater sympathy in the ECtHR is evidenced in the area of cases involving sexuality or transsexuals with more cases resulting in a violation, and a greater tendency for cases to be decided by unanimity rather than majority voting. The response of the UK government to

The Strasbourg Court, Democracy and the Protection

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adverse judgments has, overwhelmingly, been to accept them, and over time to make consequential changes to domestic law and practice where appropriate. It is widely acknowledged that detainees, criminal suspects, prisoners, the mentally ill, homosexuals, schoolchildren, journalists and many others in the UK can trace the strengthening or clarification of their rights and protections to decisions of the Commission and Court. The German chapter discusses the complex and multifaceted, even if at time controversial, ways in which the Convention and the ECtHR jurisprudence enter into and influence the domestic legal and political order. German authorities – lawmakers, courts and the administration – have to abide with the ECHR in light of the jurisprudence of the ECtHR, as long as the judgments of the ECtHR do not contradict the Basic Law unjustifiably. Notwithstanding the robust system of domestic rights protection, a number of cases have challenged in Strasbourg the decisions of national courts, including in one case a decision by the constitutional court. Many cases from Germany taken to the ECtHR concern rights claims by marginalised individuals and minorities, and the extent of domestic protection afforded to them. Most of these, however, are considered inadmissible, particularly those brought by asylum seekers who try to avert their expulsion after a negative result of their motion. Even though the ECHR does not provide for a right to political asylum, the interpretation of Article 3 ECHR in combination with the national residence law can lead to a legal ban of an expulsion or even to a decision to grant a legal residence permit. The rulings of the Strasbourg organs can be deemed as surprisingly uncritical and as a result had almost no effect on the asylum procedures in Germany. Nonetheless, the interpretation of Article 3 ECHR in a way that engages the responsibility of the extraditing state has promoted a less rigid administrative practice. It has prompted national authorities to give greater consideration to the specific circumstances surrounding an expulsion order, and to become more flexible in granting legal residence permits. Besides immigration and political asylum cases, case law against Germany has often tended to fill in sporadic and relatively secondary (but not unimportant) gaps in domestic rights protection rather than to redress systemic problems. In Greece, with the transition to democracy in 1974, the Convention was incorporated anew in the domestic legal order after its denouncement during the military regime that had ruled the country during the previous seven years. Initially, Greek courts disregarded the Convention and demonstrated judicial restraint even towards the review of the constitutionality of domestic provisions, so as ‘to limit their judgments’ adverse effects on the state.’ Progressively, however, national judges started to become more acquainted

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with the ECHR. A significant factor accounting for this has been the acceptance in the mid-80s of the right to individual petition that paved the way for a growing number of petitions in the Strasbourg Court, including from marginalised individuals and minorities. The abundance of petitions stemming from applications by foreigners and members of religious and ethnic minority communities reveals that legal action in Strasbourg is generally perceived as an effective means to counteract state resistance towards particular types of claims. On several occasions, legal mobilisation has formed part of a broader strategy devised with a view to pursuing specific community interests. In several cases brought by members of religious and ethnic minorities, breach of the Convention stemmed from erroneous interpretation of domestic legislation by national courts. Over the past 10 years, the absence of domestic case law regarding the ban on proselytism and the establishment of non-Orthodox places of worship arguably manifests a change in judicial approach that is in line with the Convention.

Chapter Two Protecting Individuals from Vulnerable Groups and Minorities in the ECtHR: Litigation and Jurisprudence in Austria Kerstin Buchinger, Barbara Liegl and Astrid Steinkellner 1. Introduction After regaining its full sovereignty by the State Treaty of Vienna in 1955, Austria joined the Council of Europe (CoE) as its fifteenth Member State on 16 April 1956. Its membership in the CoE was a great opportunity for Austria to actively participate in a process that would later lead to the political unification of Europe. This was not considered in conflict with Austria’s perpetual neutrality, as the latter applied only to military actions. By its efforts to contribute to and co-operate in the framework of the Council of Europe, Austria was able to lay the foundation for its further European integration. The fact that Austria was the first state to fully incorporate the European Convention on Human Rights (ECHR, the Convention) into its constitutional legal order created a high level of awareness within Austrian society concerning the Convention itself, as well as its legal and practical implications. Domestic courts and administrative authorities have so far dealt with nearly every right or freedom contained in the ECHR. Naturally, the Constitutional Court plays a central role in this respect, as it has an impact on both, domestic legislation and jurisdiction. However, the Convention’s special status neither implies direct applicability of the rulings of the European Court of Human Rights (ECtHR, the Court) within domestic law, nor does it mean that the decisions or laws infringing the Convention can be abolished solely on the basis of the Court’s judgments. In such cases the Austrian legislator has to annul or amend the respective provisions. Yet, the government and the parliament have sometimes demonstrated reluctance to fully observe and fulfil the human rights obligations specified in the Convention.

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In Austria, human rights are often seen to predominantly protect the rights of minorities and marginalised groups in society. The following chapter tries to identify those minorities and vulnerable groups that tend to seek support from the ECtHR when their human rights have been violated. We will analyse why members of the identified groups take their cases to Strasbourg and why individuals belonging to other deprived groups do not turn to the ECtHR. We will also examine the factors conducive to taking legal action in Strasbourg and whether the judgments delivered by the ECtHR enhance the rights of minorities and other marginalised groups. We will start by providing a short historical overview, in order to demonstrate the significance that is attributed to the Convention in the Austrian national context. This will also provide a succinct description of domestic judicial approaches and attitudes vis-à-vis the ECHR, as well as of the pertinent scholarly debate. The following analysis on ECtHR litigation under Articles 8 to 11 and 14 ECHR has a special focus on minority and immigration issues. Thereby we will show on behalf of which marginalised groups the individual applicants seek redress in Strasbourg. Moreover, the question why some potentially vulnerable groups are more likely to vindicate their rights before the Court than others will be addressed. This analysis will make references to the political debate and the public attitude regarding certain issues such as asylum and immigration. In section four the main areas of Austrian legislation and legal practice that have been influenced by the Convention and the case law of the Strasbourg institutions over the past two decades shall be discussed in the light of the central issues at stake. We will conclude by providing an answer to the question on whether and to what extent the Court’s jurisprudence exerts an impact on the protection of the rights of marginalised individuals and minorities.

2. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship Prior to the Convention’s ratification by Austria, fundamental rights and freedoms were guaranteed by the Basic Law of 1867 on the General Rights of Nationals1 (Basic Law 1867). Being a law of the Austrian-Hungarian Monarchy, the latter was incorporated into the constitutional legal order of the new democratic Republic of Austria in 1920. This law – a minimum consensus of

1

Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger 1867, Law Gazette of the Austrian empire [Reichsgesetzblatt], No. 142/1867 (RGBl. Nr. 142/1867).

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fundamental rights and freedoms – is after various amendments still in force and contains a core of civil and political rights. However, as its title implies, it is restricted to Austrian nationals. Between 1933 and 1945, the Austrian constitutional system was suspended by authoritarian regimes. In 1945, after the collapse of the Third Reich, the Austrian Constitution and with it the Basic Law 1867 was put into force again. After becoming a member of the CoE, Austria signed the Convention on 13 December 1957 and ratified it – together with its first Additional Protocol of 1952 – on 3 September 1958. Concurrently, Austria accepted the competence of the European Commission of Human Rights (the Commission) and the European Court of Human Rights to deal with individual complaints. Following its ratification, the Convention was officially published in the Austrian Federal Law Gazette without further explanation on its legal status. Only in 1964, an amendment to the Austrian Constitution clarified the status of the ECHR as being fully equivalent to the original catalogue of fundamental rights, i.e. the Basic Law 1867. Since then, the ECHR has had the rank of directly applicable federal constitutional law, and any offences under the Convention can be claimed as violations of constitutionally guaranteed rights.2 As a result, all legislative, executive and judicial authorities are obliged to observe and implement the Convention within their sphere of action. Thus, the Austrian legislator has to respect the ECHR guarantees when enacting laws, and all courts and administrative authorities have to apply and interpret domestic legal provisions in line with the Convention. The Constitutional Court in particular has the responsibility to ensure compliance with the rights stipulated in the Convention and the authority to review decisions of administrative authorities,3 as well as to abolish domestic laws that infringe constitutional rights. Both, the lack of an ‘original’ domestic, modern human rights catalogue,4 as well as the constitutional status of the Convention explain the great significance attributed to the ECHR in the Austrian context. The Constitutional Court’s initially reserved attitude towards the Convention – caused by the hypothetical ‘parallelism’ of domestic fundamental rights and freedoms to the rights stipulated in the Convention – has changed over the years and the growing influence of Strasbourg jurisprudence has become more and more 2

3

4

Austria has also ratified all the Protocols of the Convention, except Protocol no. 12 which contains an equality–principle applying irrespective of the possible application of other ECHR provisions. By contrast, it is a matter of the Austrian Supreme Court [Oberster Gerichtshof ] to review decisions of judicial authorities. As opposed to the ‘dinosaur’ of fundamental rights and freedoms, the Basic Law of 1867.

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evident in its legal practice. In fact, the Constitutional Court, and in recent years the Supreme Court as well, are increasingly referring to ECtHR jurisprudence in many of their judgments. Also, it has become common practice to examine whether the application of Convention rights or that of domestic legal provisions is more beneficial for the person affected in a given case.5 Since national laws, including those at a sub-constitutional level, are sometimes formulated in great detail and thus specify the guarantees contained in the Convention, the Austrian judicial authorities have not always been attaching the necessary importance to the ECHR and the interpretations of the Strasbourg Court. Amongst other factors this might have contributed to the formation of the perception that the Convention – notwithstanding its constitutional status – is considered an ‘external’ rather than a domestic human rights regime by the legal community. Though progress has been made towards a shift of opinion, some rejection of the presumed ‘outside influence’ of the ECHR and the Court on national jurisdiction still remains.6 It has to be taken into account that the Austrian judiciary training system only recently introduced compulsory fundamental rights training for the republic’s prospective judges. Therefore, a certain lack of understanding concerning substantial human rights questions seems to have remained among judges who have been in service for a long time. It is therefore very much up to the younger generations of judges to develop an ‘inclusive’ rights approach in their daily practice, to ensure that human rights compliance starts at the lowest instance. There are no recent socio-political studies or surveys on judges’ political attitudes, but historians have analysed the Austrian judiciary branch. Botz7 sees Austrian judges as traditionally and predominantly attached to the Großdeutsche Volkspartei, a party active between 1920 and 1945 supporting Austria’s accession to the German Reich with national-socialist inclination,8 or to conservative Catholicism throughout the first republic (1918-1938). In 5 6

7

8

I.e. the so-called ‘principle of favourability’ [Günstigkeitsprinzip]. Information provided by a Member of the Austrian Ombudsman Board, the Green Party and former Chairperson of the Committee on Human Rights in the Austrian Parliament on 26 September 2007 and by an Austrian Supreme Court Member on 16 April 2008. See G. Botz, ‘Zum Verhältnis von Politik und Rechtswesen in der Ersten Republik’, in Weinzierl and Stadler (eds.), Justiz und Zeitgeschichte, Symposionsbeiträge 1976–1993, 24 vols. (Wien/Salzburg: Ludwig Boltzmann-Institut für Geschichte der Gesellschaftswissenschaften, Geyer-Edition, 1977), vol. I, pp. 99–112. After 1945 its members aligned with members of the former National Socialist German Workers’ Party [NSDAP] in different groups, among which was the forerunner of the Austrian Freedom Party.

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1945-46 about forty percent of the representatives of the judicial system were removed due to their political affiliation during the Nazi-regime. However, due to staff shortages these suspensions were lifted rather soon and only very few proceedings against leading representatives of the National Socialist judiciary were instigated.9 Quite instructive with regard to domestic judicial attitudes are judgments in cases involving statements promoting racist agitation. Many of them relate to the Prohibition Statute [Verbotsgesetz],10 which strictly forbids racist actions and incitements within the context of (neo-)Nazi ideology. However, when representatives of the right wing populist Austrian Freedom Party11 are criticised by the media for statements, activities or offences relating to National Socialism, they regularly take journalists to court claiming insults. In many cases the journalists have been convicted of defamation by national courts, a lot of which the ECtHR found to be in violation of Article 10 ECHR.12 At the beginning of the twenty-first century the Austrian judiciary is still a rather homogenous body, representing people of very similar social, cultural and ethnic origins. Although judges adopt a ‘neutral’ position from the legal point of view, they cannot totally free themselves of stereotypes and prejudices present in society.13 The ECHR and the Court’s jurisprudence have served to attract the interest of academic scholarship ever since its ratification. Predominantly, domestic scholars reacted to judgments, including those of domestic courts, and discussed the issues contained therein; only a few actively initiated a debate without preceding (court) cases. The first attempt to comprehensively examine the ECHR and its influence on the Austrian legal practice dates back to the 1980s.14 The relationship between the Convention and its domestic reception has

9

10 11

12 13 14

See O. Rathkolb, ‘Anmerkungen zur Entnazifizierungdebatte über Richter und Staatsanwälte in Wien 1945/46 vor dem Hintergrund politischer Obsessionen und Pressionen während des Nationalsozialismus’, in Weinzierl and Stadler (eds.), Justiz und Zeitgeschichte, Symposionsbeiträge 1976–1993, 24 vols. (Wien/Salzburg: Ludwig Boltzmann-Institut für Geschichte der Gesellschaftswissenschaften, Geyer-Edition, 1986), vol. XVI, pp. 157–209. National Law Gazette [Staatsgesetzblatt], no. 13/1945 (StGBl. Nr. 13/1945). A. Pelinka, ‘Die FPÖ in der vergleichenden Parteienforschung: Zur typologischen Einordnung der Freiheitlichen Partei Österreichs’, Österreichische Zeitschrift für Politikwissenschaft 3 (2002), 281. See further below in this section. See D. Schindlauer, ‘Die Justiz und das Fremde’, Juridikum 4 (2002), 179. F. Ermacora, M. Nowak and H. Tretter, Die Europäische Menschenrechtskonvention in der Rechtsprechung der österreichischen Höchstgerichte (Wien: Braumüller, 1983).

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continuously occupied Austrian scholars.15 Since Austria has joined the European Union, studies on the relationship between the ECtHR and the Union’s human rights protection system have continuously accumulated. Apart from numerous contributions that address the issue of human rights protection within the framework of the ECHR generally, legal science has also focused on selected rights of the Convention. Quite a few pertain to the factors supportive of a pluralistic society, such as the protection of minorities and ethnic groups,16 the freedom of the media,17 the freedom of association, arts or of religious beliefs as well as non-discrimination in general.18 In exploring the topic, academic scholarship played a remarkable role in the development and definition of the ‘concept of equality before the law’. This emerged in the context of gender-related unequal treatment as protected by Article 14 ECHR and also explicitly implemented by a provision of the Austrian Federal Constitutional Law.19 According to this principle, legislative and executive 15

16

17 18

19

See for example M. Nowak, Europarat und Menschenrechte, Dokumentation eines Seminars im Schloß Laudon gemeinsam mit dem Ludwig-Boltzmann-Institut für Menschenrechte vom 4. - 6. Oktober 1993 anläßlich des Gipfeltreffens des Europarates in Wien vom 8. - 9. Oktober 1993 (Wien: Orac, 1994); H. Tretter, ‘Austria’, in Blackburn (ed.), Fundamental Rights in Europe, The European Convention on Human Rights and its Member States 1950–2000, (Oxford: Oxford University Press, 2001), pp. 103–165; C. Grabenwarter, ‘Die EMRK aus österreichischer Sicht’, in Thürer (ed.), EMRK: Neuere Entwicklungen (Zürich/Basel/Genf: Schulthess Juristische Medien, 2005), pp. 79–120; W. Karl, ‘Menschenrechte in Europa: Die Europäische Menschenrechtskonvention, ihr Verfahren und ihr Einfluss auf das österreichische Recht’, in Schuhmacher (ed.), Perspektiven des europäischen Rechts, (Wien: Orac, 1994), pp. 281–304. See G. Holzinger, ‘Die Rechte der Volksgruppen in der Rechtsprechung des Verfassungsgerichtshofes’, in Funk (ed.), Der Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich (Wien: Verlag Österreich, 2002), pp. 193 ff.; D. Kolonovits, Minderheitenschulrecht im Burgenland (Wien: Manz, 1995); D. Kolonovits, Sprachenrecht in Österreich (Wien: Manz, 1999); T. Öhlinger, ‘Der Verfassungsschutz ethnischer Gruppen in Österreich’, in Schäffer (ed.), Staat-Verfassung-Verwaltung, Festschrift für Friedrich Koja (Wien: Springer, 1998), pp. 371 ff.; F. Sturm, ‘Der Minderheiten- und Volksgruppenschutz’, in Machacek, Pahr and Stadler (eds.), Grund- und Menschenrechte in Österreich, 3 vols. (Kehl am Rhein/Straßburg/Arlington: Engel, 1992), vol. II, pp. 77 ff.; H. Tretter, ‘Zur Transformation des Europäischen Rahmenübereinkommens zum Schutz nationaler Minderheiten in das österreichische Recht’, in Österreichisches Volksgruppenzentrum (ed.), Volksgruppenreport 1997 (Wien: Österreichisches Volksgruppenzentrum, 1997), pp. 214 ff.; H. Tretter, ‘Der Artikel 8 EMRK als Grundlage eines individuellen Rechts auf zweisprachige Ortstafeln?’, in Anderwald, Filzmaier and Hren (eds.), Kärtner Jahrbuch für Politik 2005 (Klagenfurt: Kärntner Druck- und Verlagsgesellschaft, 2005), pp. 265–275. See below. See for example the contributions in the three volume edition of R. Machacek, W. Pahr and G. Stadler (eds.), Grund- und Menschenrechte in Österreich, vols. I–III. Article 7 paragraph 1 of the Austrian Federal Constitutional Law, Federal Law Gazette No. 1/1930 as amended by Federal Law Gazette No. 100/2003 (BGBl. Nr. 1/1930 zuletzt geändert durch BGBl. I Nr. 100/2003).

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authorities (in the broader sense) are obliged to handle comparable matters equally and objectively, and different matters in different ways. Consequently, any unequal treatment determined by the law requires substantial, objective reasoning. The Constitutional Court adopted the theory for reasoning in connection with unequal treatment of women and men and took into account the jurisprudence of the ECtHR. It established that only ‘exceptionally crucial’ factors justify a different treatment in gender cases. Thus, in 1998, a new paragraph was added to the relevant constitutional provision allowing the Austrian legislator to enact regulations that serve to generate a de facto equal position for women compared to men. The situation of ‘absolute’ equal conditions turned out to cause new problems of gender-discrimination as specific circumstances, such as the working environment, actually demand a gender-specific treatment to allow for the realisation of equal opportunities for both sexes. Literature has covered the topic comprehensively and has in particular dealt with a new constitutional act on retirement in 1992, which provided for the gradual harmonisation of the pension age of men and women in Austria.20 The discourse on the parameters defining equality, or non-discriminatory treatment respectively, appeared to be highly conducive to the improvement of the situation and rights protection of those belonging to vulnerable groups at large.21 In particular, scholarly attention therefore focused on discrimination on grounds of ethnicity and race.22 The pertinent domestic provisions created a situation where certain rights and privileges were reserved to Austrian nationals

20

21

22

This was based upon a Constitutional Court judgment according to which the privilege of women reaching retirement age much earlier than men was considered unconstitutional as it lacked an objective justification and was not necessary to create gender-equality. See A. Sporrer, ‘Die Gleichheit von Frauen und Männern in Österreich’, in Machacek, Pahr and Stadler (eds.), vol. III, pp. 901 ff.; See also S. Rosenkranz, Das Bundes-Gleichbehandlungsgesetz (Wien: LexisNexis ARD ORAC, 1997). Cf. S. Bernegger, ‘Der (allgemeine) Gleichheitsgrundsatz (Art 7 B-VG, Art 2 StGG) und das Diskriminierungsverbot gemäß Art 14 EMRK’, in Machacek, Pahr and Stadler (eds.), vol. III, p. 709; W. Berka, ‘Art 7 B-VG’, in Rill and Schäffer (eds.), Kommentar zum Bundesverfassungsrecht (Wien: Springer, 2006); M. Holoubek, ‘Die Sachlichkeitsprüfung des allgemeinen Gleichheitsgrundsatzes’, ÖZW (1991), 72 ff.; K. Korinek, ‘Gedanken zur Bindung des Gesetzgebers an den Gleichheitssatz nach der Judikatur des Verfassungsgerichtshofes’, in Schäffer (ed.), Im Dienst an Staat und Recht, Festschrift Melichar (Wien: Manz, 1983), pp. 39 ff.; A. Somek, Rationalität und Diskriminierung: zur Bindung der Gesetzgebung an das Gleichheitsrecht (Wien: Springer, 2001). See N. Marschik, Die UN-Rassendiskriminierungskonvention im österreichischen Recht (Wien: Verlag Österreich, 1999); F. J. Heidinger, A. Frank-Thomasser and Th. Schmid (eds.), Antidiskriminierung – Rechtliche Gleichbehandlung in Österreich und in der EU (Wien: Springer, 2004); R. Rebhahn (ed.), Gleichbehandlungsgesetz – Kommentar (Wien: Springer, 2005).

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only. This was not a priori inconsistent with the Convention, but led to Austrian convictions by the ECtHR in individual cases23 and thus attracted the interest of the legal and scientific community. Similarly, discrimination in connection with Article 8 ECHR evoked a large number of academic works. The latter constitutes a sort of ‘catchall clause’ that provides guarantees to private and family life and its extent of protection is determined on a case-by-case basis. According to existing literature and case law, the fundamental rights guaranteed by Article 8 ECHR cover the right to self-determination and protect the entire sphere of privacy, it is therefore quite multifaceted.24 As personal privacy comprises interpersonal relations and the right to freely choose one’s sexual orientation, Austria came into conflict with the Convention because of a specific provision contained in the Austrian Criminal Code. This provision prohibited sexual relationships between adult and adolescent males until 2002 and was harshly criticised and challenged before courts – first on the domestic level, later in front of the ECtHR – before being finally abolished by the Constitutional Court.25 Due to the joint efforts of lawyers, NGOs and the individuals concerned, the issue attracted much attention throughout the process that led to its repeal and beyond.26 Freedom of information and speech, particularly freedom of the media, is another issue which has preoccupied Austrian academics and the legal community on the basis of the guarantees stipulated in the Convention.27 Article 10 ECHR allows countries to introduce a licensing procedure for broadcasting services, but this does not mean that the issuance of such licenses can be conditional upon the content of the communicated opinions; that is to say any kind of censorship is prohibited. In the course of the so-called Austrian ‘radiocases’, which triggered the opening of the radio broadcast market and led to the dismantling of the monopoly of the public broadcasting agency [Österreichischer Rundfunk, ORF], the Strasbourg Court has emphasised the

23 24

25 26

27

See section III below. See W. Berka, Medienfreiheit und Persönlichkeitsschutz (Wien: Springer, 1982); T. Lukasser, ‘Europäische Menschenrechtskonvention und individueller Lebensstil’, ÖJZ (1994), 569 ff.; E. Wiederin, Privatsphäre und Überwachungsstaat (Wien: Manz, 2003). For further details see section IV below. See in particular H. Graupner, Sexualität, Jugendschutz und Menschenrechte – Über das Recht von Kindern und Jugendlichen auf sexuelle Selbstbestimmung, 2 vols. (Frankfurt am Main/ Berlin/Bern/New York/Paris/Wien: Peter Lang, Europäischer Verlag der Wissenschaften, 1997). See for example Berka, Medienfreiheit und Persönlichkeitsschutz; W. Berka, ‘Die Kommunikationsfreiheit in Österreich’, in Machacek, Pahr and Stadler (eds.), vol. II, pp. 393 ff.; M. Holoubek, ‘Medienfreiheit in der Europäischen Menschenrechtskonvention’, AfP (2003), 193 ff.; Österreichische Juristenkommission (ed.), Caroline und die Folgen: Medienfreiheit am Wendepunkt? (Wien/Graz: Neuer Wissenschaftlicher Verlag, 2005).

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fundamental importance of freedom of opinion to ensure plurality in a democratic society. As a consequence, the state monopoly could no longer be upheld, and in 2001 the legislator enacted the Private Radio Act and the Private Television Act, opening the broadcasting market to private broadcasting corporations and radio stations.28 Austria has also faced repeated convictions with regard to freedom of expression in print media, some of them in the recent past. According to ECtHR jurisprudence, media coverage of politicians or other persons of the public life does not have to be as restrictive as when private persons are affected. This is due to the assumption that a public political debate is an essential element of democratic society.29 In the Austrian case, however, there is a special, historically justified limitation of Article 10 ECHR, namely the abovementioned Prohibition Statute. Accordingly, it is forbidden to publicly approve, trivialise or seek to justify the ideas of National Socialism, genocide and other forms of National Socialist crimes. This is a rather controversial issue in the current public discussion, not only because of the repetitive convictions of Austria by the ECtHR for not guaranteeing journalistic freedom. Much has been written and said in this regard, but it is predominantly a question of awareness raising and training of those applying the law, in order to aim for a higher level of conformity with Article 10 ECHR in the future.

3. Litigation in the ECtHR on Claims Raising Articles 8 to 11 and 14 ECHR, with a Specific Focus on Minorities and Immigrants Becoming a member to the ECHR fifty years ago was politically undisputed in Austria. The country’s accession was perceived as an act of European solidarity. Both, the government and the judiciary were of the opinion that fundamental rights were already sufficiently guaranteed within the Austrian legal order. The ratification of the Convention was not considered to have any substantial consequences. It came as a surprise when a relatively large amount of applications was lodged against Austria.30

28

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See H. Wittmann, Rundfunkfreiheit (Saarbrücken: Schriftenreihe Forschungen aus Staat und Recht, 1981), vol. 55; W. Berka, Rundfunkmonopol auf dem Prüfstand (Wien: LexisNexis ARD ORAC, 1988); M. Holoubek, Rundfunkfreiheit und Rundfunkmonopol, (Wien: Böhlau, 1990); H. Tretter, ‘Wie Österreich in Straßburg wegen des ORF-Monopols verurteilt wurde’, JAP (1994), 141 ff.; H. Tretter, ‘Jüngste Entwicklungen im österreichischen Rundfunkrecht’, EuGRZ (1996), 77 ff. I.e. the so-called ‘public figure standard’. See F. Matscher, ‘Was 50 Jahre EMRK in Österreich verändert haben’, Die Presse, 8 September 2008.

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Most of the applications so far have concerned Articles 5 and 6 ECHR, some Articles 3, 8, 10 and 11 ECHR as well as Article 1 of the First Protocol to the Convention. In 1985–2007, about ninety decisions and judgments fall within the scope of core civil and political rights and/or directly involve or have consequences for marginalised groups. For the study of minority protection in the Convention system, all judgments and decisions pertaining to Articles 8, 9, 10, 11 and 14 ECHR as well as those affecting marginalised groups, like aliens,31 members of ethnic and religious minorities or homosexuals, though referring to other Articles of the Convention, are considered. A little less than one third of the cases selected, relate to issues pertaining to aliens. They concern proceedings regarding residence prohibitions, as a consequence of criminal convictions (also involving asylum seekers) and the length of appeal proceedings in connection with the Aliens’ Employment Act. Two cases of this category had important consequences for third country nationals residing in Austria. One opened access to emergency assistance for third country nationals. The other one was the starting point for proceedings before the UN Human Rights Commission and the European Court of Justice, resulting in the abolition of a provision prohibiting third country nationals from standing as candidates in works’ council elections.32 Besides, several cases were taken to Strasbourg by aliens alleging violation of the right to a fair trial. About thirteen percent of the cases under study dealt with the issue of discrimination on grounds of sexual orientation. Applicants were convicted of having violated section 209 of the Austrian Criminal Code, which penalised sexual relationships between male adults and adolescents. They thus challenged the provision’s compliance with Article 8 ECHR in conjunction with Article 14 ECHR. Few cases also related to religious minorities, and pertained to sects or to views held by devout Roman Catholics. The right to private life has very often been invoked in connection with aliens’ law in Austria. Authorities are obliged to balance the security interests of the state with the interests of aliens who are in custody pending deportation and whose families are allowed to remain in the country. In particular, since the aliens’ law package has come into effect at the beginning of 2006, many critics have spoken out on the issue of lawful residence and the right to family life, precisely because the number of irregular aliens has tremendously

31

32

Aliens are persons who have another nationality than the Austrian. All third country nationals are subject to the Aliens’ Act, Aliens’ Police Act and the Aliens’ Employment Act regulating access to the country, residence status and access to the labour market. For further details see section IV below.

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increased because of this new legislation. Since then, the rights under Article 8 ECHR have been at serious risk as the public (security) interests have been given priority in the vast majority of pertinent cases without due consideration of the principle of proportionality.33 The explanation for the reasons why this marginalised group had to take recourse to the ECtHR is closely linked to the rules governing the political system. Austria has been governed by large coalition governments for more than thirty years since 1945. Large coalition governments were formed by the Social Democrats and the conservative People’s Party, and very often were supported by a two third majority in parliament. There were short intermezzos of small coalition governments either uniting the Social Democrats or the People’s Party with right wing conservative parties. It has been quite typical of the Austrian large coalition governments, which had to balance social democratic with conservative policy views, that the adopted legislation and pursued policies reflected a very low ‘common denominator’. The Freedom Party, a right wing populist party, has been quite successful as an opposition party in influencing the policies of large coalition governments and adversely affecting their aliens’ policy in particular. Other explaining factors are linked to political, as well as public attitudes towards minorities,34 which are not only shared by politicians, but also by the judiciary.35 Notwithstanding, members of the Constitutional Court have repeatedly criticised the bad quality of aliens’ and asylum legislation, which partly results from amendments discussed in a rather emotional political atmosphere.36 Labour migration started in the late 1960s. Although subsequent Austrian governments and trade unions had agreed on the so-called ‘rotation principle’, indicating that immigrants would only stay for one to two years, family reunification started in the 1970s. The subsequent decades were characterised by a diversification of the countries of origin of immigrants and an increase in

33

34 35 36

See P. Pernthaler and I. Rath-Kathrein, ‘Der grundrechtliche Schutz von Ehe und Familie’, in Machacek, Pahr and Stadler (eds.), vol. II, pp. 245 ff.; see also B. Weichselbaum, ‘Die Regelung des Familiennachzugs in Österreich im Lichte der Vorgaben der Europäischen Menschenrechtskonvention’, ZAR (2003), 359 ff; E. Wiederin, Aufenthaltsbeendende Maßnahmen im Fremdenpolizeirecht (Wien: Rechtswissenschaftliche Schriftenreihe des Assistentenverbandes der Wirtschaftsuniversität Wien, 1993); B. Gutknecht, ‘Grundrechtsschutz für Ehe und Familie’, Recht-Politik-Wirtschaft 4 (1988), 92 ff. See below. As to the judicial approach see section II above. See K. Heller, ‘Einige Bemerkungen zum Asylverfahren’, in Bammer, Holzinger, Vogel and Wenda (eds.), Rechtsschutz gestern – heute – morgen (Wien/Graz: Neuer Wissenschaftlicher Verlag, 2008), p. 193.

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asylum seekers.37 Eurobarometer surveys over the last decade have shown that Austrians have a less positive attitude towards ethnic minorities than the EU average. In 1997 forty-two percent of the interviewees characterised themselves as ‘very or quite racist’ (the EU average was thirty-three percent).38 Between 1997 and 2000 the proportion of those believing that a society composed of people from different races, religions and cultures was a positive thing, decreased from nearly three quarters to just over fifty percent of the respondents (at the EU level from sixty-six to sixty-four percent).39 In 2003 the Austrian respondents were among those scoring lowest on the question whether discrimination on various grounds was always wrong.40 Three years later sixty-one percent of the interviewees considered the Austrian attempts to fight all forms of discrimination to be adequate (the EU average was forty-five per cent).41 The public discourse was and still is dominated by keywords such as ‘asylum abuse’ and ‘criminalisation of asylum seekers’.42 Since 9/11 the socalled ‘alien problem’ has gradually been substituted by the ‘Muslim problem’ identifying Muslim immigrants as potential threats to European values and public security.43

37

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39

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The first migrants originated from Turkey and former Yugoslavia; later on migrants from various Eastern European countries, Africa and Asia started to come to Austria. In the same year, seventy percent supported the statement that if more people belonging to ethnic minorities came to Austria, the country would face problems (the EU average was sixty-five percent). Only thirty-nine percent were of the opinion that people from minority groups were discriminated against in the labour market (the EU average was seventy-one percent). See B. Birka, G. Lemaine and J.S. Jackson, Opinion Poll – Racism and Xenophobia in Europe (on behalf of the European Commission, 1997), pp. 2, 5 and 7, http://ec.europa.eu/ public_opinion/archives/ebs/ ebs_113_en.pdf. See E. Thalhammer, V. Zucha, E. Enzenhofer, B. Salfinger and G. Ogris, Attitudes towards minority groups in the European Union: A special analysis of the Eurobarometer 2000 survey (on behalf of the European Monitoring Centre on Racism and Xenophobia, 2001), pp. 54f., http://ec.europa.eu/public_opinion/archives/ebs/ebs_138_analysis.pdf. See A. Marsh and M. Sahin-Dikmen, Discrimination in Europe: Eurobarometer 57.0 – Executive Summary (on behalf of the European Commission, 2003), pp. 11f., http://ec. europa.eu/public_opinion/archives/ebs/ebs_168 _exec.sum_en.pdf. See European Commission, Austria, Discrimination in the European Union: Special Eurobarometer 263 (European Commission, 2006), http://ec.europa.eu/public_opinion/ archives/ebs/ebs_ 263_fiche_at. pdf. See Heller, ‘Einige Bemerkungen zum Asylverfahren’, pp. 184f. See M. Rohe, Perspektiven und Herausforderungen in der Integration muslimischer MitbürgerInnen in Österreich (Wien: Bundesministerium für Innere Angelegenheiten, 2006), http:// www.bmi.gv.at/downloadarea/asyl_fremdenwesen/Perspektiven_Herausforderungen.pdf, pp. 16f.

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Immigrants or people representing their views are hardly ever involved in politics. NGOs representing diverse interests of immigrants and asylum seekers have been gaining influence over the last fifteen years only. The starting point of the growing civil society movement was the ‘sea of lights’ [Lichtermeer] in 1993, a big demonstration organised against the petition for a referendum by the Freedom Party called ‘Austria first’ [‘Österreich zuerst’].44 In the wake of this demonstration NGOs like Amnesty International Österreich, Asyl in Not, Asylkoordination, Caritas, Diakonie, Evangelischer Flüchtlingsdienst, Helping Hands, Integrationshaus, the Ludwig Boltzmann Institute of Human Rights, Netzwerk Asylanwalt, SOS Mitmensch, Volkshilfe and ZARA – Ziviclourage und Anti-Rassismus-Arbeit further mobilised for the rights of asylum seekers and immigrants. Similar dynamics can be identified as far as the equal rights of gays and lesbians are concerned. Yet, the struggle against discriminating laws and practices affecting homosexuals was slightly more straightforward than that regarding aliens and asylum seekers since it could concentrate on one specific aspect of the law. Contrariwise, cases pertaining to aliens and asylum seekers concern very different aspects of aliens’ legislation as well as many other policy areas. Interestingly, certain minorities vulnerable to human rights violations are not represented among litigants, neither before the ECtHR nor domestic courts. One of them is the Muslim minority. About five percent of the resident population in Austria are of Muslim faith. Among resident aliens, the Islamic Faith Community is the largest group (about one third). Muslims enjoy the status of a legally recognised religious community (Act on Islam 1912),45 and have equal rights to Catholics, the biggest religious group in Austria (about eighty percent). Recognised religious communities are entitled to receive certain state subsidies and tax exemptions. Furthermore, they enjoy the status of a legal person, which enables them to engage in particular contractual obligations. Primary and secondary school students belonging to the Muslim minority receive religious instruction as a compulsory subject in Austrian schools, including the possibility to opt out. The religious community can decide autonomously on curricula and teachers, whose salaries are financed by the

44

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Inter alia, it aimed at the implementation of a constitutional provision defining Austria explicitly as a ‘non-immigration-country’ and at the realisation of several other points discriminating against aliens, e.g. excluding aliens from voting rights, the limitation of the number of pupils with other native languages than German in school classes or the immediate expulsion of delinquent foreigners. Islamgesetz, Law Gazette of the Austrian empire [Reichsgesetzblatt], No. 159/1912 (RGBl. Nr. 159/1912).

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Austrian state. Nevertheless, there are incidents of discrimination against individuals belonging to the Muslim community.46 Another minority which has not taken any case to the ECtHR47 are the Carinthian Slovenes. They are one of the ethnic minority groups [Volksgruppen] in Austria that enjoy the status of recognised autochthonous minorities. Based on the Austrian historical events, Croats, Slovenes, Hungarians, Czechs, Slovaks, and Roma have been granted special rights with the declared intention of protecting those groups’ languages, cultures and traditions.48 Besides the right to equal treatment and non-discrimination, the members of minorities who are state nationals are granted explicit rights specified in the Minorities’ Act [Volksgruppengesetz].49 The Act was adopted in 1976 and applies to individuals from both linguistic and non-linguistic minority groups. The minorities under protection are defined as ‘groups of Austrian nationals that live and traditionally have had their home in parts of the federal territory whose mother tongue is not German and who have their own traditions and folklore’.50 This definition promoted a shift of focus from the linguistic to the ethnic dimension in the self-conception of minority groups.51 The Minorities’ Act addresses issues of political participation via National Minority Advisory Councils, financial support for minorities from National Minorities Assistance Funds, the issue of topographic terms and signs, and the use of minority languages as official languages. The Act also stipulates a freedom of choice concerning the personal avowal to a respective minority group. This means that

46

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49 50 51

For example, against women wearing the headscarf incidents are documented in connection with job applications, access to services such as childcare, or assaults by civilians in daily life. See ZARA – Ziviclourage und Anti-Rassismus-Arbeit, Rassismus Report 2007 (Wien: ZARA, 2008), http://www.zara.or.at/materialien/rassismus-report/Rassismus-Report% 202007.pdf. Except for one case in which the monopoly of the Austrian Broadcasting Corporation was challenged before the ECtHR, one applicant called Arbeitsgemeinschaft offenes Radio (AGORA) wanted to establish a radio station in southern Carinthia to broadcast noncommercial radio-programs in German and Slovene. See ECtHR, Informationsverein Lentia and Others v. Austria (nos. 13914/88; 15041/89; 15717/89; 15779/89; 17207/90), 24 November 1993. See also: G. Baumgartner and B. Perchinig, ‘Minderheitenpolitik’, in Dachs, Gerlich, Gottweis, Horner, Kramer, Lauber, Müller and Tálos (eds.), Handbuch des politischen Systems Österreichs: Die Zweite Republik, (Wien: Manz, 1997), pp. 628–640. Federal Law Gazette, No. 396/1976 (BGBl. Nr. 396/1976). Section 1 Paragraph 2 Minorities’ Act. See G. Baumgartner and B. Perchinig, ‘Minderheitenpolitik’, in Dachs, Gerlich, Gottweis, Horner, Kramer, Lauber, Müller and Tálos (eds.), Handbuch des politischen Systems Österreichs: Die Zweite Republik (Wien: Manz, 1997), pp. 628–640.

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national authorities are not allowed to collect data on the affiliation to a minority group, not even in the course of a public population census. Furthermore, the rights of the Slovenian and Croatian minorities in the three federal provinces of Carinthia, Styria and Burgenland are safeguarded to an even greater extent, namely on the basis of the State Treaty of Vienna 1955. Members of these groups enjoy the constitutionally guaranteed rights to elementary education in their native languages, the use of their minority languages besides German in official matters [Amtssprache] and to bilingual topographic signs (mainly road and direction signs) placed in certain regions. In 2005 the Constitutional Court issued a judgment52 requesting an increase in the number of bilingual topographic signs (German and Slovene) in the federal province of Carinthia. Much attention has been drawn to this judgment because of the late Carinthian governor’s refusal to abide by it. His nonobservance constituted a severe interference with the principle of the rule of law. A well known Austrian lawyer and member of the Slovene minority challenged the non-existence of bilingual road signs before the Constitutional Court, which decided that an individual right to have this kind of topographic signs did not exist. Deducing such a right from Article 8 ECHR is arguable53 and a pertinent application has been filed with the ECtHR but has not yet been declared admissible. Apart from that, the creation of a special domestic frame of minority rights served very much to improve the safeguarding of the fundamental rights of individuals belonging to autochthonous minorities at the domestic level. This certainly accounts for the fact that they have not been among the litigants in the Strasbourg Court.

4. ECtHR Jurisprudence in the Cases under Review The cases that have been brought to the Strasbourg Court by members of marginalised groups in Austria cluster around three major issues: firstly, the situation and rights of aliens and asylum seekers, secondly, the legal and factual problems faced by homosexuals and thirdly, obstacles encountered by religious minorities. However, compared to the first two issues very few applications have been made on grounds of the violation of the rights of religious minorities. Several applications have been taken to Strasbourg dealing with complaints about an infringement of the freedom of opinion – in particular journalistic freedom – and almost as many resulted in convictions of Austria. 52 53

Verfassungsgerichtshof (VfGH) 12 December 2005, V64/05-B1307/04. See Tretter, ‘Artikel 8 EMRK als Grundlage eines individuellen Rechts auf zweisprachige Ortstafeln?’, pp. 265 ff.

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However, due to the purpose of this paper, namely the protection of minorities, these cases will not be dealt with in more detail.54 To examine possible influences on the political climate and hence implications for those individuals would go far beyond the scope of the chapter. Between 1985 and 2007 a total of twenty-eight cases were taken to the ECtHR on behalf of aliens, thirteen of these cases were either declared inadmissible or struck out of the list as the matter had been resolved.55 Thirteen other cases concerned the issuing of residence prohibitions. In four cases Austria was convicted of having violated Article 8 ECHR. There, Austrian courts had considered the discontinuation of the residence of three applicants, who had been convicted of criminal offences, necessary in order to prevent disorder and crime and to protect the rights of others (Jakupovic, Radovanovic and Yildiz).56 The public interest – according to Austrian courts – was regarded to outweigh the respect for the applicants’ right to private and family life. In Moser, the relevant authorities had issued a residence ban because of illegal employment of the applicant, a Serbian national, and transferred custody of her newly born son to the Youth Welfare Office. The ECtHR established a violation of Article 6 ECHR, as the applicant had been denied a public hearing, as well as a breach of Article 8 ECHR because the reasoning of the Austrian courts was ‘not sufficient to justify such a serious interference with the applicants’ family life’.57 In three cases the matter was resolved by taking steps to lift the residence prohibitions issued (Gümüskaya, Bulut and Özdemir)58 and they were struck out of the list consequently. Seven cases taken to the ECtHR were declared inadmissible as they were ill-founded.59 Two cases involved administrative proceedings with regard to the Aliens’ Employment Act (Jancikova and Jurisic and Collegium Mehrerau),60 which 54

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57 58

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See also W. Karl and W. Berka (eds.), Medienfreiheit, Medienmacht und Persönlichkeitsschutz, Internationales Symposion am Österreichischen Institut für Menschenrecht in Salzburg am 14. und 15. Juni 2007 anlässlich des 20-jährigen Bestehens des Instituts, Schriften des Österreichischen Instituts für Menschenrechte (Kehl am Rhein/Straßburg/Arlington: Engel, 2008). See below. ECtHR, Jakupovic v. Austria (no. 36757/97), 6 February 2003; Radovanovic v. Austria (no. 42703/98), 22 April 2004; and Yildiz v. Austria (no. 37295/97), 31 October 2002. ECtHR, Moser v. Austria (no. 12643/02), 21 September 2006. ECtHR, Gümüskaya v. Austria (no. 22782/93), 18 October 1993; Bulut v. Austria (no. 20807/92), 13 October 1992; and Özdemir v. Austria (no. 14308/03), 8 December 2005. ECtHR, Öztürk v. Austria (no. 26400/95), 6 February 1995; Altuntas v. Austria (no. 25918/94), 13 December 1994; Onyegbule v. Austria (no. 26609/95), 2 March 1995; Adegbie v. Austria (no. 26998/95), 7 April 1995; B.S. v. Austria (no. 27647/95), 19 June 1995; Schober v. Austria (no. 34891/97), 12 February 1997; and Fehrati v. Austria (no. 31411/96), 7 May 1996. ECtHR, Jancikova v. Austria (no. 56483/00), 7 April 2005; Jurisic and Collegium Mehrerau v. Austria (no. 62539/00), 27 July 2006.

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regulates access to the labour market of third country nationals, as well as that of nationals of the new EU member states except for Cyprus and Malta. Austria was convicted of having breached Article 6 ECHR in both cases. Four more cases filed by non-nationals complaining about violations of Article 6 ECHR resulted in condemnations for infringing upon the right to have a public hearing,61 the right to have the judgment pronounced publicly 62 and to be heard from a third instance court.63 Also, the submission of the Attorney General’s observations to the Supreme Court only, i.e. the lack of an opportunity to respond in the applicant’s defence,64 formed the grounds for an ECtHR judgment. The asylum issue formed the object of two cases taken to Strasbourg. In Ahmed,65 the applicant who had fled Somalia, had been granted refugee status according to the definition in the Geneva Convention. The applicant was deprived of his refugee status because he had been convicted of attempted robbery and sentenced to two and a half years in prison. The decision was upheld although the applicant asserted that the situation in Somalia had become worse since his departure in 1991. Austria was convicted for violation of Article 3 ECHR as the applicant could not return to Somalia without being exposed to the risk of a treatment contrary to Article 3 ECHR. In spite of this ruling, Austrian authorities did not grant him any subsidiary protection and the applicant finally committed suicide on the Square of Human Rights in the city of Graz.66 In Bilasi-Ashri,67 the applicant had fled Egypt and asylum proceedings were still pending when he turned to the ECtHR for alleged violation of Articles 3, 6, 8 and 13 ECHR. The applicant was convicted in absentia for belonging to an illegal association threatening national order and security by means of violence and terror as well as of serious criminal offences in Egypt, and was therefore sentenced to fifteen years in prison and hard labour. The Egyptian Ministry of Justice filed a request for extradition, which was granted on certain conditions,68 and the applicant was detained with a view to his extradition. The case was struck out of the list as the applicant was released

61 62 63 64 65 66 67 68

ECtHR, Rushiti v. Austria (no. 28389/95), 21 March 2000. ECtHR, Szücs v. Austria (no. 20602/92), 24 November 1997. ECtHR, Cooke v. Austria (no. 25878/94), 8 February 2000. ECtHR, Bulut v. Austria (no. 17358/90), 22 February 1996. ECtHR, Ahmed v. Austria (no. 25964/94), 17 December 1996. See Salzburger Nachrichten, 25 March 1998. ECtHR, Bilasi-Ashri v. Austria (no. 3314/02), 26 November 2002. Those conditions were that the original decision of the Egyptian court would be declared null and void and that the applicant would not be re-tried before an Egyptian court with exclusive jurisdiction to deal with political criminal cases but before an ordinary court.

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from detention immediately after the Egyptian authorities had indicated that they would not accept the conditions set out in the extradition order. In the case of Karakurt,69 a Turkish citizen who was elected works’ council representative in 1994, but deprived of his mandate on the grounds of his Turkish nationality, turned to the ECtHR invoking Article 11 ECHR. The case was struck out of the list since a staff association such as the works’ council in the respective case could not be considered an ‘association’ within the meaning of Article 11 paragraph 1 ECHR.70 It was also a Turkish national who brought one of the cases concerning Article 14 ECHR to the Court. The applicant was refused emergency assistance [Notstandshilfe] on the grounds of his nationality (Gaygusuz v. Austria)71; the Court considered this a violation of Article 14 ECHR in conjunction with Article 1 of the First Protocol to the Convention. The refusal of emergency assistance was exclusively based on the fact that the applicant did not have Austrian citizenship and was not underpinned by any ‘objective and reasonable justification’. In the Kamasinski case72 the applicant, a US citizen, complained of insufficient interpretation both in pre-trail and the main proceedings. The Court established no violation of Article 14 ECHR, yet found a breach of Article 6 ECHR as the applicant had been refused leave to attend the appeal hearing before the Supreme Court. In the category of cases on behalf of homosexuals, a total of ten were taken to Strasbourg, nine of which related to the above-mentioned section 209 of the Austrian Criminal Code. This section prohibited homosexual acts between male minors and adults. In 1996, the Austrian Parliament held a debate on the motion to repeal section 209 of the Criminal Code, but finally the legal provision remained in force. The resistance to abolishing the respective section can be attributed to the conservative People’s Party and diverging views among Social Democrats. The president of the Austrian lesbian and gay rights

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ECtHR, Karakurt v. Austria (no. 32441/96), 30 July 1996. Even though the Court did not issue a judgment in promotion of the rights of the applicant in the given case, in April 2002 – after eight years of unsuccessful judicial proceedings both before domestic courts and the ECtHR – the UN Human Rights Committee took a decision. It adopted the view that stripping the man of his mandate was an offence to Article 26 of the International Covenant on Civil and Political Rights, as ‘it is not reasonable to base a distinction between aliens concerning their capacity to stand for election for a work council solely on their different nationality’. Austria, therefore, has to ‘ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, and to provide an effective and enforceable remedy’. See UN Human Rights Committee, International Covenant on Civil and Political Rights, Seventy-fourth session, 18 March–5 April 2002, CCPR/C/74/D/965/2000, http://www.bka.gv.at/dokumente/karakurt.pdf. ECtHR, Gaygusuz v. Austria (no. 17371/90), 16 September 1996. ECtHR, Kamasinski v. Austria (no. 9783/82), 19 December 1989.

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organisation Rechtskomitee LAMBDA,73 who is also the founder of the Platform Against Section 209,74 encouraged convicted homosexuals to bring their cases to the European Court of Human Rights. Two of these cases were declared inadmissible because they were ill-founded.75 In seven cases the Court established a violation of Article 8 ECHR taken together with Article 14 ECHR.76 Until 2002 the position taken by the Constitutional Court on the issue was that section 209 was meant to protect young, maturing males from developing a ‘wrong’ sexual orientation. The court considered that homosexual influence endangered male adolescents to a significantly greater extent than girls of the same age. In 2002, upon a request for review made by the Innsbruck Regional Court, the Constitutional Court finally found that the criminal provision was unconstitutional. Although the pertinent section was repealed shortly before the ECtHR brought its first judgment on the issue, the sustained litigation in Strasbourg had perceptible effects on the domestic measures in reaction thereto. Taking those cases to Strasbourg was part of a broader campaign initiated by NGOs and certain politicians pressuring for the abolition of section 209, which gained further momentum by EU requests: the European Parliament invited the Austrian legislator twice to stop violating the human rights of homosexuals. In spite of that, the Constitutional Court would not have declared section 209 unconstitutional, had there not been several such cases pending in Strasbourg. By delivering highly innovative judgments, critical of state laws and practices, the Court served as an engine of human rights promotion.77 Yet, the strong support was solely based on the availability of lawyers specialised in this field.78 In Ladner,79 a violation of Article 8 ECHR in conjunction with Article 14 ECHR was established under different circumstances: a homosexual person

73 74 75

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See www.rklambda.at. See www.paragraph209.at. ECtHR, H.F. v. Austria (no. 22646/93), 17 September 1993; and Zukrigl v. Austria (no. 17279/90), 10 October 1992. ECtHR, Woditschka and Wilfling v. Austria (nos. 69756/01, 6306/02), 21 October 2004; R.H. v. Austria (no. 7336/03), 19 January 2006; L. and V. v. Austria (nos. 39392/98, 39829/98), 9 January 2003; S.L. v. Austria (no. 45330/99), 9 January 2003; H.G. and G.B. v. Austria (nos. 11084/02, 15306/02), 2 June 2005; and Wolfmeyer v. Austria (no. 5263/03), 26 May 2005. Information provided by a lawyer and president of an association for the rights of homosexuals on 4 September 2007 and by a university professor for public law and member of the Austrian Constitutional Court on 7 September 2007. Information provided by a Member of the Austrian Ombudsman Board, the Green Party and former Chairperson of the Committee on Human Rights in the Austrian Parliament on 26 September 2007. ECtHR, Ladner v. Austria (no. 18297/03), 3 February 2005.

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was prevented from succeeding to a tenancy agreement that had been concluded by his partner before his death. The Austrian Rent Act provided that family members had a right to succeed to a tenancy but the Constitutional Court interpreted the respective provision of the Rent Act in a historical way, stating that the legislator’s intent at the time of introducing the Act had not been to embrace persons of the same sex by the term ‘family members’. With regard to the protection of the rights of religious minorities, only two cases were successfully taken to the ECtHR, namely on behalf of Jehovah’s Witnesses, an association-at the time of drafting this chapter-still not recognised as a religious community in Austria. Concerning this matter, the ECtHR released a judgment pertaining to the status of Jehovah’s Witnesses in Austria in July 2008, wherein the Court established a breach of Article 9 ECHR read in conjunction with Article 14 ECHR. This was based on the fact that the Austrian authorities granted Jehovah’s Witnesses legal personality only twenty years after their first request and had therefore treated them differently than other religious communities. Furthermore, the Court found a violation of Article 6 ECHR concerning the excessive length of proceedings for the recognition of Jehovah’s Witnesses as a religious group.80 In the Hoffmann case, a member of Jehovah’s Witnesses took a custody case to the ECtHR. Her divorcé, who was of Roman Catholic faith, had been granted parental rights over their two children, who were both Roman Catholics, after the Supreme Court overturned the judgments of the courts of lower instance. It stated that the ‘two children [did] not belong to the faith of the Jehovah’s Witnesses’. Their education could no longer be continued in accordance with the provision that ‘neither parent may decide without consent of the other that the child [was] to be brought up in a faith different from that shared by both parents at the time of the marriage or from that in which he or she has hitherto been brought up’. In addition, the lower courts had failed to give due consideration to the ‘children’s welfare’. Albeit it would be preferable for young children to be taken care of by their mother, the court argued, this only applied provided that all other circumstances essential for the children’s wellbeing were equal, which was not the case here. Consequently, the ECtHR established a violation of Article 8 ECHR in conjunction with Article 14 ECHR and argued that ‘a distinction based essentially on a difference in religion alone [was] not acceptable’.81

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81

ECtHR, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40825/98), 31 July 2008. ECtHR, Hoffmann v. Austria (no. 12875/87), 23 June 1993.

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5. Conclusion In the above analysis we have demonstrated that the Strasbourg Court has served as the supreme instance for the revision of fundamental rights of individuals from marginalised groups and minorities in Austria. In many cases the respective judgments have brought about noteworthy improvements, either by provoking amendments to the domestic legal framework or by raising the legal community’s awareness about the issues and circumstances relevant for the protection of those vulnerable groups. About ninety decisions and judgments of the ECtHR against Austria are related to the core civil and political rights and/or directly involve or have consequences for marginalised groups, including aliens and asylum seekers, members of ethnic or religious minorities and homosexuals. Most of the cases that concern aliens deal with residence prohibitions after criminal convictions, unfair trial or discrimination on grounds of nationality. The former have not yet resulted in amended legislation but the government usually offers solutions on a case by case basis (i.e. the repeal of residence prohibitions). Such an approach constitutes a practical method for the domestic authorities in charge to cope with those cases, since it does not attract as much public attention as amending aliens’ legislation. Changing aliens’ law with the aim to improve the legal security of aliens regularly results in public discussions fuelled by both, right wing and conservative parties that demand to stop migration for reasons of public and social security interests. Another string of cases taken to the Court has criticised discriminatory penal and civil law provisions on grounds of sexual orientation, and a breach of homosexuals’ right to private and family life. Here, the role of the ECtHR has been stronger. Cases relating to the abrogation of section 209 of the Austrian Criminal Code clearly followed a litigation strategy. Although legislative changes cannot (solely) be attributed to the judgments pronounced by the ECtHR, the Court very much contributed to the promotion and protection of the rights of homosexuals. The improvements brought about could not have been expected by means of national remedies for quite a while. Few cases have concerned religious minorities, namely sects and Roman Catholics. So far, there have not been any cases taken to Strasbourg by Muslims. Predominantly this is due to the fact that Islam is one of the religious denominations holding the status of a legally recognised religious community with equal rights to those of Catholics in Austria. The human rights discourse in Austria is rather restricted to legal experts, NGOs specialising on human rights as well as certain media. Although human rights are indivisible and universal, awareness for particular fundamental rights is higher in specific policy areas than it is in others. This unequal

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distribution is connected to the resources of mobilisation and interests which cluster around specific policy areas. Lawyers and NGOs are much more active with regard to asylum seekers, immigrants, and refugees than on other subjects. In the areas of asylum and aliens’ policies NGOs quite frequently make references to the ECHR, however, rather few cases are taken to Strasbourg, at least as far as asylum seekers are concerned. The main obstacle to approaching the ECtHR in those cases is certainly the long duration of the national proceedings until domestic remedies are exhausted. Yet, people seeking protection depend on prompt and non-bureaucratic solutions.82 Another category of rights that is publicly discussed due to NGOs’ and lawyers’ activities is the equal treatment of homosexuals. Awareness of human rights in this area is much higher than for the issues of fair trial or compensation payments for unjustified imprisonment for example, which are also less often referred to by the media. Even NGOs that have a broad human rights approach tend to comment on these issues more often than on other human rights violations that occur in Austria.83 In recent years a certain shift of tendencies can be identified as governmental authorities increasingly foster the dialogue with NGOs concerning the promotion of human rights and possible awareness raising strategies. This development goes hand in hand with the rise of the right wing Freedom Party, which successfully dominated the political agenda regarding asylum, immigration and integration policies. The Freedom Party promotes a rather dangerous concept of human rights; in their point of view, the ‘privilege’ of human rights protection is restricted to the ‘hard working’ Austrian nationals as opposed to aliens. Public awareness for human rights is therefore driven by the political agenda and discourse, which leads to a quite selective perception of these rights. The fact that the European Convention on Human Rights enjoys constitutional status does not have much impact on the human rights understanding of Austrian authorities. The awareness for fundamental rights has historically been rather low and underdeveloped. Nowadays, this situation has slightly improved and the ECtHR has played an important role in this development. It would be particularly interesting to analyse the attitudes of judges, opinion leaders, decision makers and political parties towards the ECHR and its relevance for the Austrian legal system and practice. Besides the (formerly) structural deficiencies within the judicial training system, human rights are lacking

82

83

Information provided by a lawyer engaged in asylum and aliens’ law matters since twenty years on 28 March 2008. These would amongst others include access to fair trial, freedom of opinion, freedom of religion, as well as discrimination on the grounds of ethnic origin and religion.

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consideration by the Austrian judicial sector as such. As we pointed out at the beginning of this chapter, the Constitutional Court is competent for reviewing the decisions of administrative authorities and legislative acts, but it does not have the authority to review decisions of judicial bodies. This is the responsibility of the Supreme Court, which has only recently started to make references to the Strasbourg Court’s jurisprudence. However, the domestic human rights protection system is overall effective in principle. Looking at the added-value of the European Court of Human Rights especially with regard to vulnerable and minority groups compared to Austrian courts, one comes across the amounts of compensation awarded by the Strasbourg Court. In certain cases of discriminatory treatment these can exceed the sums fixed for damages by Austrian courts by far. Moreover, at the national level compensations are provided for material (i.e. physical) damage only, which results in an exclusion of those seeking redress for any kind of discrimination falling within ‘moral prejudice’ (immaterial damage). Yet, one cannot fully be convinced of the damages awarded by the ECtHR. In the cases connected to the discrimination of homosexuals for instance, the amounts that were granted by the Court varied extremely from case to case. Moreover, the victims of human rights violations regularly have to spend a lot of the compensation awarded to them on the costs of their lawyers. That is to say that the Court’s accessibility is determined by the financial resources of the potential applicants; this is a crucial factor with regard to applicants from minority groups in particular since they are more likely to be financially ‘underprivileged’ than applicants from the majority population. Further obstacles for resorting to the Strasbourg Court might have to do with the length of national proceedings and the costs involved in criminal procedures. For instance, the applicants claiming against criminal convictions under section 209 of the Criminal Code could not recover the costs for previous domestic proceedings, a fact which could be seen as a further violation of their enjoyment of human rights.84 Another interesting issue is that certain minorities vulnerable to human rights violations are not represented among litigants in Strasbourg, such as Muslims or the Carinthian Slovenes. From the current stage of information one cannot deduce whether their legal status (recognised as religious community or protected by specific minority laws respectively) suffices for efficient protection against human rights violations or whether any other restraints

84

Information provided by lawyers experienced in litigation before the ECtHR, interviews done on 4 September 2007 and 28 September 2007, and by the general secretary of the Litigation Association of NGOs Against Discrimination on 11 December 2007.

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exist to take legal action before the ECtHR. In general, the actual factors influencing individuals or NGOs to bring cases to Strasbourg with the explicit aim of changing certain legal provisions seem to be rather concealed. In conclusion, the ECtHR offers efficient remedies in the benefit of individuals belonging to marginalised groups in case the domestic courts fail to vindicate their rights. It is an essential function of the human rights regime to protect those who are weak, either in numbers, in financial resources, or in power of persuasion. In Austria this perception goes even further, and human rights are primarily considered a protection mechanism for minorities or marginalised groups in society. The outmoded concept of a ‘foreign’ rights protection system interfering with the domestic (judicial) structures strongly calls for alteration by means of shaping opinions and creation of political consciousness. This would also benefit those vulnerable individuals whose human rights are not sufficiently protected at the national level.

Chapter Three Protecting Individuals from Minorities and Other Vulnerable Groups in the European Court of Human Rights, Litigation and Jurisprudence: The Case of Bulgaria Yonko Grozev, Daniel Smilov and Rashko Dorosiev 1. Introduction Bulgaria joined the Council of Europe in 1992, shortly after the fall of communism. Accession to the Council of Europe was seen at the time as the first step in the reintegration of the countries of Eastern Europe in the family of European democracies; it had the task of promoting and supporting the necessary democratic changes in those countries. For the Council of Europe, a key instrument in pursuing the task of building democratic institutions and promoting respect for basic rights was the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ‘the Convention’) and the right to lodge complaints in the European Court of Human Rights (hereafter ‘the Court’ or ‘the ECtHR’). To meet one of the political preconditions for joining the Council of Europe, Bulgaria ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and its main protocols on September 7, 1992. In the next few years, the country ratified a number of human rights treaties, among them the European Convention for the Prevention of Torture, the European Social Charter and in 1999 another landmark Council of Europe document – the Framework Convention on the Protection of National Minorities. From the 1990s onwards, against a background of no domestic tradition in the promotion of basic human rights or institutions to safeguard such rights, the Council of Europe played a leading role in promoting basic rights, through the ECtHR and its other monitoring and reporting mechanisms.

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After 1989, the transition from a communist system to a democratic, free market system has raised numerous new legal and governance issues. Democracy also meant that, in the political process, prejudices held by the majority were expressed, along with hostility towards marginalised groups. Some religious groups as well as ethnic groups were the targets of such prejudice. At the same time, the domestic judicial system was not up to the task of providing protection, leaving the ECtHR as the ultimate guarantor of human rights. Litigation as an advocacy tool was first used in Bulgaria by several human rights groups in the mid-1990s. Western governments and private donors supported these groups financially. The groups were not affiliated with any of the existing political parties. The groups’ strategy was devised on the basis of an understanding that Bulgarian courts were not a reliable forum for human rights complaints and that recourse to the European Court of Human Rights should be taken as early as possible. Over the years, these groups took up various human rights issues, some of them related to basic political rights, while others related to fair trial and other procedural issues. Most of the cases brought before the European Court of Human Rights were not related to political rights. A significant number of them were also not raising issues larger than the individual case concerned. Some of the cases, however, were cases representing the most important civil and political rights issues in the mid-1990s, such as religious rights of Muslims and minority Christian religions, and freedom of assembly and association of ethnic Macedonians. Another issue that was addressed through litigation was the use of excessive force by police against Roma. In the early 1990s, human rights groups identified the situation of Roma as particularly troubling. Monitoring revealed growing problems of unemployment, lack of access to education and to other services provided by the government. In this chapter, we review the existing system of rights protection in Bulgaria with a focus on the rights of individuals from minorities and other vulnerable groups, and the role of the ECtHR in this process. In section 2 of the chapter, we examine the basic components of the rights protection mechanism in Bulgaria, the position of the Convention vis-à-vis national legislation and its treatment by national courts, as well as the human rights issues that have preoccupied the Bulgarian academic and legal community. In section 3, we offer a retrospective review on mechanisms and motivation for litigation at the ECtHR on claims raising Articles 8-11/14 ECHR and concerning rights of individuals from marginalised groups. In section 4, we review the ECtHR’s jurisprudence on Bulgarian cases concerning rights of individuals from minority and marginalised groups. The cases could be divided roughly into four separate groups: cases concerning state interference in the religious affairs

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of marginalised groups; cases of racially motivated violence against Roma; cases involving prohibition of political parties, refusals to register a party or an organisation, and restrictions on public gatherings and rallies; and one case raising gender issues.

2. The Study of the ECHR: State of the Art in Bulgaria The protection of human rights under the 1991 Constitution in Bulgaria is entrusted primarily to a number of judicial bodies. The most important among these are the Supreme Court of Cassation and the Supreme Administrative Court, the highest courts in the Bulgarian judicial system. The first deals with criminal law and civil law cases, while the second is competent in administrative law matters. Since the late 1990s, both the Supreme Court of Cassation and the Supreme Administrative Courts have increasingly relied in their case law on ECtHR jurisprudence. However, most of this new case law has been on fair trial and other procedural issues, and less on political and equality rights. This influence of case law of the Court on domestic jurisprudence has come in two forms. The first, quite widespread, has been the interpretation by domestic courts of certain provisions of domestic law in a manner that could be supported by international law. There is an abundance of rulings and judgments by the Supreme Court of Cassation on pre-trial detention and on fair trial guarantees that rely on Articles 5 and 6 of the Convention, and a fair number of judgments of the Supreme Administrative Court in asylum cases that do the same. The second, more exceptional impact on the domestic courts, is to be observed in cases where their judgments are directly influenced by the ECtHR’S case law, changing well-established domestic jurisprudence. There are far fewer examples of such cases, most notably one on judicial review of disability benefits and another one on deportation of foreigners. One key national institution, which by its original design should play an important role in protecting human rights, is the Constitutional Court (the “CC”). The Bulgarian Constitutional Court is not part of the judicial system but is an independent body, which primarily exercises review of the constitutionality of legislation. The is also the body authorised to rule on the constitutionality of political parties, which was the cause of one Article 11 case in the ECtHR. It is the key national institution for the protection of human rights, since it is the main instrument guaranteeing the supremacy of the Constitution and the basic rights guaranteed by it. Individuals, however, are not empowered to address this court directly. This has meant that it has been engaged to a very limited extent in the protection of basic rights and liberties. Its activities have centred on invalidating parliamentary legislation that is

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contrary to the provisions of the Constitution and that violates the rights enshrined in it. Apart from the review of the constitutionality of legislation, the CC has had some impact on the protection of rights via its rather peculiar prerogative to interpret the constitutional provisions in abstracto. Through this procedure, the CC could be asked by state bodies to give authoritative interpretation of constitutional provisions without reference to a specific case. Examples of such rulings have been the broad interpretative judgments of the CC on religious rights and on freedom of expression. The practical effect of such rulings, however, has been rather insignificant. The CC is also the body authorised to rule on the constitutionality of political parties, which was the cause of one Article 11 case in the ECtHR. Apart from ordinary courts and the Constitutional Court, there are several other institutions designed to augment the protection of rights in Bulgaria. The Ombudsman is a relatively recent institution in the Bulgarian legal system and so far has had no real impact. The potential importance of the Ombudsman grew after a 2006 amendment to the Constitution that empowered the Ombudsman to address the Constitutional Court. The idea behind this amendment was to provide an indirect mechanism for citizens to reach the CC through the mediation of the Ombudsman. It was argued that the Ombudsman could serve as a ‘filter’ for unfounded individual complaints, which might ‘flood’ the court. Another non-judicial body which has been introduced with the intention of strengthening the protection of rights is the Commission against Discrimination. This body is empowered to consider complaints under the Non-Discrimination Act. Since it has been recently introduced, however, the Commission has not been able to develop extensive practice and to contribute significantly to clarifying standards in the protection of rights. The ECHR has priority over ordinary legislation in Bulgaria, although it is arguably inferior to the legal force of the Constitution. Although this might be a matter of contention and controversy, if the ECHR is in conflict with the Constitution, the Constitution should prevail – at least according to some of the most authoritative scholars in the field. The Bulgarian Constitution does contain provisions which mirror all provisions of the Convention. In the few points of potential divergence, like the express ban on political parties formed on an ethnic and religious basis, the Constitutional Court has sought to interpret the constitutional provision in a way which is compatible with the Convention.1 In such cases, the CC has departed significantly from the literal language, and more interestingly, from the intentions of the drafters of the Constitution. In other instances, the constitutional judges have opted to

1

See, for instance, Decision no. 4, 1992 of the Constitutional Court.

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interpret creatively articles of the Convention, in order to make them compatible with their reading of the Bulgarian Constitution.2 While the CC has made an effort to ensure the compatibility of its interpretations of constitutional rights with the articles of the Convention, this effort has hardly been sufficient. The CC has failed to introduce in Bulgarian adjudication rigorous standards of human rights protection, especially those regarding Articles 9, 10 and 11 of the Convention. Even where decisions have had a favourable outcome from the point of view of rights’ protection, consistent legal arguments, clarity and stability of judgements and judicial interpretations are lacking. And in some cases, as shown below, judges have even clearly departed from the doctrine and rationale of the ECHR. Although Bulgarian courts rely increasingly on the ECHR in their jurisprudence, the introduction of international human rights law into domestic law has been slow and difficult. Throughout the 1990s, courts would implicitly, and sometimes even explicitly, say that international law is not directly applicable. While in the late 1990s such attitudes were overcome, knowledge of international law still remained insufficient and the courts were reluctant to use it extensively. This has been particularly true in the field of politically sensitive issues, where courts traditionally have been more deferential to executive decisions. The first obvious problem of rights protection in Bulgaria is the lack of clearly articulated standards in the interpretation and application of basic human rights, which leaves significant discretion in the hands of judges. The CC has been most at fault because this was the judicial body that was supposed to develop clear standards to serve as an example to the ordinary courts. Ordinary judges in Bulgaria are generally reluctant to refer directly to the Constitution and the ECHR – their jurisprudence tends to be more formalistic, refusing to provide detailed reasoning and to stay close to the language of domestic legislation. With a few exceptions, the rulings of the CC have also been rather formalistic, refraining from setting standards to be employed in similar cases. Because of this, fundamental standards of rights adjudication in established democracies were not ‘transplanted’ in the jurisprudence of the Bulgarian courts. This has led to very particularistic jurisprudence, and to the possibility of abrupt changes of doctrine. Ultimately, political expediency and other contextual factors have played a significant role in domestic jurisprudence on rights protection. The lack of relatively objective judicial standards has led to unstable jurisprudence of the courts on issues related to rights, and to changes

2

See, for instance, Decision no. 2, 1998 of the Constitutional Court.

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in doctrinal stance that are somewhat ad hoc and difficult to explain. Even if there is an analysis on the basis of a ‘balance’ between public interest and individual rights, it is not explicitly articulated, and it is most likely extremely dependent on the specific details of the case, resulting in significant discretion and lack of predictability. Specific cases have raised other concerns. In interpreting political rights and the right to association in a particular case, the Constitutional Court developed what could be called a ‘militant democracy’ attitude. The Constitutional Court exaggerated the danger presented by a specific activist organisation – OMO Ilinden – and its activities, such as public meetings and demonstrations. In its judgment on the constitutionality of OMO Ilinden as a political party,3 the CC interpreted any stated intention to territorial autonomy, federalism, or other type of constitutional reform as a threat to the nation. This served as a basis for banning the activities of the organisation and refusing to register it without requiring a stricter scrutiny of the alleged danger to the country’s territorial integrity and security. The 1991 Constitution itself fuels this ‘militant’ attitude by expressly banning ethnic and religious political organisations,4 despite the endorsement of the principle of political pluralism. It is true, that in their jurisprudence, Bulgarian courts have not directly enforced this ban. But they have used other provisions, such as the ban on organisations threatening the constitutional order and the ‘integrity of the country’, to achieve the same result. In the first ten years after the adoption of the Convention in 1992, the Bulgarian academic community largely neglected the study of ECtHR jurisprudence. There has been some academic interest in the past few years, but it has been limited, and certainly not focused on political rights and the rights of marginalised individuals and minorities. Especially striking is the lack of recent articles on the system of rights protection of the Council of Europe in general. In the major three law journals, Legal Thought (Правна мисъл),5 Contemporary

3 4 5

See Decision no. 1, 2000 of the Constitutional Court. See Article 11(4) of the Constitution of the Republic of Bulgaria. Legal Thought (Правна мисъл) is the leading academic law journal in the country. It is published by the Bulgarian Academy of Sciences. A large part of every issue is devoted to theory of law and constitutional law matters. It is surprising that against this background there is actually very little material on the topic of ECtHR jurisprudence. For the period 1995–2007, there have been only six publications on the topic, and most of them are descriptive introductory articles on the Council of Europe instruments of rights protection. Only one of these is directly relevant to political rights and non-discrimination issues: professor Emil Konstantinov’s 1996 piece on the ECHR and the rights of minorities, but it also follows the general trend of presenting the main legal provisions of basic texts, such as the Convention, the framework convention on minority rights, etc. (E. Konstantinov, ‘The European Convention of Human Rights and the problem of minority rights’, Legal Thought 1 (1996), 94).

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Law (Съвременно право), and Juridical World (Юридически свят) there were between 2002 and 2007 a total of about five articles of interest. In those five years, one of the journals – Juridical World – had no articles at all on the themes of non-discrimination and political rights in the jurisprudence of the ECtHR. This indifference was displayed against the background of a sharp increase in Bulgarian cases in the Strasbourg Court and a rising number of judgments by the ECtHR on such issues. Generally, articles on the topic have approached problems exclusively from a doctrinal point of view, focusing on existing substantive and procedural provisions of domestic law or Council of Europe norms. Articles in academic journals also have avoided as a rule any discussion of ECtHR judgments on cases arising from Bulgaria.6 One of the issues that has raised particular difficulties for domestic jurisprudence is the ban of ethnically-based political parties and parties threatening national security and territorial integrity. On this issue, established academic writing has demonstrated an unwillingness to adopt the standards of the ECtHR. Thus, in Commentary to the Constitution of the Republic of Bulgaria, written by the most authoritative academics dealing with constitutional law in Bulgaria,7 Prof. Tanchev has argued that the most essential criterion for deciding that a party is unconstitutional should be that its character is exclusive. This means that it is impossible for citizens who belong to other communities, different in race, religion, or ethnicity, to become members of the party.8 Furthermore, in discussing the prohibition of parties envisaged by Article 44 of the Constitution, he wrote that the ‘… only restrictions on the freedom of

6

7

8

The rest of the articles explore topics which relate either to the general role and modus operandi of the ECHR, or to certain specific procedural issues of the workings of the Strasbourg court. In the first group we could place the articles by professor Neno Nenovski, (‘European Commission for Democracy through Law at the Council of Europe’, Legal Thought 2 (1998), 106) discussing the role and functions of the European Commission for Democracy through Law (the Venice Commission) at the Council of Europe, the piece by Antonia Angelova (‘Democratic society and restrictions on rights according to ECHR’, Legal Thought 1 (1996), 77) on the legitimate restrictions of rights in a democratic society, and the article by Emil Konstantinov (‘The reform of the ECHR and the development of the European legal space in the humanitarian sphere’, Legal Thought 1 (2002), 59) on the reforms in the ECHR apparatus and the future of the pan-European legal space. In the second category we find again an article by professor Konstantinov (‘Protocol 11 of the ECHR’, Legal Thought 4 (1998), 19), introducing the reader to the institutional and organisational changes entailed by Protocol no. 11 of the Convention. The one exception confirming the rule is an article by judge Panova of the Supreme Court, focusing on the implications for Bulgarian law of the Al-Nashif judgment. B. Balamezov et al., Commentary to the Constitution of the Republic of Bulgaria (Sofia: Siela, 1999). Ibid, p. 66.

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assembly are … the setting of goals against the sovereignty, territorial integrity of the country and the unity of the nation, goals of inflaming racial, ethnic or religious hatred, of violating the rights and freedoms of citizens … ’.9 It is evident from this commentary that these standards for banning a party are potentially more ambiguous and more restrictive for minority parties than ECHR standards. In particular, setting anti-constitutional goals per se cannot be a ground for the ban of a party, contrary to the views transpiring in the commentary. Given this doctrinal ambiguity, it is no surprise that in 2000 the Constitutional Court banned the OMO ILinden party mainly for allegedly harbouring secessionist goals. The general void in the academic literature of reviews of ECtHR jurisprudence has been filled by NGO publications, featuring more academic articles in the journal of Bulgarian Lawyers for Human Rights – an association of human rights lawyers and activists, and the online publication of papers by EURORIGHTS.10 These publications cover the jurisprudence of the Strasbourg Court in some detail, and feature special issues devoted to key topics of rights protection, such as affirmative action and non-discrimination, freedom of speech, and others.11 In most of them, however, there is also some bias towards doctrinal legal analysis, and a lack of socio-legal studies of effects and implementation of legislation. The analytical discourse on the ECtHR jurisprudence in Bulgaria could best be described as divided into two streams. The ‘mainstream’ – which is dominated by senior academics in the most established law schools and the Bulgarian Academy of Sciences – is a discourse of benign neglect, whose main purpose is to introduce the public to certain procedural and substantive elements of Council of Europe human rights law. This discourse is highly descriptive, ‘value neutral’, does not venture into analysis of ECtHR jurisprudence and rarely engages in prescriptive arguments and specific ideas for domestic reform. The second, the ‘human rights – NGO’ discourse on the same topic is 9 10

11

Ibid. p. 145., emphasis added. Association for European Integration and Human Rights, http://www.eurorights-bg.org/bg/ categories/legal_doctrine/legal_doctrine.html. There is a number of papers and reports published on this website, which discuss problems of political rights and non-discrimination. See for instance: M. Ekymdziev, The prohibition of ethnic discrimination: International public law standards and national regulation; M. Ekymdziev, Who and why seek justice before the European Court in Strasbourg; E. Nedeva, An analysis of the domestic remedies for the protection of rights guaranteed by the ECHR; G. Karadzhov, The right to peaceful assembly according to the ECHR. All of these are introductory articles acquainting the reader with the doctrine and some aspects of the practice of the ECtHR. To the above-mentioned NGO publications we should add the monthly publication of the Bulgarian Helsinki Committee “Обектив” (Lens).

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more animated, demonstrates a deeper degree of knowledge and interest in the divergence between Bulgarian domestic laws and Council of Europe standards. Most of the time, this discourse has a specific reform agenda, and a strong policy orientation. Despite the lack of sufficient academic writing in law journals, they remain the main source of in-depth analysis of ECtHR jurisprudence. The Bulgarian academic community has not yet produced monographs on this topic. As to the press, traditionally it covers the more politically sensitive cases, with media coverage increasing with the rise in the overall number of judgments of the ECtHR against Bulgaria. Media coverage, however, is primarily focused on the outcome and the domestic short-term political repercussions of the judgments, and only rarely on the legal analysis and policy consequences. While reporting on individual judgments,12 the Bulgarian press has not developed any form of regular monitoring of the jurisprudence of the Strasbourg Court. Indeed, there is no regular monitoring of the decisions of the Bulgarian Constitutional Court and the other high courts either. Occasionally, online publications, as the Open Society Institute publication Politiki,13 have special issues on constitutional law matters, which indirectly address the implementation of international human rights standards in domestic law.

3. Litigation at the ECtHR Regarding Claims Raising Articles 8-11/14 of the ECHR as well as Claims Involving Vulnerable Groups There has been a steady increase in the number of applications and the number of judgments by the European Court of Human Rights against Bulgaria over the years. The number of applications filed annually was about 400 in the late 1990s. This peaked at 986 in 2004 and then fell to about 900. The number of judgments has also increased substantially. The Court delivered its first judgment against Bulgaria in 1997 and in the following years there were one or two judgments a year. Since 2003, however, the number of judgments has started to increase significantly, reaching 45 judgments delivered in 2006, 53 in 2007, and 60 in 2008. There are many reasons for the growing interest in approaching the ECtHR. The transition from a communist system to a democratic, free market system has raised many new legal and governance issues. The growing democratisation

12

13

The daily newspapers Trud and Sega consistently report judgment of the ECtHR against Bulgaria, while other media would cover them more sporadically. http://politiki.bg/?cy=61&&lang=1.

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of the country has allowed majority prejudices and hostilities toward marginalised groups to be voiced through the political process. Some religious groups as well as ethnic groups have been victims of such prejudices and policies. At the same time, the domestic judicial system was not up to the task of providing protection, leaving the ECtHR as the ultimate guarantor of human rights. National courts traditionally had very limited influence under communism, hearing family and minor property disputes. Broader policy issues were clearly beyond their reach. Among the judiciary, this created a legal culture of suspicion, with judges unwilling and at times even hostile to attempts to involve them in issues too close to politics. This was the dominant attitude after the democratic changes in 1990, making the ECtHR the key judicial institution protecting rights. In the late 1990s alone, and largely because of the increased number of judgments delivered by the European Court of Human Rights, the public and the legal profession started to recognise that courts have a legitimate role in deciding broader policy issues, beyond the immediate interests of the parties directly involved in any particular case. As mentioned, the judgments of the European Court of Human Rights have had an important role in this process, giving practical examples of court judgments with consequences significantly beyond the realm of a single case. Non-governmental organisations (NGOs) have also started to use courts as a forum for addressing broader policy issues. As of 2006, there were a number of policy issues that were addressed through litigation in the domestic courts, such as environmental issues, issues of access to government information and protection of consumer rights. Litigation on such issues has been supported, and in many cases initiated, by NGOs that have championed such issues. Thus, litigation has emerged as an additional tool in their activities. This has also become possible as a result of legislation adopted by the Bulgarian Parliament, including the Access to Information Act, environmental legislation and consumer protection laws. On several occasions, there were two stages; groups lobbied for the adoption of such legislation, and then became the first to take court action on the basis of it. Litigation as an advocacy tool, however, was first used in Bulgaria by several human rights groups in the mid-1990s. Western governments and private donors financially supported these groups, which were not affiliated with any of the existing political parties. The groups’ strategy was devised on the basis of an understanding that Bulgarian courts were not a reliable forum to raise human rights concerns and that recourse to the European Court of Human Rights should be taken as early as possible. Over the years, these groups took up various human rights issues, some of them related to basic political rights, while others were related to fair trial and other procedural issues. The approach

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of those groups in supporting and initiating litigation was not always the result of a careful strategy laid out in advance. Quite often, they were reacting to issues and problems, taking cases on an ad hoc basis, by using their general understanding of their priorities. Such decision-making reflected the priorities of those organisations, and their reading of the human rights situation and the extent to which individual cases were representative of more general issues and concerns. Most of the cases brought before the European Court of Human Rights were not related to political rights. A significant number did not raise issues larger than the individual case. Some of the cases that these groups brought to litigation, however, represented the most important civil and political rights issues in the mid-1990s, such as freedom of religious rights of Muslims and minority Christian religions, and freedom of assembly and association of ethnic Macedonians. Another issue that has been addressed through litigation was the use of excessive force by police against Roma. In the early 1990s, human rights groups identified the situation of Roma as particularly troubling. Monitoring revealed growing problems of unemployment, lack of access to education and other services provided by the government. Public attitudes were clearly hostile and becoming even more negative. Human rights groups working on those issues started to monitor them in a more consistent manner, to document and report cases of violation of basic rights of Roma. The use of excessive force on arrest, ill-treatment during detention and interrogation and unlawful use of firearms were common among the findings. Investigation of such cases and prosecution of the perpetrators, such as police officers, was practically nonexistent. The very low and marginalised social status of the victims, the lack of legal aid and the hostile attitudes of the investigation authorities led to virtual impunity for such crimes. Initial efforts by human rights groups to deal with the issue through the domestic system were completely unsuccessful. Investigations dragged on for many years, to be eventually closed for lack of evidence. The seriousness of the human rights violations in those cases, resulting in grave injuries and in some cases deaths, made those cases particularly appropriate for litigation in the European Court of Human Rights, which had well-established case law on the right to life and prohibition of torture. Efforts to challenge widespread discrimination against Roma through litigation were eventually focused on these cases. An added component was the argument that the ill-treatment or unlawful use of lethal force was motivated by the victims’ ethnicity. This complaint was formulated under the anti-discrimination provision of the Convention – Article 14. In developing that approach, a regional NGO based in Budapest, the European Roma Rights Centre, played a crucial role.

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It was to a lesser extent that other cases of violations of rights of individuals from vulnerable groups were the results of a deliberate strategy. Rather, they were the result of a straightforward reaction to violations of basic rights and the determination of the victim to receive redress. These included cases of violations of the religious rights of Muslims and other minority religious groups, as well as cases raising issues of freedom of association. Again, most of these cases were supported by human rights groups, providing legal representation both in the domestic courts and the ECtHR. The initiative for the cases, however, was coming from the victims. A larger number of cases before the ECtHR built up. However, this was not the result of a consistent effort to put pressure on the government, but rather the result of repeated similar violations because of the government’s refusal to change its policies. The cases of ethnic Macedonians were a good example of such a development. A special category of cases was those involving Jehovah Witnesses. These cases differed from the rest both in terms of the level of legal support for victims and in the approach of pursuing a broader objective beneficial to the group, rather than simply to the individual victim. The Jehovah Witnesses had a well-organised legal team of foreign lawyers, supporting litigation in the ECtHR. Unlike other litigants, individual applicants had less of a role in Jehovah Witnesses cases, important decisions being made by the leadership of the religious group. This had the effect that the goals of litigation had not merely been to receive compensation and publicity, but also to change government policy. The preferred strategy of Jehovah Witnesses was to settle cases if the government committed itself to amending legislation. This strategy was pursued very successfully towards improving legislation on alternative, nonmilitary service.

4. ECtHR Jurisprudence in the Cases under Review Cases involving vulnerable and minority groups corresponded to four broader human rights issues, present throughout the 1990s. These included attempts by successive governments to keep under control the religious activities of Bulgarian Muslims, state efforts to stop the spread of non-traditional religious groups such as evangelicals or Jehovah’s Witnesses, and to deny ethnic Macedonians in Bulgaria the right to express their identity and to organise, as well as the widespread discrimination and more particularly racist violence against Roma. In two of the cases pertaining to the religious activities of Muslims, the central issue was the legitimacy of state interference in the religious affairs of the

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community, and more specifically in the election of religious leaders. In the case of Hasan and Chaush v. Bulgaria the issue was the refusal of the Bulgarian Government to recognise a Chief Mufti and the religious leadership elected at a conference representing all Muslims in Bulgaria. The ECtHR ruled that there had been a violation of Article 9 of the Convention, the freedom to manifest religion, because domestic law on registering the religious leadership of a recognised religious community was unclear and allowed authorities to be arbitrary in exercising their powers. From a legal perspective, the case of Supreme Holy Council of the Muslim Community v. Bulgaria was identical, except that this time it was the rival religious leadership that had been refused registration by the Government. The ECtHR again found a violation of Article 9 ECHR. It reached this conclusion on the basis of the same reasoning, namely that the domestic law did not provide clear standards. Two other cases raising issues related to the activities of Muslims were the case Al-Nashif and Others v. Bulgaria and Musa and Others v Bulgaria. In both cases the political issue was control over funding for religious activities coming from countries in the Middle East. Both Mr. Al-Nashif and Mr. Musa were representing donors providing funding for Islamic religious training, building of mosques and other religious activities. In an effort to establish its authority over such activities, the government deported in 1999 and 2000 Mr. Al-Nashif and Mr. Musa, respectively. Although the ECtHR did not examine those two cases under Article 9 ECHR, but under Article 8 (respect for one’s private and family life) ECHR, the deportations of both Mr. Nashif and Mr. Musa clearly had been related to their Muslim religious activities. In its judgments, the ECtHR held that the legislation on the basis of which they were deported did not meet basic standards of the rule of law. The Court also held that the refusal of the Bulgarian courts to hear the cases had been violations of the right to an effective remedy. Similar problems of unjustified government interference in religious freedom were raised by other Article 9 ECHR cases, where the victims were nontraditional religious groups or individual members belonging to these groups. Throughout the 1990s, the number of non-traditional religious groups in the country increased, with some launching large campaigns to recruit new members. As a rule, those religious groups were supported by religious organisations based abroad. Their sometimes assertive recruitment strategies, the lack of a tradition of religious pluralism and a hostile reception among some political parties and the media created an environment hostile to such religious groups. As a result, cases were brought to the ECtHR by some evangelical groups, but the largest number of cases was brought by Jehovah’s Witnesses, claiming violation of freedom of religion.

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The ECtHR cases raised various legal issues. The most fundamental was the refusal by the competent authority to register a religious group.14 The legal issue in those cases was whether the Government could have unfettered discretion in deciding whether a religious community is a legitimate religion, whether it could be granted or denied legal status, and registered as a legal entity. Other cases raised complaints about the granting of custody rights to one of the parents, as the religious affiliation of the other parent was considered dangerous for the child by the court,15 denial of residence permits to foreigners,16 and a criminal conviction for refusal to perform military service.17 A number of such cases are still pending, with some of them being declared admissible. Some of them also raise additional issues, like dismissal of a school employee for membership in an evangelical group.18 In many of these cases, the parties reached an amicable settlement following the admissibility decision. Following such amicable settlements, national authorities allowed for the registration of religious groups,19 reconsidered parental rights, gave amnesty to those convicted for conscientious objection, and amended the law on alternative military service. The granting of amnesty and the legislative amendments were the result of the admissibility decision in Stefanov v Bulgaria and four other similar cases in the ECtHR. An important theme in cases under review by the ECtHR were issues of prohibition of political parties, refusals to register a party or an organisation, and restrictions on public gatherings and rallies. Five out of the total of six cases under Article 11 of the Convention relate to the controversy around a small group of Bulgarian citizens identifying themselves as ethnic Macedonians. This group was systematically denied registration by the Bulgarian courts until 1999. In the meantime, the authorities banned public meetings and activities organised by supporters of their organisation, OMO Ilinden. Most prominently, they banned the annual celebrations of one of their historical figureheads – Yane Sandanski, and other political rallies in Blagoevgrad and Sofia. In 1999, the party was granted registration by an ordinary court, only to be banned by the Constitutional Court in 2000, on the grounds of presenting a threat to national security and the territorial

14

15 16 17 18 19

See among others: EComHR, Christian Association Jehovah’s Witnesses v. Bulgaria (no. 28626/ 95; 3/7/1997), 9 March 1998. EComHR, M.M v. Bulgaria (no. 27496/95), 9 July 1997. ECtHR, Lotter and Lotter v. Bulgaria (no. 39015/97), 19 May 2004. ECtHR, Stefanov v. Bulgaria (no. 32438/96), 3 May 2001. ECtHR, Ivanova v. Bulgaria (no. 52435/99), 12 April 2007. EComHR, Christian Association Jehovah’s Witnesses v. Bulgaria (no. 28626/95; 3/7/1997), 9 March 1998.

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integrity of the country. In five judgments, the ECtHR ruled that the various actions of Bulgarian authorities (i.e. refusing to register the OMO Ilinden organisation, and banning public rallies) violated Article 11 of the Convention. As to the outlawing of the political party by the Constitutional Court in 2000, the ECtHR held that there was no evidence that the party was promoting or supporting any undemocratic policies or activities. Its prohibition was thus disproportionate and in violation of the Convention. Cases of racially motivated violence against Roma, mostly by the police, were filed under Articles 2 and 3 of the Convention, the right to life and prohibition of torture, and under Article 14 ECHR, the prohibition of discrimination. A significant number of such cases were litigated and the first judgment by the European Court of Human Rights was delivered in 1998.20 It was followed shortly by a number of other judgments, where the Court found violations of the right to life or the prohibition of torture.21 In those first judgments, however, the Court either refused to consider the discrimination claims or rejected them explicitly. The refusal to find a violation was based on a legal standard developed by the Court requiring proof beyond reasonable doubt that the racial identity of the applicants had been the reason for their illtreatment. The applicants based their claim of discrimination on reports describing widespread ill-treatment of Roma. The argument developed on the basis of these reports was that there was a widespread pattern of ill-treatment of Roma by the police authorities and that there was no reasonable explanation other than discriminatory attitudes based on race. In February 2004, the ECtHR held that the killing of two Roma men by military police was not only a violation of their right to life, but also a violation of the right not to be discriminated against on the basis of ethnicity.22 The judgment was later reviewed by a Grand Chamber of the Court and although the standard under Article 14 ECHR was reshaped, the Court still confirmed the finding of a violation of Article 14 ECHR. It held that in a situation where Roma apparently ran a high risk of being ill-treated, the authorities were obliged to investigate whether race was a factor in the ill-treatment, and a failure to investigate a possible racist motive meant a violation of Article 14 ECHR. Since then, the ECtHR has held in one more case that the failure of the 20 21

22

ECtHR, Asenov v. Bulgaria (no. 42026/98), 15 July, 2005. ECtHR, Anguelova v. Bulgaria (no. 38361/97), 13 June 2002; ECtHR, Velikova v. Bulgaria (no. 41488/98), 18 May 2000; ECtHR, Ognyanova and Choban v. Bulgaria (no. 46317/99), 23 February 2006; ECtHR, Osman v. Bulgaria (no. 43233/98), 16 February, 2006; ECtHR, Tzekov v. Bulgaria (no. 45500/99), 23 February, 2006. ECtHR, Nachova and Others v. Bulgaria (no. 43577/98; 43579/98), 6 July 2005.

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authorities to investigate and prosecute incidences of racially motivated violence, led to a violation of Article 14 of the Convention. In this case, however, the racist violence was perpetrated by a group of skinheads, who assaulted and killed a Roma.23 A completely different issue was raised in M.C. v Bulgaria. In that case the applicant complained that the refusal of the Bulgarian prosecution authorities to prosecute two young men who allegedly had raped her, violated her Article 3 ECHR and Article 8 ECHR rights. The ECtHR held that there was indeed a violation of both rights, as the decision of the prosecution to drop charges against the suspects was apparently based on the premise that lack of active physical resistance by the alleged victim of rape, was proof that she had consented.

5. Conclusion The judgments of the ECtHR on Bulgarian cases have undoubtedly enhanced the protection of basic rights of vulnerable groups. In a large number of cases where the national justice system has either contributed to the violation of basic rights or failed to remedy the violations, the ECtHR has provided a remedy. From a broader perspective, the jurisprudence of the ECtHR has had a notable impact on the Bulgarian legal system, and, more broadly, on Bulgarian legal culture. In response to judgments by the Court, legislative amendments have been adopted on a number of issues. With respect to minorities these include amendments to legislation on alternative military service and legislation on registration of religious groups. While these changes did not resolve the issue of excessive governmental discretion and intervention in the exercise of religious freedoms, they were still an improvement. Similarly, the ECtHR’s judgments have also had a noteworthy effect on the domestic court’s case law. Similarly to the legislative amendments, the changes of domestic case law were not sufficiently thorough to fully remedy the underlying causes of rights violations, but there were examples of clear improvements. Following the Al-Nashif v Bulgaria judgment in 2002, the Bulgarian Supreme Administrative Court allowed for the first time judicial review of decisions to deport foreigners considered to be a threat to national security. Changes to Government policies have also been noted. Following the first OMO Ilinden case, the Government declared to the Committee of Ministers a change of policy, allowing their public gatherings.

23

ECtHR, Angelova and Iliev v. Bulgaria (no. 55523/00), 26 July 2007.

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While these changes were clearly positive, as a rule they were slow and usually half-hearted. Courts continued to have difficulties introducing a balancing test in their case law, reviewing the proportionality of interference with basic rights. This was the reason for finding separate violations in many of the religious cases. The courts were still reluctant to move away from the strict legality judicial review doctrine, which is well embedded in their jurisprudence. While the Supreme Administrative Court took on itself to apply directly the Convention, following the Al-Nashif judgment, ruling that there should be judicial review, the quality of that review is not very high. Domestic courts still refuse to order the police to present the evidence on the basis of which deportation of foreigners is ordered, which to a large extent deprives judicial review of effectiveness. And the change in policy towards OMO Ilinden has been half-hearted, with the Bulgarian authorities continuing to impede their public rallies, even if not banning them outright, and refusing to register the organisation. There have been no legislative or other amendments with respect to racist violence, and no effort to improve the effectiveness of police investigations and prosecutions of such incidents in the future. From a broader political perspective, the role of the ECtHR in protecting the rights of marginalised individuals and minorities remains ambiguous. In a famous article, Stephen Holmes24 has argued that sometimes the constitutional stability of a polity depends on keeping certain problems off the social agenda. The rules of avoiding a conclusive resolution, or keeping silence on specific issues are known as “gag rules”. It is probably fair to describe the ambiguous attitude towards the rights of minorities and their representation as a gag rule in Bulgaria’s constitutional context: the main political players were committed to avoiding these concepts becoming the subject of major discussions and problematic issues. What is surprising is that not only politicians have obeyed the gag rule, but so too has the academic community. This may partly explain the lack of academic writing on minority rights and minority representation – issues of key importance for the Bulgarian community. It is interesting to note that academics are more inert than politicians, although politicians now seem to be questioning the “gag rule” consensus of the first fifteen years of transition, academics – for better or worse – do not seem to be moving in the same direction. The political consensus of the transition period on bracketing out minority rights and representation from public discourse is probably the major reason for the incomplete domestication of ECHR standards in Bulgarian constitutionalism. As result of the growing number of

24

S. Holmes, Passions and constraint: On the theory of liberal democracy, Chapter 7, (Chicago: University of Chicago Press, 1995).

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ECtHR judgments on Bulgarian cases over the past several years, the silence on some issues concerning the rights of individuals from minority groups has been partially broken. In spite of this positive development, institutional responses to many issues have been inadequate – or there have been no responses at all. Another important aspect of the ECtHR’s impact on Bulgaria is the influence on public attitudes towards human rights protection in general and the rights of minorities and marginalised groups in particular. The general public has a somewhat ambiguous attitude to the ECtHR. On the one hand, the ECtHR enjoys wide public support, by and large because of the very low trust in the domestic system of judicial protection. This is no surprise, given that in the past decade Bulgarians have been much more inclined to trust external institutions (such as the European Union) more than domestic public institutions. To a great extent, the positive attitude towards the ECtHR are also determined by the increasing number of judgments on property cases, a matter where the Strasbourg court is perceived to be the last guarantor of just jurisdiction. On the other hand, in regard to some Strasbourg court judgments concerning minority issues the situation is completely different. In cases such as those brought to the ECtHR by OMO Ilinden, the general public approves of the Bulgarian courts’ judgments that were found to violate the Convention. In spite of this ambiguity, the ECtHR has an undoubtedly positive influence on public attitudes that might enhance the rights protection of the individuals from marginalised and vulnerable groups. However, changing public attitudes is a long and difficult process that will be determined by many additional factors.

Chapter Four Protecting Individuals from Minorities and Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in France Emmanuelle Bribosia, Isabelle Rorive and Amaya Úbeda de Torres 1. Introduction The history of Human rights in the French legal order started well before the creation of the European Convention of Human Rights (hereafter, ECHR). The famous Declaration of 1789 retains full effectiveness today and forms part of the country’s constitutional norms (bloc de constitutionnalité). The preamble of the 1958 Constitution states expressly that the 1789 Declaration and the human rights provisions enshrined in the former 1946 Constitution is part of positive law. Not all these rights and freedoms are, however, framed in a precise manner and some provisions amount more to ‘declarations of intent’ than to real positive rules.1 Therefore, the constitutional mandatory power of the legislator to make human rights effective is crucial.2 Despite this propitious background, the relationship between France and the European Convention of Human Rights has been ambivalent. Significant resistance from political and judicial authorities towards the Convention has been one of the consequences of the long tradition of human rights protection, which amongst other things reflected in efforts deployed to promote human rights at the international level. A striking example of this confrontational French position towards the Strasbourg-based system of rights review is the late ratification of the European Convention and acceptance of the European Court of Human Rights’ (hereafter, ECtHR) contentious jurisdiction. Despite the fact that France promoted and actively participated in the

1 2

B. Stirn, Les libertés en questions (Paris: Montchrétien, 2006), 6th ed., p. 11. Article 34 of the 1958 Constitution provides that legislative action shall establish ‘citizens fundamental guarantees necessary to exercise public freedoms’.

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elaboration of the European Convention, it did not ratify the Convention until 3 May 1974.3 The ratification of the Convention failed on several occasions and it only succeeded after strong pressure.4 Along the same lines, France only accepted the jurisdiction of the European Court of Human Rights on 30 May 1981.5 Nowadays, the official political position seems to have shifted and is largely supportive of the Strasbourg system.6 However, the judicial and doctrinal attitudes towards the European Court’s jurisprudence have not been devoid of ambiguity. At times, there have been calls for withdrawal from the system, as some of the ECHR’s condemnations were considered to be ‘superficial’ because they ignored the French legal and judicial tradition.7 Eventually, such reluctance has not prevented France from being a source of a large number of petitions. France faces an important number of individual complaints and at times has even accounted for the biggest share of the Strasbourg institutions’ case load.8 To a certain extent, the ‘attractiveness effect’ of French being one of the two official languages of the Court and the location of the ECtHR in Strasbourg account for the large number of complaints filed.9 Awareness of human rights and knowledge of the ECtHR’s work are also key factors explaining why, in 2004, France was one of the five states most condemned in Strasbourg. France was a party in 10,45% out of the global number

3 4

5

6

7

8 9

Decree 74–360 publishing the ECHR adopted on 3 May 1974, JO, 4 May 1974, p. 4750. L. Burgorgue-Larsen, ‘La France et la protection européenne des droits de l’homme’, Annuaire français des relations internationales (2005), 598. As to the reasons explaining the long period of distrust towards the ECHR in France, see E. Lambert Abdelgawald and A. Weber, ‘The reception process in France and Germany’, in Keller and Stone Sweet (eds.), A Europe of rights: The impact of the European Convention on Human Rights on national legal systems (Oxford: Oxford University Press, 2008), pp. 107–164. France ratified all additional protocols to the Convention, except Protocols nos. 12 and 13, the latter being in the process of ratification. The accession of the French Jean-Paul Costa to the presidency of the European Court of Human Rights in January 2007 is likely to foster further ratifications, as it was the case under the presidency of Judge René Cassin. See for instance the Kress case (no. 39594/98) decided by the Grand Chamber on 7 June 2001 and V. Haïm, ‘Faut-il supprimer la Cour européenne des droits de l’Homme?’, Dalloz 37 (2001), Doctrine, 2988. On the same line, see the opinion of the Council of State judge, B. Genevois, quoted by R. de Gouttes, ‘Les ambivalences de la jurisprudence de la Cour européenne des droits de l’homme en 2001’, in CREDHO cahier no. 8, La France et la Cour EDH. La jurisprudence en 2001 (Brussels: Bruylant, 2002), p. 19. For detailed figures, see Lambert Abdelgawald and Weber, ‘The reception process’, p. 25. Opinion expressed by Mrs Tissier, French agent at the Ministry of Foreign Affairs, Government agent before the European Court of Human Rights (interview held in Paris on 23 February 2007).

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of judgments issued (landing in third position after Turkey and Poland, a place it left to Ukraine and Russia in 2005).10 Legal reform has often followed violations of human rights highlighted by the Court and, in some cases, preceded the Court’s rulings to avoid future condemnation. The right to a fair trial continues to be, as for many other countries, the most frequently invoked right and important reforms have been implemented in this area. The case law concerning Articles 8 to 11 (combined or not with Article 14) of the ECHR is at the heart of our study. These provisions have been frequently used by claimants from minorities or other vulnerable groups to defend their views and interests. The rights enshrined in these provisions have received specific protection in the French legal order, and to some extent, in the 1789 Declaration. They are emblematic of the balance that has to be struck between the protection of human rights and other (national) interests in a democratic society. This chapter is divided into three main parts. First, it offers background information on the status of the ECHR in the French legal order, the judicial control mechanisms aimed at protecting human rights and the binding force of the Strasbourg Court’s case law. It then discusses key issues concerning minorities and vulnerable groups in France, which have given birth to an important body of case law in Strasbourg regarding the protection of foreigners, religious minorities, equality and non-discrimination, as well as the protection of ‘non-majoritarian’ views (part II). Subsequently, this paper focuses on litigation trends in the European Court of Human Rights in these different fields (part III) and gives an account of Strasbourg’s jurisprudence.

2. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship The status of the ECHR in the French legal order and its direct effect are not controversial. In accordance with the monist tradition, upon ratification, the ECHR was automatically integrated in the French legal order. Whereas it has prevailed over statutory law pursuant to Article 55 of the Constitution,11 the Supreme Administrative Court (Conseil d’Etat – Council of State) and the 10

11

Information obtained from the ECHR Annual survey of activities, 2005 (http:/www.echr. coe.int). Article 55 of the Constitution states that ‘Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party’.

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Supreme Civil Court (Cour de cassation – Court of Cassation) have ruled that the ECHR could not take precedence over the Constitution.12 The jurisprudence of the Constitutional Council (Conseil Constitutionnel) is more qualified, as a delicate distinction is made between essential constitutional norms pertaining to the principle of sovereignty, which prevail over international law, and other constitutional provisions which could be superseded by the latter.13 Conversely, some authors have called for an ‘absolute superior status’ of international law, including the ECHR, over domestic law. This is in line with the case law of the European Court of Human Rights, which considered a piece of legislation that the French Constitutional Council had previously validated as complying with the Constitution, to be in breach of the Convention.14 Besides the supremacy of the ECHR upon statutory law, administrative and civil judges recognise its direct application.15 Any court is entitled to apply the Convention even contra legem (i.e. against the legislation in force or contrary to any administrative or judicial practice) and can hold the French state liable for a violation of the Convention. This derives from a 2007 revolutionary ruling, the Gardedieu case, where the Council of State for the first time explicitly decided that the mere adoption of a statute contrary to an international convention is per se illicit and that the state can be held accountable for pecuniary damage on this basis.16 Turning to judicial control mechanisms to protect human rights in France, submissions for a legal settlement can either be made at the level of constitutional justice, namely the Constitutional Council, or in ‘ordinary’ jurisdictions supervised by two supreme courts, i.e. the Court of Cassation for civil and criminal courts and the Council of State for administrative courts. Following a 1975 decision of the Constitutional Council,17 ordinary judges are empowered to set aside legislation which is incompatible with international treaties and

12

13

14

15

16

17

CE Ass., 30 October 1998, Sarran, Levacher et Alii, Rec. Lebon, p. 368 ; Cass. Ass. pl., 2 June 2000, Fraisse, Bull. no. 4. As pointed out by F. Hamon and M. Troper after the Constitutional Council ruling in the Reseda case (5 May 1998, no. 98–399 DC), in Droit constitutionnel (Paris: LGDJ, 2003), p. 701. See, for instance, ECtHR (GC), Zielinski and Others v. France (nos. 24846/94; 34165/96; 34173/96), 28 October 1999. Cf., G. Cohen-Jonathan, preface to F. Lazaud, L’exécution par la France des arrêts de la Cour européenne des droits de l’homme (Presses Universitaires d’AixMarseille, 2006), p. 11. For the administrative courts, see CE, 27 October 1978, Debout, Rec. Lebon, p. 395; for the judicial courts, see Cass. Civ. I, 18 May 1989, Bull. no. 198. CE Ass., 8 February 2007 (no. 279522), Revue Française de Droit Administratif (2007), 361 with the observations of L. Derepas. CC, 15 January 1975 (no. 74–54 DC), Interruption volontaire de grossesse (IVG).

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can therefore efficiently defend the primacy of the ECHR.18 As to constitutional justice, it should be kept in mind that the French Constitutional Council (Conseil Constitutionel) is not a constitutional court modelled upon its wellknown German or Spanish counterparts. The Constitutional Council used to review statutes only in abstract, prior to their entry into force and, until recently, individuals had no right to ask for a scrutiny of a legislative act.19 Nevertheless, its narrow mandate did not prevent it from becoming an original and often effective human rights guardian. While it traditionally refused to exercise an explicit control of the conformity of legislative acts with the ECHR, for years it did so in a discreet manner.20 The institutional reform adopted in July 200821 substantially changed its mandate. Faced with a legislative provision in breach of the rights and freedoms enshrined in the Constitution, any court, under the supervision of the Council of State and the Court of Cassation, which act as filters in the procedure, is entitled to bring a referral for a preliminary ruling before the Constitutional Council.22 The practical influence of this reform remains to be seen, namely whether ordinary courts will favour the new system over the less centralised one developed in the mid 1970s. Under the latter, ordinary courts were empowered to set aside legislative provisions contrary to human rights enshrined in the ECHR or other international conventions.23 As far as the binding force of the Strasbourg Court case law is concerned, especially as regards compliance by France to judgments issued against other

18

19

20

21

22 23

As to the first exercise of such a prerogative, see Cass. Ch. Mixte, 24 May 1975, Café Jacques Vabre, Bull. no. 4 (for EC law); Cass. Crim., 27 November 1966, Commandos anti-IVG, Bull. no. 431(for the ECHR); CE Ass., 20 October 1989, Nicolo, Rec. Lebon, 190 (for EC law); CE. Ass., 21 December 1990, Confédération nationale des associations familiales catholiques et autres, Rec. Lebon, 369 (for the ECHR). Traditionally, only the President of the Republic, the Prime Minister, the President of the Senate, the President of the Congress, and deputies and senators had a direct access to the Constitutional Council. L. Burgorgue-Larsen, ‘L’autonomie constitutionnelle aux prises avec la Convention européenne des droits de l’homme’, Revue belge de droit constitutionnel 1 (2001), 62. For recent developments, see E. Bribosia, ‘Dialogue entre la Cour européenne des droits de l’homme et les cours nationales: regards croisés. Un dialogue sous l’influence des terreaux juridiques nationaux’, in Bribosia, Scheeck and Úbeda de Torres (eds.), L’Europe des cours. Loyauté et résistances (Bruxelles: Bruylant, 2009), in press, section B.1.b. Loi constitutionnelle de modernisation des institutions de la Vème République [Constitutional Act modernising the institutions of the Vth Republic], 23 July 2008 (no. 2008–724), JO, 24 July 2008. Article 61(1) of the Constitution. E. Bribosia, ‘Un dialogue sous l’influence des terreaux juridiques nationaux’, in press, section B.1.b.

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countries, the judicial attitude has changed over time. In short, it has evolved from ‘neutralising interpretation’ (or national resistance) towards ‘casual conformity’ and more recently, ‘constructive interpretation’.24 Condemnations do not seem therefore to be necessary to change a former practice in France, as there exists an a piori influence of the Strasbourg Court’s case law and the development of a preventive approach by national judicial authorities at least in specific areas. The European Court’s decisions and judgments have become in these cases a source of direct guidance, preventing new violations, for instance in relation to the recognition of welfare rights. There are several recent examples of this preventive effect of ECtHR case law. In the Koua Poirrez case,25 the interaction between French domestic courts and the ECtHR went very far. The Court of Cassation, which had denied Mr Poirrez his right to a social allowance on account of his foreign nationality,26 modified its case law dramatically only one year after its first ruling. In a case concerning a Turkish national who had been denied a non contributive allowance, the Court of Cassation declared motum propium a violation of Article 14 ECHR (prohibition of discrimination) combined with Article 1 of Protocol no. 1 to the Convention (property).27 This was a ground-breaking judgment; the French Court of Cassation extended the right to a non contributive allowance in 1999, before any condemnation was issued by the Court of Strasbourg and even before the European Court had decided on this right at that time yet. The ECtHR quoted this domestic judgment in order to sustain its arguments in the Koua Poirrez case, producing a ‘boomerang effect’ and getting inspiration from national case law.28 As part of this evolution, in 2004, the Constitutional Council, traditionally the most reluctant of all French courts towards Strasbourg jurisprudence, expressis verbis referred to a European judgment in order to reinforce its stance: the famous Leyla Sahin v. Turkey case.29 However, it critically ‘adapted’

24

25 26 27 28

29

F. Sudre, ‘A propos du dialogue des juges et du contrôle de conventionnalité’, Etudes en l’honneur de Jean-Claude Gautron. Les dynamiques du droit européen en début du siècle (Paris: Pedone, 2004), pp. 207–224. Cf. L. Burgorgue-Larsen, ‘La France et la protection européenne des droits de l’homme’, AFRI (2005), 609. ECtHR, Koua Poirrez v. France (no. 40892/98), 30 September 2003. Cass. Soc., 22 January 1998, Koua Poirrez, JCP G (1998), II, 1011. Cass. Soc., 14 January 1999, Bozkurt, JCP (1999), II, 10082. Ph. Frumer: ‘La discrimination à l’égard des étrangers en matière de prestations sociales (arrêt Koua Poirrez du 30 septembre 2003)’, in CREDHO, La France et la Cour européenne des droits de l’homme. La jurisprudence en 2003 (Brussels: Bruylant, 2005), p. 166. CC, 19 November 2004 (no. 505–2004 DC), Traité établissant une Constitution pour l’Europe. The Conseil Constitutionnel refers to the Chamber’s ruling in Leyla Sahin v. Turkey (no. 44774/98, 29 June 2004) which was not definitive as it was pending before the Grand Chamber at the time (Cf. Burgorgue-Larsen, ‘La France et la protection européenne’, 610–11).

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the ruling to the French context, so as to indirectly manifest its approval of domestic legislation forbidding students from wearing any conspicuous religious symbols at school.30 The Constitutional Council had not had the opportunity to pronounce itself on the issue. In fact, it referred to the European Court’s Chamber judgment Leyla Sahin while deciding on the compatibility of the French Constitution with the Treaty establishing a Constitution for Europe. More than an admission of the authoritative force of Strasbourg jurisprudence, the major purpose of its reference to the Leyla Sahin case appears to have been a reinforcement of the French secularisation principle. This makes it possible to argue that despite a growing ‘positive attitude’, resistance towards the European Court’s case law may still arise when French legal tradition or sensitive political issues are at stake.31 In such cases, persistent condemnations remain necessary for reforms to be made. As to litigation against France before the Strasbourg Court concerning minorities and vulnerable groups, one of the main controversial fields relates to the protection of foreigners and the growing concerns stemming from the adoption of new legislation to ensure national security and fight against terrorism.32 Another set of complaints concern religious minorities, which are strongly framed by one of the French Republic’s founding principles: laicism

30

31

32

Loi encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics, 15 March 2004 (n° 2004–228) JO, 17 March 2004. Let’s recall the controversial Kress case (ECtHR, Kress v. France (no. 39594/98), 7 June 2001), in which the participation of an advocate general (commissaire du gouvernement) during the deliberation of the Council of State was considered to be in breach of the principle of impartiality and equality of parties, enshrined in Article 6 of the ECHR. The Council of State criticised the excessive formalism required by the ECtHR and implementation of the ECtHR judgment was extremely difficult. The solution which was eventually found was to allow a party to oppose the advocate general’s presence in deliberations. This arguably reconciles the Court’s theory of objective impartiality with the French legal tradition. See H. Tigroudja, ‘Les difficultés d’exécution de l’arrêt de la Cour européenne des droits de l’homme du 7 juin 2001 rendu dans l’affaire Kress c. la France’, RTDH 58 (2004), 353. Following this judgment, the President of the Council of State issued two guidelines on 23 November 2001 and 13 November 2002 establishing that the advocate general (commissaire du gouvernement) could attend but not participate in the deliberations (‘mute witness’). Legislation was adopted in this sense (Administrative Justice, Article R. 731–7). The Secretariat of the Committee of Ministers considered, however, that this was not a correct implementation of the Kress case (CM/Inf(2003)15E, 31 March 2003). In the Grand Chamber decision Martinie v. France, France was again condemned on the basis that any passive or active participation of the commissaire du gouvernement in the deliberations is infringing Article 6 of the ECHR (no. 58675/00, 12 April 2006). See infra, paragraph 3.

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(laïcité).33 Secularisation being interpreted as a principle very close to active neutrality or ‘neutralité à la française’,34 has specific implications for believers. The Act on separation of the State and the Churches of 9 December 190535 enounces the principle of separation. It means that the French Republic does not ‘recognise, pay or give any kind of financial aid to any religion’ (Article 2), and determines the double nature of the principle of secularisation in recruitment and in the services provided.36 The impact of constraints resulting from secularisation on Muslims and other religious individuals and groups has been pointed out in the social and political science literature.37 It has been highlighted that, in a fundamentally secular public space, it is more difficult for religious groups and minorities to preserve their identities and culture. The lack of visibility of religious groups in institutional space and the lack of associative structures might explain the low scale of litigation concerning religious minorities in France.38 The principle of ‘neutrality’ also requires the absence of religious symbols in some public spaces (i.e. schools, justice chambers, etc). The controversial Act on Secularisation and Religious Symbols, better known as the ‘Islamic veil Act’ or the ‘Stasi Act’ (named after the former Republic Mediator), forbids any kind of external manifestation of religion in public schools, a measure mainly addressed to students. Professors also need to comply with neutrality requirements generally imposed on public administration.39 A second set of issues regards the scope of protection granted to freedom of expression, which is a traditional right deeply embedded in French legal culture. Recognised in Article 11 of the 1789 Declaration, the freedom of expression is a multifaceted right. The freedom of the press was not expressly and widely protected in France before the Act of 29 July 1881. Since then, any written publication is protected against censorship and ‘opinion crimes’ have

33

34 35 36

37 38

39

See M. De Salvia, ‘Liberté de religion, esprit de tolérance et laïcité dans la jurisprudence de la Cour européenne des droits de l’homme’, in Libertés, justice, tolérance. Mélanges en hommage au Doyen Gérard Cohen-Jonathan, vol. I (Brussels: Bruylant, 2004), pp. 591–606 ; J.-F. Flauss, ‘La Commission européenne des droits de l’homme au secours de la laïcité de l’enseignement public, l’affaire Karaduman c. Turquie’, Les Petites Affiches 142 (1993), 11–13. J. Morange, Droits de l’homme et libertés publiques, 5th edition (Paris: PUF, 2000), p. 207. Loi de séparation des Eglises et de l’Etat, JO, 11 December 1905. Forbidding the refusal of candidates because of their religious beliefs or the excessive externalisation of such beliefs. O. Roy, La laïcité face à l’Islam (Paris: Seuil, 2005). V. Amiraux, ‘Speaking as a Muslim: avoiding religion in French Public Space’, in Amiraux and Jonker (eds.), Politics of Visibility. Young Muslims in European Public Spaces (Bielefeld: Transcript Verlag, 2006), pp. 21–52. Act of 15 March 2004 (n° 2004–228), referred to in footnote 30.

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disappeared.40 Only civil judges are competent to stop a posteriori the publication of a book or a newspaper based on a complaint. However, two types of publications have traditionally faced restrictions: foreign publications and publications for minors. Concerning the ban on foreign publications, France was condemned in Ekin41 and changed its legislation subsequently, attracting the attention of many legal scholars.42 On 1 July 1972, with the so-called loi Pleven,43 provocation of hate and discrimination, slander and racial insults were criminalised. On 13 July 1990, the National Assembly adopted another piece of legislation, the loi Gayssot,44 designed to punish any racist, anti-Semite or xenophobe activity’. Aimed to punish those challenging the Second World War genocide against Jews, the law amended the 29 July 1881 Act on the freedom of the press and the criminal code.45 The fight against the denial of the holocaust in France has led to important case law before the Strasbourg Court concerning the limits to freedom of expression, changing dramatically the jurisprudence of the Court of Cassation.

40

41 42

43 44

45

However, in case of slander, journalists must ‘apologise’ and publish the corrected information stated by the courts as part of the sanction; in cases of attempt to private life, aggravated sanctions could even be decided. ECtHR, Ekin v. France (no. 39288/98), 17 July 2001. Professor Wachsmann has systematically studied revisionism and anti-semitic speech in many contributions, shaping the limits to freedom of expression. This author adheres to the doctrine of ‘militant democracy’ or ‘democracy able to defend itself ’, which the ECtHR has welcomed. See inter alia, ‘Liberté d’expression et négationnisme’, RTDH (2001), 585; ‘La jurisprudence récente de la commission européenne des droits de l’homme en matière de négationnisme’, in Flauss and De Salvia (dir.), La CEDH: développements récents et nouveau défis, (Brussels: Bruylant, 1997), pp. 101 and ff. Other authors have also dealt with this issue, such as G. Cohen-Jonathan, ‘Négationnisme et droits de l’homme’, RTDH (1997), 571 and ff.; M. Levinet, ‘La fermeté bienvenue de la Cour européenne des droits de l’homme face au négationnisme: obs. s/la décision du 24 juin 2003, Garaudy c. France’, RTDH 59 (2004), 653; D. Roets, ‘Epilogue européen dans l’affaire Garaudy : les droits de l’Homme à l’épreuve du négationnisme’, Le Dalloz 4 (2004), commentaires, 239 or F. Massias, ‘La liberté d’expression et le discours raciste ou révisionniste’, RTDH (1993), 183. Act against racism (Loi relative à la lutte contre le racisme, no. 72–545). Loi tendant à réprimer tout acte raciste, antisémite ou xénophobe (no. 90–615). See M. Troper, ‘La loi Gayssot et la Constitution’, Annales, Histoire, Sciences Sociales, 54 (1999), no. 6, 1239. Against this Act, see J.-P. Feldman, ‘Peut-on dire impunément n’importe quoi sur la Shoah ? (De l’article 24bis de la loi du 29 juillet 1881)’, Revue de droit international et de droit comparé, 75(4) (1998), 229. The Article 24bis of the criminal code qualifies as an offence the challenge of one or several crimes against humanity as defined in Article 6 of the Statute of the international military Court annexed to the London agreement of 8 August 1945. These crimes have to be committed either by members of an organisation declared criminal by this Statute or by a person judged guilty by this military Court.

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As to the principle of equality and non-discrimination, recognised in the French Declaration46 and developed through statutory law, EU law has had a strong influence on the provisions enacted. However, the implementation of the principle encounters serious obstacles stemming from French reluctance regarding the recognition of the concept of minorities.47 For French authorities, the concept of minority contradicts the ‘national republican model’ and the indivisibility of the nation (Article 2 of the Constitution), in which ‘minorities, religions and cultural particularities of any kind are not acceptable in the public space’.48 France has refused to ratify the Framework Convention on the protection of minorities, as well as Protocol no. 12 to the ECHR. Two of the supreme judicial bodies, the French Council of State and the Constitutional Council, have actually positioned themselves against the ratification of any instrument recognising groups, which can be identified on the basis of race, religion, sex or other criteria. In the domestic case law the constitutional force of the legal concept of the ‘French people’, as opposed to the recognition of ‘other’ people, has been established.49 The Council of Europe has often stressed the importance of ratifying the instruments mentioned above,50 taking into account the particularities of the French societal context

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Article 1: ‘Men are born and remain free and equal in rights. Social distinctions may be based only upon the general good’ [Les hommes naissent et demeurent libres et égaux en droit. Les distinctions sociales ne peuvent être fondées que sur l’utilité commune]. Professor F. Benoit-Rohmer is one of the main experts on the topic of ethnic and religious minorities: see, inter alia, Les minorités, quels droits? (Strasbourg: éd. du Conseil de l’Europe, 1999); ‘La Cour européenne des droits de l’homme et la défense des droits des minorités nationales’, RTDH (2002), 563; ‘La Cour de Strasbourg et la protection de l’intérêt minoritaire: une avancée décisive sur le plan des principes ? En marge de l’arrêt Chapman c. RU’, RTDH (2001), 999. This is, for instance, sustained by the President of the National Assembly, Jean-Louis Debré, as pointed out by Mr Wieviorka, ‘Le modèle néorépublicain’, article published in the newspaper Libération, 13 November 2006, p. 31. CE, 24 September 1996, Opinion on France’s ratification of the European Charter of Regional or Minority Languages; CE, 6 July 1995, Opinion on the ratification of the Framework Convention for the Protection of National Minorities; CC, 9 May 1991 (no. 91–290 DC), Law establishing the territorial community of Corsica. As pointed out by the report issued by Mr Boriss Cilevičs, see Working document of the Parliamentary Assembly of the Council of Europe (COE) on Ratification of the Framework Convention for the Protection of National Minorities by the Member States of the Council of Europe, 12 June 2006, §§ 16 and ff. The Working document led to the adoption of Recommendation 1766 (2006) on 4 October 2006 by the Parliamentary Assembly, which reminded of its recommendations 1492 (2001) and 1623 (2003). The Commissioner for Human Rights, Alvaro Gil Robles, also pointed out the lack of ratification of these instruments in his rapport

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and the existence of different religious groups in the country. The recognition of an official minority status could sustain better integration policies and, at the same time, ensure full respect for French Republican legal and political tradition.51 In spite of this, there has been no major change in position. In fact, the Senate has demonstrated reluctance regarding a recent EU proposal for a directive implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation.52 The senator in charge of the report, Mrs Muguette Dini, stated that the legal recognition of specific communities with their own rights would contradict ‘the French conception of the Republic, which establishes that every citizen has the same legal rights’.53

3. Litigation in the ECtHR on Claims Raising Articles 8-11/14 ECHR as well as Claims Involving Minorities and Immigrants Besides the lack of acceptance of a legal conception of minorities in France, there is another factor that contributes to limiting litigation both in national courts and in the Strasbourg Court. Most non-governmental organisations (NGOs) and activist groups are reluctant to have recourse to legal means to fight against exclusion. They consider the media and political lobbying to be much more effective. While the use of judicial complaints as a way of achieving political change is a well-developed method in common law culture, it is unfamiliar to French legal tradition. Moreover, the left-wing political orientation that is widespread among associations and activists since 1960 and 1970, considers legal and judicial routes to address violations of human rights as a way of showing acceptance towards the State. They were therefore despised in the past. Associations like the Human Rights League (Ligue des droits de

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on the effective protection of Human Rights in France, made public on 15 February 2006 after his visit on the French territory from 5 to 21 September 2005. A. Nanchi, Vers un statut des minorités en droit constitutionnel français (Clermont-Ferrand: Presses Universitaires de la Faculté de Clermont-Ferrand, 2006). Proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, 2 July 2008, COM(2008) 426 final. Draft resolution on the Proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (E 3918), Report, 30 October 2008.

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l’homme) and Amnesty International, but also workers’ unions usually favour political over legal tactics.54 Therefore, it is not surprising that a very high percentage of the complaints filed against France before the Strasbourg Court derives from individuals acting alone. Such perceptions are challenged today and this trend slowly changes with transnational associations pleading cases across countries and national civil society organisations challenging legislation before the judiciary, either at the national level or in the Strasbourg Court. In the case of France, such an evolution is particularly discernible concerning several vulnerable groups: foreigners, individuals discriminated because of their sex or sexual orientation, religious minorities and individuals supporting views that the majority strongly disagrees with. Claims made by foreigners are usually based on Articles 3 (prohibition of torture) and 8 (privacy) of the Convention and involve cases of expulsion. They have also been raised in relation to other rights of the ECHR, such as Articles 5 (liberty), 6 (fair trial) ECHR or Article 1 of Protocol no. 1 (property) to the Convention.55 At the national level, associations dedicated to the defence of foreigners’ and asylum seekers’ rights, such as the CIMADE (Ecumenical Service of Mutual Aid – Service oecuménique d’entraide) and the Human Rights League have pointed out the progressive jurisdictionalisation of complaints raised by foreigners in France. Recent legislative evolution has given birth to longer and more complicated judicial proceedings in this respect. Civil society associations often feel overloaded by the numerous complaints brought to their attention and their capacity of reaction is reduced due to budgetary limitations. The CIMADE, for instance, has had to successfully develop a leading role in assisting foreigners with regard to national authorities without having the tools or the means to represent their interests in court. To tackle the issue, it has made an agreement with some law firms to provide them with the legal files of the complaints raised by foreigners and asylum seekers, the CIMADE remaining responsible for the ‘legal follow-up’ of the cases. In Strasbourg, the CIMADE has never pleaded in its own name, but its lawyers have represented applicants and filed complaints.56 54

55 56

The French High Authority against Discrimination and for Equality (Haute Autorité de lutte contre les discriminations et pour l’égalité – HALDE) points out that only 3% of the applications it receives are introduced by associations. See the Koua Poirrez ruling cited previously (in footnote 25 and ff.). See, e.g., ECtHR, Skender Fiqaj and Others v. France (inadmissibility dec., no. 53491/99), 6 April 2000; Bamba v. France (admissibility dec., no. 30930/96), 8 September 1997; A.B. v. France (dec. striking the case out of the list, no. 34795/97), 18 September 1997; Djamel Lounis v. France (inadmissibility dec., no. 49137/99), 25 April 2002. Most of the decisions declared the inadmissibility of the case or struck it out of the list, so the CIMADE is rarely mentioned in final judgments.

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There are also a few examples of collective applications in which associations and NGOs, acting as co-applicants, claimed, in the 1980s and the 1990s, to be victims in cases pertaining to foreigners and asylum seekers. For instance, in Elio Campopiano and other v. France,57 the GISTI (Group dedicated to the information and support to immigrants – Groupe d’information et de soutien des immigrés)58 alleged that the expulsion and actions against the applicant harmed its collective interest in the defence and assistance of immigrants. All applications in which associations claimed the status of a victim were declared inadmissible by the former European Commission. In the light of Article 34 of the ECHR (individual applications), the Court similarly refused to recognise associations supporting applicants as proper applicants.59 The negative outcome of these cases partly proved to be a deterrent for these associations to pursue litigation before the ECtHR. Recent developments in litigation strategies should nonetheless be mentioned. Since May 2007, the requests for interim measures before the Strasbourg Court have ‘exploded’. Whereas, in 2006, almost 90% of those requests were rejected, in 2007 and 2008 this percentage has been reduced to 70%. Strategic litigation before Strasbourg seems to flourish in this area, with several organisations pleading at the European level. The CIMADE and the ANAFE (National association for border assistance to foreigners – Association nationale d’assistance aux frontières pour les étrangers), which are allowed to intervene at the borders and in detention centres for foreigners, play a central role in the process. They have created a sort of ‘alert mechanism’, providing legal assistance to foreigners and asylum seekers under the threat of expulsion, so that urgent measures can be sought from Strasbourg.60 The 57 58

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EComHR, Campopiano and other v. France (no. 18336/91), 5 May 1993. This association considers law as its main tool. It supports and gives legal aid to foreigners and asylum seekers in domestic jurisdictions or in Strasbourg when appropriate. See, e.g., ECtHR, Michele Dayras and Others v. France, in which the NGO Sos Sexisme claimed to be a victim of discrimination under Articles 8 and 14 of the ECHR because of the preference given to the father’s surname over the mother’s (inadmissibility dec. no. 65390/01, 6 January 2005). In A.B. and G.I.A. v. France, the GIA (Groupe d’Information Asiles), a NGO specialised in legal aid for individuals detained in hospitals and psychiatric centres, was not considered to be a victim of illegal detention. However, it also complained about a breach of Article 6 ECHR, alleging that it was not possible too meet with the first applicant, interned in a psychiatric hospital (inadmissibility dec. no. 28660/95, 20 May 1998). With respect to the same NGO, similar arguments have been advanced in G. and M.L. and GIA v. France (EComHR, no. 17734/91, 29 June 1994). The GIA acted as an amicus curiae in Nouhaud and Others v. France (no. 33424/96, 9 July 2002). Some cases in which the CIMADE intervened or acted on behalf of the applicants in front of domestic courts reached Strasbourg, even if this NGO was not directly involved before the ECtHR. See, e.g., the Amuur case (no. 19776/92, 25 June 1996) which relates to the conditions

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development of this kind of actions only aims at avoiding immediate expulsion and presents some limitations, mainly concerning the support to the applicants during the years it usually takes to decide on the merits of their case. Third party interventions or amicus curiae before the Strasbourg Court remain limited. The role of ANAFE in the Asebeha Gebremedhin [Gaberamadhiam] case is an emblematic example in this respect.61 In its judgment of 26 April 2007, the Court declared, for the first time, that France had violated Article 13 (effective remedy) in relation to Article 3 (prohibition of torture) ECHR, prompting legislative reform. Rights International and Amnesty International intervened with the submission of written observations in H.L.R. v. France, a case concerning a Colombian applicant accused of drug trafficking, but the Court found no violation of Article 3 of the ECHR. The GISTI intervened in the Hussun case,62 which relates to the collective expulsion of foreigners arriving to Lampedusa. Finally, in the Siliadin case concerning forced work of a Togolese national,63 although there has been no proper third party intervention, the applicant’s counsel was assisted in the Court by a lawyer from the Committee against Modern Slavery, an NGO offering legal support to victims of modern slavery. A second category of vulnerable groups filing complaints before the Strasbourg Court consists of individuals claiming discrimination based on their gender or sexual orientation. They usually invoke a breach of Article 8 of the Convention (privacy), either alone or in combination with Article 14 of the ECHR (prohibition of discrimination). Strategic litigation seems to have flourished recently in this area under the influence of transnational associations dealing with the rights of gays and lesbians. The first example is case Fretté v. France,64 in which the Court ruled that the refusal to give the right to adopt to a single person because of his homosexuality was not in violation of Article 8 of the ECHR. The International Lesbian and Gay Association, European Region (ILGA-Europe) acted on that occasion as an amicus curiae.65

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of detention and deprivation of liberty of asylum seekers in the international area of an airport and where France was condemned on the basis of Article 5 of the ECHR). ECtHR, Asebeha Gebremedhin [Gaberamadhiam] v. France (no. 25389/05), 29 April 1997. See infra, paragraph 4, for the details of the case. ECtHR, Hussun and Others v. Italy (no. 10171/05), 11 May 2006. ECtHR, Siliadin v. France (no. 73316/01), 26/07/2005. See infra, paragraph 4, for the details of the case. No. 36515/97, 26 February 2002. Although only in the admissibility decision issued by the Court on 12 June 2001.

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The same association presented written observations together with three other associations66 in E.B. v. France,67 in which the Grand Chamber of the Strasbourg Court overruled its precedent in Fretté. Third parties presented a comparative law study on adoption by homosexuals, as well as recent legislative modifications in this area by several member states. Two different types of complaints fall within a third category of ‘vulnerable’ individuals pleading in the Strasbourg Court. A first set of complaints is put forward by individuals, belonging to religious minorities and being legally banned from wearing conspicuous symbols in specific situations. Strategic litigation, primarily based on Articles 8 (privacy), 9 (freedom of religion) and Article 14 (prohibition of discrimination) of the ECHR, has recently emerged in this area. The Sikh community, with the support of the United Sikhs Association, has for instance filed several complaints at the national level, and two before the ECtHR: one regarding the ban to wear the turban at school,68 the other concerning the right to wear the turban in photographs for official use.69 Some Muslims have also challenged French legislation at the domestic level and in the Strasbourg Court, yet their complaints were unsuccessful.70 Up to now, the Strasbourg Court has never condemned France for violating the freedom of thought or religion. The second set of complaints relates to individuals supporting views which are not ‘majoritarian’ and which have contributed to shape the domestic protection of freedom of expression. France was condemned several times in this respect and these cases have been of paramount importance to define the scope of domestic judicial power to restrict freedom of expression in a democratic society.71

66

67 68

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The FIDH (International Federation of Human Rights Leagues – Fédération Internationale des ligues des Droits de l’Homme), the BAAF (British Agencies for Adoption and Fostering) and the APGL (Association of Gay and Lesbians’ Parents and future Parents – Association des Parents et futurs parents Gays et Lesbiens). No. 43546/02, 22 January 2008. On 30 May 2008, Jasvir Singh and Ranjit Singh filed a complaint before the ECtHR, with the support of the United Sikhs Association, against their expulsion from Michel High School in Bobigny (Paris region) for wearing a keski. Their expulsion was based on the ‘Stasi Act’ of 15 March 2004 (n° 2004–228) referred to in footnote 30. On 11 June 2007, Mr. Mann Singh introduced a complaint before the ECtHR, with the support of the United Sikhs Association, challenging a ministry order issued on 6 December 2005 (circulaire no. 2005–80), which bans the use of any headscarf or turban on the picture required for a driving license (no. 24479/07). The Court has declared his application inadmissible (inadmissibilidity dec. no. 24479/07, 13 November 2008). See infra, paragraph 4. See infra, paragraph 4.

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4. ECtHR Jurisprudence in the Cases Under Review The number of complaints lodged against France has been growing steadily, although, in recent years, the rate of growth has decreased. Between the first judgment issued in 198472 and until 2008, over 700 judgments have been delivered against France. France remains one of the states with the highest number of filed complaints, and most of the judgments against it concern the right to a fair trial (Article 6 ECHR). From the total number of judgments, seventy pertain to vulnerable groups and minorities. The majority of the Court’s rulings concern the right to private and family life (Article 8 ECHR) in cases regarding the procedures of expulsion of foreigners and the rights of individuals belonging to sexual minorities. Private life case law is much more extensive than cases regarding freedom of expression, freedom of religion or freedom of association. Claims under Articles 8 to 11 of the Convention, occasionally combined with Article 14 ECHR (prohibition of discrimination), represent around 10% of the total number of applications lodged. Nevertheless, in cases pertaining to minorities or vulnerable groups, other Convention provisions are also invoked: Articles 3 (prohibition of torture), 4 (prohibition of slavery), 5 (liberty), 6 (fair trial) or 13 (effective remedy) of the ECHR. Four main fields of case law can be generally identified as cases implicating vulnerable individuals and minorities: cases raising foreigners’ issues; cases dealing with sexual orientation and transgender issues; cases stemming from religious groups; and cases about political minority views and their freedom of expression in a democratic state. Concerning the case law on the rights of foreigners, there are several areas of litigation which should be highlighted. Most of the jurisprudence relates to expulsion cases, involving the right to private and family life (Article 8 ECHR), the prohibition of inhuman and degrading treatment (Article 3 ECHR),73 detention conditions before expulsion (Article 5 ECHR)74 and procedural guarantees.75 In the Gebremedhin case the strong security and administrative measures adopted in France have been denounced.76 In the last years, there

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ECtHR, Bozano v. France (no. 9990/82), 15 May 1984. B. B. v. France was struck out of the list because the government did not expel the applicant. Otherwise there would have been a potential violation of Article 3 of the ECHR, as the applicant was suffering from AIDS and could not receive equivalent medical attention in his country of origin (ECtHR, no. 30930/96, 9 September 1998). As in the Amuur case cited supra on detention conditions of an asylum seeker in the international airport area (no. 19776/92, 25 June 1996). See, for exemple, Maaouia v. France, concerning the excessive length of an expulsion procedure (ECtHR (GC), no. 39652/98, 5 October 2000). ECtHR, Asebeha Gebremedhin [Gaberamadhiam] v. France (no. 25389/05), 29 April 1997.

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had been a drop of 50% of asylum applications, much more restrictive summary procedures to claim asylum, the lack of suspensive effect of judicial remedies and bad practices of state agents concerning asylum seekers. The applicant alleged the breach of the non refoulement principle and lack of an appropriate remedy. The Court’s condemnation prompted legislative changes concerning access to justice and to file asylum requests for the foreign population arriving in the country. Other complaints in the Strasbourg Court stemmed from foreigners residing on the French territory: European citizens77 or third-country nationals. Complaints by third-country nationals concerned inter alia torture and police brutality suffered by a Moroccan national,78 racist considerations of a member of the jury in a criminal case against a French citizen of foreign origin79 and discriminatory treatment on the basis of nationality in relation to the grant of social allowances.80 Finally, the Siliadin case81 raised the issue of exploitation of illegal foreigners. The applicant had served in a house for years with no salary, under the threat of denouncement and consequent expulsion of the French territory. Although the tort was committed by individuals, the Court applied the Convention’s ‘horizontal effect’. It ruled that there was not enough protection in French law against this type of behaviour and condemned France for ‘modern slavery’ under Article 4 of the Convention. Although there are few cases concerning gender and sexual-orientation in the Strasbourg Court, these have given birth to key changes in France. Applications in this field have been carefully designed. Most of them have been lodged by foreign or transnational associations acting on behalf of gay and lesbian associations. The cases Fretté82 and E.B.83 previously mentioned certainly follow this pattern. In the Fretté case, the European Court stated that there was no European consensus on the issue of adoption rights for homosexuals and granted a wide margin of appreciation to French national authorities. No breach of Article 8 of the ECHR (privacy) was found. This however did not prevent gays and lesbians associations from pursuing litigation in Strasbourg. A judicial reversal occurred six years later in the E.B. case. The Court’s Grand Chamber held that, in the light of French legislation permitting adoption by single individuals, any reference to sexual orientation was

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ECtHR, Aristimuño Mendizabal v. France (no. 51431/99), 17 January 2006. ECtHR (GC) Selmouni v. France (no. 25803/94), 28 July 1999. ECtHR, Remli (no. 16839/90), 23 April 1996 (Article 6 ECHR). ECtHR, Koua Poirrez v. France (no. 40892/98), 30 September 2003. ECtHR, Siliadin v. France (no. 73316/01), 26 July 2005. ECtHR, Fretté v. France (no. 36515/97), 26 February 2002. No. 43546/02, 22 January 2008.

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contrary to Article 8 of the ECHR (privacy) combined with Article 14 (prohibition of discrimination). B v. France84 dealt with transsexuals’ civil status. The issue at stake was the recognition of the new identity of a transgender person. Although this case served to modify the civil Supreme Court’s jurisprudence concerning the recognition of the civil status of transsexuals, the applicant did not benefit from such a reversal in case law. The principle of res judicata prevented the reopening of proceedings, and the final decision remained unchallenged. The change in the domestic judicial practice triggered by this case permitted, nevertheless, a legal recognition of a new civil status for transgender individuals in France. In this respect, the Strasbourg Court issued a kind of ‘pilot’ case, as it had consequences for all transsexuals living in France by putting an end to the denial of the recognition of their new legal identity. As previously emphasised, the limited number of cases on freedom of religion does not seem to be the result of a lack of problematic cases regarding religious groups in France.85 Weak litigation has not precluded a few cases relating to freedom of thought to reach the Strasbourg’s system. Before December 2008,86 only two of those cases led to an ECtHR judgment on the merits and none of them ended with a condemnation of French domestic behaviour. Nevertheless, they both had a special weight either from a political or a historical perspective. In Cha’are Shalom Ve Tsedek v. France,87 the Court dealt with the question of rituals. In France, as in many other European countries, the ritual of slaughter exercised by Jews and Muslims comes into conflict with the principle according to which an animal can be slaughtered after being stunned, that is plunged into a state of unconsciousness in order to spare it any suffering. Ritual slaughter is nevertheless authorised under French law. The applicant association came into being as a minority movement, which split away from the Jewish Central Consistory of Paris and applied a strict orthodox conception of religion. According to the applicant association, the ritual slaughterers under the authority of the rabbinical court of the ‘ACIP’, the only body officially authorised to practice these rituals, no longer complied with the very strict requirements of the Jewish religion. The applicant association submitted that it was therefore obliged, in order to be able to make ‘glatt’ kosher meat available to its 84 85 86

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No. 13343/87, 25 March 1992. Amiraux, ‘Speaking as a Muslim’, p. 34 and ff. On 4 December 2008, the ECtHR issued two judgments relating to the wearing of religious symbols at school, Dogru v. France and Kervanci v. France (ECtHR (no. 27058/05) (no. 31645/04) 4 December 2008). No. 27417/95, 27 June 2000.

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adherents, to slaughter illegally and to obtain supplies from Belgium. In this controversial ruling, no breach of Article 14 ECHR (prohibition of discrimination) was considered. The Court also dissented from the European Commission88 and decided that there was no violation of Article 9 of the European Convention. The Court took into account that these ultra-orthodox members of the Jewish community could practice their rituals and that financial reasons had precluded them from concluding an agreement with the ACIP. Such a consideration seems more related to money than to the protection of religious freedom.89 Paturel v. France90 is the second judgment on the merits involving freedom of religion. It related to the French social and public perception of Jehovah’s Witnesses as a sect. The applicant, a Jehovah’s Witness, had been sanctioned for the publication of a book denouncing and criticising the action of a statefunded private association fighting sects. The Court did not declare a violation of Article 9 ECHR, but condemned France for infringing freedom of speech (Article 10 ECHR), as the book was considered to contribute to public debate. As to the status of Jehovah’s Witnesses, mention should be made of PalauMartinez v. France,91 although it did not raise any issue under Article 9 of the ECHR. The case concerned a decision taken by domestic courts to establish children’s residence at their father’s home after divorce, on the basis that the mother’s education was inappropriate. Since part of the reasoning was based on the fact that the mother was a Jehovah’s Witness, the ECtHR declared a violation of Articles 8 (privacy) and 14 ECHR (prohibition of discrimination). There are several decisions of inadmissibility concerning applications against France lodged by religious associations and groups. Although unsuccessful, they show the willingness of religious minorities to make their voice heard in Strasbourg.92 In Fédération chrétienne des Témoins de Jéhovah v. France,93 the complaint was filed by an association linked to Jehova’s Witnesses, 88 89

90 91 92

93

EComHR, Report, application no. 27417/98, 20 October 1998. See a critical view in P. Rolland., ‘L’arrêt Cha’are Shalom Ve Tsedek v. France du 27 juin 2000’, in CREDHO cahier no. 14, La France et la Cour EDH. Jurisprudence de l’année 2000, (Brussels: Bruylant, 2001), pp. 61–65. No. 54968/00, 22 December 2005. No. 64927/01, 16 December 2003. See e.g. E.ComHR, Church of Scientology of Paris v. France (inadmissibility decision no. 19509/92, 9 January 1995). This case concerns a complaint in order to obtain access to classified data of the State and which related to members of the Church of Scientology. The Court declared inadmissible its complaint, considering that it was not compulsory for France to give access to these data. Dec. no. 53430/99, 6 November 2001.

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which alleged discrimination on account of its legal status. The case was arguably filed to raise awareness and fight distrust against minority religious groups.94 A few inadmissibility decisions raise the issue of religious symbols. In Phull v. France,95 a Sikh stated that the security staff of a French airport compelled him to remove his turban for inspection. The applicant argued that there had been no need for the security staff to make him remove his turban, especially as he had not refused to go through the walk-through scanner or to be checked with a hand-held detector. The Court affirmed, however, that ‘security checks in airports are undoubtedly necessary in the interest of public safety within the meaning of that provision’; moreover, ‘the arrangements for implementing them in the present case fell within the respondent State’s margin of appreciation, particularly as the measure was only resorted to occasionally’. Another case found inadmissible concerned the denial of access of a Muslim woman to the French Consulate in Marrakech because of her refusal to remove her headscarf. The Court took into account that the removal was required because of ‘security reasons’ and rejected the complaint although she was ready to show her face and hair to a female security agent.96 Dogru v. France97 and Kervanci v. France98 are the first cases to challenge the banning of religious symbols in schools. Both relate to the expulsion of Muslim girls from public schools because they refused to remove their headscarves during sports classes.99 Together with the Sikh cases, which gave birth to inadmissibility decisions, such as the Phull case cited above100 and the Mann Singh case (concerning the denial to remove the turban for a driving license picture),101 they reflect the restrictive view of the Strasbourg Court when the state’s margin of appreciation meets religious issues. Such a restrictive view might have a negative impact on future litigants pleading similar cases.102 94

O. Rolland, ‘La France et les sectes (décision Fédération chrétienne des Témoins de Jéhovah du 6 novembre 2001)’, CREDHO: La France et la Cour EDH. Jurisprudence de l’année 2001, (Brussels: Bruylant, 2002), pp. 175–179. 95 Dec. no. 35753/03, 11 January 2005. 96 ECtHR, El Morsli v. France (no. 15585/06), 4 March 2008. 97 ECtHR (no. 27058/05), 4 December 2008. 98 ECtHR (no. 31645/04), 4 December 2008. 99 Note that these cases occurred before the complete banning of conspicuous religious symbols in public French schools and therefore do not challenge the ‘Stasi Act’ of 15 March 2004 (no. 2004–228) referred to in footnote 30. Conversely, the complaint filed on 30 May 2008 by Jasvir Singh and Ranjit Singh before the ECtHR, with the support of the United Sikhs Association, directly challenges this piece of legislation (see details in footnote 67). 100 No. 35753/03, 11 January 2005. 101 No. 24479/07, 13 November 2008. 102 For an application currently pending in Strasbourg, see the case referred to in footnote 68.

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Finally, the few cases which have been lodged regarding freedom of expression have had a large impact in the media because of their social or political sensitivity. Although they cannot be classified as implicating ‘vulnerable’ individuals, they relate to the expression of ‘non majoritarian’ views and have opened public debate in the light of Article 10 of the European Convention and under Article 17 of the ECHR (i.e. abuse of law clause). Revisionism and the limits of freedom of expression,103 as well as publications regarding facts and actors of the French resistance during the Second World War have been issues dealt with by the Court.104 The fight against anti-semitism or hate speech has been regulated through several pieces of legislation.105 In the Chauvy ruling,106 the Strasbourg Court considered that even though the ‘so called “Barbie testament” did not belong to the category of clearly established historical facts – such as the Holocaust- (…)’, there was an important attempt to the reputation of Mr and Mrs Aubrac, recognised members of the Resistance movement. It concluded that there was no breach of Article 10 ECHR and supported French domestic courts’ decision to ban information attempting to the reputation of these two persons. A last set of case law is related to the right to vote. Its direct impact on democracy, and the tension it reveals between diffused and less diffused political views are the reasons why it finds a place in a contribution dedicated to vulnerable groups or individuals. In Py v. France,107 the applicant, a professor, teaching and living in New Caledonia at the time, complained of the restriction of his right to vote on the special electoral roll on self-determination. A 10-years residence was required in order to vote, a condition that the Court considered in accordance with the ECHR. Piermont108 is a sui generis case. It does not raise an issue under Article 3 of Protocol no. 1 of the ECHR (right to vote), but concerns the public expression of a political opinion in a foreign country going through a process of accession to its autonomy. The applicant, a German citizen and member of the EU Parliament, was expelled from the French Polynesian territory because she expressed her public support to the independence process and criticism against nuclear tests. The Court declared violation of Article 10 of the Convention. However, it based its ruling on the fact that Mrs Piermont could not be considered a ‘foreigner’ in the sense of the

103

104 105 106 107 108

ECtHR, Lehideux et Isorni v. France (no. 55/1997/839/1045), 23 September 1998; ECtHR, Garaudy v. France (no. 65831/01), 24 June 2003. ECtHR, Chauvy and Others v. France (no. 64915/01), 29 June 2004. See supra, paragraph 2. ECtHR, Chauvy and Others v. France (no. 64915/01), 29 June 2004. No. 66289/01, 11 January 2005. ECtHR, Piermont v. France (no. 15773/89), 27 April 1995.

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Convention. Her condition of national of an EU country and member of the EU Parliament granted her a better protection of her rights. It was indeed her political functions, which lead the Court to affirm her right to express a political opinion under the ECHR and ensured a higher protection from expulsion. This case could also have been listed among those relating to the rights of foreigners. Taking into account Mrs. Piermont’s status as an EU citizen, one might doubt whether she could be considered to be a ‘vulnerable’ individual as long as the issue of expulsion was at stake. Should she have been a national from a third country, the Court would have had to pronounce itself on the validity of the expulsion decision.

5.

Conclusion

Legal literature traditionally highlights one important feature of the French situation regarding the ECHR: France’s self-perception as the ‘human rights homeland’ (patrie des droits de l’homme). It has long been considered (and it is still sometimes considered) that the highly developed domestic system of human rights protection does not need external monitoring. Such a traditional presentation should be strongly qualified. To a certain extent, it is also outmoded. A shift in political and judicial approaches towards international protection of human rights has been taking place in France. Although France was slow to ratify the European Convention on Human Rights and to accept the jurisdiction of the European Court of Human Rights, the current political position is, to a large extent, supportive of the Strasbourg system. In addition, most French courts are no more reluctant to construe the Convention’s provisions in line with Strasbourg rulings issued against countries other than France. Furthermore, although the control mechanisms to protect human rights are deeply rooted in the French legal system, the constitutional conception of equality enshrined in the indivisibility principle of the Republic makes it very hard for vulnerable groups and minorities to be recognised as such. In their search for an established identity, religious minorities, homosexual or transgender lobbies are considering Strasbourg as an instance of paramount importance. With the growing influence of the common law approach of strategic litigation, recourse to Strasbourg is not simply taken with the objective of winning a particular case, but rather of changing the law. Finally, the high number of complaints involving foreigners also illustrates a change of attitude in this field, which is going through a growing process of transnational judicialisation supported by active and well-organised NGOs.

Chapter Five The Protection of Marginalised Individuals and Minorities in Germany: The Role of National and European Judicial Mechanisms Christoph Gusy and Sebastian Müller 1. Introduction The German human rights protection system comprises a differentiated political and judicial system. Non-judicial and judicial mechanisms are in place to prevent human rights violations and to redress them judicially in cases of unlawful interference. In this regard the judicial protection of human rights can be deemed the most important means of protection in Germany. All courts are obliged by the German Basic Law to abide by the fundamental rights it enshrines. In particular, the Federal Constitutional Court plays an integral role in protecting, promoting and developing human rights standards. In order to understand the protection provided by the European Convention on Human Rights (ECHR) to marginalised individuals and minorities, we need to consider it in relation to the framework of domestic constitutional guarantees in Germany. Individuals and groups must first seek redress through the German legal system. Only when they have pursued their case through all judicial channels are they legally allowed to lodge their complaint before the European Court of Human Rights (ECtHR). Over the past decades the Federal Constitutional Court has become the key actor in upholding the rule of law and guaranteeing the fundamental rights of individuals alleging a violation. The main reason for this is the existing individual complaint procedure. This allows individuals, groups and organisations to file a complaint with the Federal Constitutional Court alleging unlawful interference with their rights. The strong position of the Federal Constitutional Court and the highly developed case law have, of course, consequences for litigation before the ECtHR and the prospects of success of

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litigants in Strasbourg. Although Germany can be seen as a middle ranking country in terms of the number of pending cases against it, only very few petitions lead to adverse judgments against Germany. For example, in December 2007, some 2,500 cases were pending before the ECtHR against Germany,1 yet in the same year only seven adverse judgments were delivered.2 The same picture emerges when looking at the statistical information from 1998 onwards.3 Nonetheless, despite the relatively low number of judgments against Germany, the role of the ECtHR should not be underestimated. Firstly, the protection of human rights cannot be guaranteed by just one judicial body. In the past, the ECtHR has rectified problems which had not been regarded as problematic from a nationally-specific view of human rights protection. As a result, the ECtHR was – and still is – important for those cases in which the national system had failed to provide sufficient protection. The reasons for this were diverse. In some rare cases, interference with a fundamental right had been deemed justified by the national authorities and was later assessed differently by the ECtHR. In other cases, the national system lacked effective monitoring mechanisms to detect infringements. Secondly, the ECtHR’s judgments provide valuable legal knowledge and direction for similar cases reviewed at the national level. In this way, it fulfils its objective of interpreting national provisions and even the German Basic Law in accordance with European norms of human rights. Finally, ECHR and the Strasbourg judgments can influence the political law-making process and protect human rights in a preventive manner even before individual applicants lodge a complaint with the Federal Constitutional Court or the ECtHR. Judicial mechanisms linked to the German Basic Law or the ECHR, however, may not always be appropriate for marginalised individuals and minority groups that lack legal residence status. In particular, migrants4 without legal residence status are likely to find themselves in a weak position. Using the

1

2 3

4

Council of Europe, European Court of Human Rights, Annual Report 2007 (Strasbourg: 2008), p. 135. Ibid., p. 142. S. Greer, The European Convention on Human Rights (Cambridge: Cambridge University Press, 2006), p. 77. Until December 2007, the ECtHR delivered 60 adverse judgments finding at least one violation. Council of Europe, Annual Report 2007, p. 145. The broader notion of ‘migrants’ is used for both international migrants and immigrants, as the cases discussed do not clearly distinguish between these groups. For a definition of both migrants and immigrants see: International Organisation for Migration, World Migration 2008 (Geneva: IOM, 2008), pp. 494–495.

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judicial process would require disclosing their illegal status and risk triggering the administrative extradition procedure. Therefore, in the case of illegal migrants, the existing judicial protection system provides no tangible help.5 The vulnerability of these migrants can result in a human rights problem. For example, pregnant women with no form of residence permit face a difficult legal situation that may lead to insufficient healthcare. The German alien law obliges physicians in public hospitals to inform the relevant authorities if they tend to a patient without legal status in Germany.6 As such, migrants without legal status will often seek to avoid any kind of official contact, including for reasons of health.7 Taking into consideration the obligation to protect the physical integrity of a person (under Article 2 and Article 8 ECHR), it could be argued that the German alien law renders illegal migrants reluctant to seek medical help, which could lead them into life-threatening situations. The question arises as to whether a migrants’ health is their sole responsibility or if the state, by introducing such legal requirements, is infringing its obligation under the ECHR. This chapter explores the human rights protection afforded to marginalised individuals and minority groups in Germany. Understanding the potential for such individuals and minorities to seek protection under the ECHR must begin with a consideration of German legal perspectives on the binding force of Strasbourg Court judgments within the national legal and political order. The first part of this chapter depicts the domestic protection system and the role of the ECHR and ECtHR judgments within it. The second part of this chapter identifies the marginalised individuals and minorities in Germany who claim protection under the ECHR and analyses the reasons they do so. With regard to issues raised by individuals from vulnerable and minority groups in the German context, this section will focus on asylum seekers, residence permits for migrants, expulsion of migrants, discriminatory legislation concerning foreigners in criminal court proceedings, mentally handicapped persons, politically active civil servants and cases relating to the right of freedom of religion. Finally, this chapter examines the impact of ECtHR judgments on the protection afforded to the individual claims under focus, as well as on legal awareness and practice domestically.

5 6 7

See G. Pflaumer, ‘Leben in der Schattenwelt’, Vorgänge 4 (2006), 95. See § 87, para. 2, Residence Act [Aufenthaltsgesetz]. J. Alt and R. Fodor, Rechtlos? Menschen ohne Papiere (Karlsruhe: von-Loeper-Literaturverlag, 2001), p. 99.

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2. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship In the German legal order, the position of the ECHR is equivalent to domestic federal law.8 This is a result of the dualistic approach in Germany towards international law. The ECHR had to be approved by the Federal Parliament in order to incorporate it into the German legal order as applicable law. As the ECHR has the status of federal law, it supersedes any state law9 or other legislative acts not stemming from the federal lawmaker. As national federal law, the ECHR has a different rank to the German Basic Law. This constellation leads to the German Basic Law being applied first in contentious cases, though the ECHR is a binding Convention under international law for Germany. However, the Federal Constitutional Court emphasised in a decision from 2004 that ‘[…] the binding effect of statute and law also includes a duty to take into account the guarantees of the Convention and the decisions of the ECHR as part of a methodologically justifiable interpretation of the law’.10 This doctrine has two main aspects. Firstly, the provisions of the ECHR bind all responsible bodies of any state authority directly within the framework of the German Basic Law.11 The Federal Constitutional Court holds the view that, wherever possible, the German Basic Law must be interpreted in the light of the ECHR and the jurisprudence of the ECtHR.12 As a result, the main legal reference framework, the German Basic Law, has to be seen in conjunction with the ECHR. Therefore, German authorities – the lawmakers, the courts and the administration – must take the ECHR, in light of the jurisprudence of the ECtHR, into account. If they fail to do so, this can be a violation of both the German Basic Law and the ECHR simultaneously and an individual constitutional complaint can be based on an alleged violation of the ECHR in conjunction with the German Basic Law.13

8

9

10 11 12 13

Federal Constitutional Court, 26 March 1987, BVerfGE 74, 370; J. A. Frowein, ‘Einführung’, in Frowein and Peukert (eds.), Europäische Menschenrechtskonvention. EMRK-Kommentar, 2nd ed. (Kehl et al.: Engel, 1996), marginal no. 6; R. Uerpmann, Die Europäische Menschenrechtskonvention und die deutsche Rechtsprechung. Ein Beitrag zum Thema Völkerrecht und Landesrecht (Berlin: Duncker & Humblot, 1993), pp. 72ff. The term state law refers to the legislation adopted by one of the 16 state parliaments with in Germany’s federal structure. Federal Constitutional Court, 14 October 2004 (no. 2 BvR 1481/04), para. 47. Ibid., paras. 46–47. Ibid., para. 32. Ibid., para. 63; H.-J. Papier, ‘Execution and effects of the judgments of the European Court of Human Rights from the perspective of German national courts’, Human Rights Law Journal 27 (2006), 2. Technically, a constitutional complaint can be lodged with the Federal Constitutional Court on the ground of the corresponding article in the German Basic Law in conjunction with the rule of law.

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Secondly, the German Basic Law does not waive its sovereignty. For this reason the judgments of the ECtHR have to be taken into account, but not executed automatically by the German authorities. Thus, the authorities are enabled to deviate from the ECtHR’s judgments, and this must be stressed, exceptionally when there is no methodologically justifiable interpretation to avoid a violation of the German Basic Law.14 Due to the similar scope of the provisions of the German Basic Law and the ECHR, it is very likely that circumstances under which the ECtHR will not judge consistently with the parameters of the German Basic Law and in which a deviation might be justifiable will occur only rarely, if ever. German academic literature concerning the ECHR and the ECtHR judgments encompasses commentaries, books and articles about specific adverse judgments against Germany and also more general treatises regarding the applicability of the ECHR and ECtHR judgments in the German legal order.15 The most predominant issue discussed among legal practitioners and scholars continues to be the binding force of ECtHR judgments within the German legal order.16 The effect and binding force of ECtHR judgments within Germany and their judicial consequences have received widespread attention in scholarly literature and also in the press, especially in recent years. 14

15

16

‘There is therefore no contradiction with the aim of commitment to international law if the legislature, exceptionally, does not comply with the law of international agreements, provided this is the only way in which a violation of fundamental principles of the constitution can be averted.’ Federal Constitutional Court, 14 October 2004 (no. 2 BvR 1481/04), marginal no. 35. For the same opinion: H.-J. Papier, ‘Gerichte an ihren Grenzen. Das Bundesverfassungsgericht’, in Hilf, Kämmerer and König (eds.), Höchste Gerichte an ihren Grenzen (Berlin: Dunker & Humblot, 2008), p. 152. As for the reform process concerning the 14th Protocol see: M. Bertschi and H. Keller, ‘Erfolgspotential des 14. Protokolls zur Europäischen Menschenrechtskonvention’, Europäische Grundrechte Zeitschrift (2005), 204. C. Gusy, ‘Die Rezeption der EMRK in Deutschland’, in Grewe and Gusy, Menschenrechte in der Bewährung (Baden-Baden: Nomos, 2005), pp. 137–156; E. Klein, ‘Should the binding effect of judgments of the European Court of Human Rights be extended?’, in Mahoney, Matscher, Petzold and Wildhaber (eds.), Protecting human rights. The European perspective. Studies in memory of Rolv Ryssdal (Köln et al.: Heymann, 2000), pp. 705–713. See as an extract of the literature: H.-J. Cremer, ‘Kapitel 32: Entscheidungen und Entscheidungswirkung’, in Grote and Marauhn (eds.), EMRK/GG. Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz (Tübingen: Mohr Siebeck, 2006), pp. 1704–1771; H.-J. Cremer, Zur Bindungswirkung von EGMR-Urteilen – Anmerkung zum Görgülü-Beschluss des BVerfG vom 14.10.2004’, Europäische Grundrechte Zeitschrift (2004), 683; J. Meyer-Ladewig and H. Petzold, ‘Die Bindung deutscher Gerichte an Urteile des EGMR’, Neue Juristische Wochenschrift (2005), 15; Papier, ‘Execution and effects of the judgments of the European Court of Human Rights’, Human Rights Law Journal 27 (2006), 1; G. Ress, ‘Wirkungen und Beachtung der Urteile und Entscheidungen der Straßburger Konventionsorgane’, Europäische Grundrechte Zeitschrift (1996), 350.

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Until 2004, the question of the applicability was addressed only by legal professionals, and did not take into account the larger context of human rights protection. This changed in 2004, when the ECtHR found in two cases that Germany had violated the ECHR. In Görgülü v. Germany the Court found a violation of Article 8 of the ECHR because a father was not granted visiting rights allowing him to see his child.17 In Hannover v. Germany, the publication of private photographs was also deemed to violate Article 8 of the ECHR.18 These two cases triggered extensive discussion within Germany, discussion which had been absent twenty years earlier, when in 1985 the Federal Constitutional Court delivered a decision concerning the binding force of the ECHR.19 In contrast, the judgments of the ECtHR in 2004 were accompanied by domestic developments that fomented public controversy. In Görgülü v. Germany, a higher regional court had deliberately refused to take the ECtHR’s judgment into account.20 This forced the Federal Constitutional Court to lay down the basic principles of the ECHR’s binding force.21 In Hannover v. Germany the Federal Constitutional Court itself was overruled. This was perceived as highly controversial within Germany. Following the Görgülü case, recent legal analyses adopt a number of different views regarding implementation of ECtHR judgments. There is an understanding that ECtHR judgments do not have any direct binding force in the sense that they overrule national court judgments, administrative acts or national legislation. In addition, ECtHR reasoning in a case is not seen to prescribe how to redress infringement of the ECHR by the respondent state. As most legal scholars conclude, this falls completely within the state’s discretion.22 However, the judgments directly bind the respective authority, including the courts, within the legal framework of the state. They do so on the basis of Article 46 ECHR, in conjunction with the national legislation transforming the ECHR into domestic law and the rule of law laid down in the German Basic Law. This legal reasoning is considered to reflect a new approach, as it combines the ECHR and the national legal order to guarantee the applicability of the ECHR within the framework of the German Basic Law.23 Strasbourg 17 18 19

20 21 22

23

ECtHR, Görgülü v. Germany (no. 74969/01), 26 February 2004. ECtHR, Hannover v. Germany (no. 59320/00), 24 June 2004. See Federal Constitutional Court, Pakelli, 11 October 1985, Neue Juristische Wochenschrift (1986), 1425–1427. OLG Naumburg, 30 June 2004, Familienrechtszeitung (2004), 1510–1512. Federal Constitutional Court, 14 October 2004 (no. 2 BvR 1481/04). J. Meyer-Ladewig, Konvention zum Schutz der Menschenrechte und Grundfreiheiten. Handkommentar, 2nd ed. (Baden-Baden: Nomos, 2005), Article 46, marginal no. 3; Cremer, ‘Entscheidungen’, marginal no. 67. Meyer-Ladewig and Petzold, ‘Bindung’, 20.

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Court judgments oblige public authorities to revoke or alter an administrative act found to be in breach of the ECHR, as long as this does not contradict the German Basic Law. If existing legislation is a source of infringement of the ECHR, then the lawmaker is obliged to amend it.24 Furthermore, Strasbourg Court judgments form a basis for national courts to reopen cases upon the request of the applicant and to take their findings into consideration. While some have claimed the above legal perspectives of the binding force of judgments were the state of the art before the contentious ruling of the ECtHR in the Görgülü case,25 others have stressed that the Federal Constitutional Court had developed its original interpretation of the binding character of Strasbourg judgments.26 The domestic effect of judgments pronounced against other states has also preoccupied the academic and legal community. It raises the contentious question of whether jurisprudence against other member states of the Council of Europe should also be taken into consideration in Germany.27 In general, most of the authors who have written on this stress that neither the ECHR nor the Federal Constitutional Court foresee any directly binding effect in Germany of ECtHR judgments pronounced against other states.28 However, in the light of the ECtHR’s exceptional function within the European human rights protection system, many argued that such ECHR judgments had to be taken into account in cases of alleged conscious violation of the Convention with clearly parallel circumstances. Such authors argued that the judgments had to influence the national legal system or that the German Basic Law had to be interpreted in the light of the results of the Court.

24

25 26

27

28

J. A. Frowein and W. Peukert, ‘Artikel 53 (Bindende Kraft der Urteile)’, in Frowein and Peukert (eds.), Europäische Menschenrechtskonvention, marginal no. 7. Meyer-Ladewig and Petzold, ‘Bindung’, 17. S. Kadelbach, ‘Der Status der Europäischen Menschenrechtskonvention im deutschen Recht’, Juristische Ausbildung (2005), 484; Cremer, ‘Bindungswirkung von EGMR-Urteilen’, 692. See Frowein and Peukert, Artikel 53, marginal no. 7; Gusy, ‘Rezeption’, pp. 154–156; H. Mosler, ‘Schlussbericht’, in Maier, Europäischer Menschenrechtsschutz. Schranken und Wirkungen (Heidelberg: Müller, 1982), pp. 355–369; J. Polakiewicz, Die Verpflichtungen der Staaten aus den Urteilen des Europäischen Gerichtshofs für Menschenrechte (Berlin: Springer, 1993), pp. 279ff. and pp. 347–354. See for the question of the interpretation of fundamental rights provisions: C. Grewe, ‘Vergleich zwischen den Interpretationsmethoden europäischer Verfassungsgerichte und des Europäischen Gerichtshofes für Menschenrechte’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2001), 459–474. C. Grabenwarter, Europäische Menschenrechtskonvention, 3rd ed. (München: Beck, 2008), p. 98; Meyer-Ladewig and Petzold, ‘Bindung’, 18; E. Pache, ‘Die Europäische Menschenrechtskonvention und die deutsche Rechtsordnung’, Europarecht 3 (2004), 406.

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The question of applicability of judgments against other states has practical repercussions for litigants in Germany. Above all, asylum seekers engaged in litigation in Germany can refer to cases such as Ahmed v. Austria. In this case, the ECtHR interpreted Article 3 ECHR in a way as to engage the responsibility of a state seeking to extradite foreigners to a country where they face a risk of torture and degrading or inhuman treatment.29 Due to the effects of the ECtHR judgments within the German legal order, the relationship of the Federal Constitutional Court and the ECtHR is also important for understanding the consequences for marginalised individuals and minorities appealing to the ECtHR. A central issue concerns the possibility that an ECtHR judgment in response to an individual complaint may contradict an earlier decision of the Federal Constitutional Court in the same case. As the importance of the judgments of the ECtHR has increased over the time, this issue of which judgment should prevail judicially in the German legal system has emerged. Consideration of this issue is also linked to the consequences that ECtHR judgments can have within the administrative and judicial system. If, for instance, the Federal Constitutional Court decided the publication of certain photographs did not violate the German Basic Law, while the ECtHR ruled to the contrary, the competent national authorities (in this case the courts) would theoretically have to consider both judgments.30 This conundrum emerged in the aftermath of the judgment in the case of Von Hannover, in which the ECtHR found the interpretation regarding the protection of private life provided by the Federal Constitutional Court in reference to the German Basic Law had violated the ECHR.31 It was argued that a possible solution to this conflict could be found in the implementation of the ECtHR judgment, without overruling the judgment of the Federal Constitutional Court, and within the legal frame outlined in the Görgülü case.32 This means that within the legal framework of the German Basic Law, the respective national authorities must generally abide by the judgments of the ECtHR. The repercussions for a litigant are obvious: the outcome of proceedings before a German court, including the Federal Constitutional Court, can be altered by the ECtHR.

29

30 31

32

ECtHR, Ahmed v. Austria (no. 25964/94), 17 December 1996, para 39. The ECtHR took the same stance in Chahal v. United Kingdom (no. 22414/93), 15 November 1996. See for instance ECtHR, Hannover v. Germany (no. 59320/00), 24 June 2004. R. Mann, ‘Auswirkungen der Caroline-Entscheidung des EGMR auf die forensische Praxis’, Neue Juristische Wochenschrift (2004), 3220. Cremer, ‘Bindungswirkung von EGMR-Urteilen’, 697–698. See Federal Constitutional Court, 14 October 2004 (no. 2 BvR 1481/04).

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An important debate among legal practitioners concerns migrants in Germany and the legal obligations that derive from Article 8 ECHR with regard to a) the execution of an expulsion order with a permanent prohibition on reentering Germany after a criminal conviction and b) the issuing of a residence permit.33 The question whether a migrant can be extradited for an indefinite period of time, or whether he or she must be issued a residence permit, has arisen in cases in which migrants have family ties within Germany. The ECtHR uses a range of criteria such as marriage to a person also living in Germany, the length of stay in Germany, the presence of children born in Germany and the job situation of a migrant to decide on the extent to which an expulsion order is in conformity with the Convention. In this regard, the notion of entrenchment was used to describe the situation of a migrant in Germany.34 In two judgments against Germany the ECtHR decided that the execution of a permanent expulsion order violated Article 8 ECHR because the German authorities did not take the living situation of the applicants into due consideration.35 The question of whether to grant a residence permit to certain migrants occurred after the ECtHR adopted several similar judgments against other states.36 This development is very interesting because it exemplifies, in a contentious area, the effect of the relevant ECtHR’s judgments in similar cases involving interpretation of Article 8 ECHR. The views of German legal scholars and practitioners on this point have been divided. While one approach has highlighted that Article 8 ECHR should be interpreted restrictively,37 another has stressed that a restrictive interpretation would not comply with Article 8 ECHR’s scope.38 33

34 35

36 37 38

M. Eckertz-Höfer, ‘Neuere Entwicklungen in Gesetzgebung und Rechtsprechung zum Schutz des Privatlebens’, Zeitschrift für Ausländerrecht (2008), 41; M. Hoppe, ‘Neuere Tendenzen in der Rechtsprechung zur Aufenthaltsbeendigung – Gibt es eine gemeinsame Linie in den Entscheidungen von EGMR, EuGH und BVerfG?’, Zeitschrift für Ausländerrecht (2008), 251; J. Bergmann, ‘Aufenthaltserlaubnis auf Grund von “Verwurzelung” ’, Zeitschrift für Ausländerrecht (2007), 128; G. Benassi, ‘Die Bedeutung der humanitären Aufenthaltsrechte des § 25 Abs. 4 und 5 AufenthG im Lichte des Art. 8 EMRK’, Informationsbrief Ausländerrecht (2006), 397; M. Hoppe, ‘Verwurzelung von Ausländern ohne Aufenthaltstitel - Wann kann Art. 8 I EMRK zu einem Anspruch auf eine Aufenthaltserlaubnis nach § 25 V AufenthG verhelfen?’, Zeitschrift für Ausländerrecht (2006), 125; D. Thym, ‘Respect for private life and family life under Article 8 ECHR in immigration cases: A human right to regularize illegal stay?’, International and Comparative Law Quarterly (2008), 87. See Bergmann, ‘Aufenthaltserlaubnis auf Grund von “Verwurzelung” ’, 128–131. ECtHR, Keles v. Germany (no. 32231/02), 27 October 2005; ECtHR, Yilmaz v. Germany (no. 52853/99), 17 April 2003. See Thym, Respect for private life, 95ff. Hoppe, ‘Verwurzelung’, 128–129. Benassi, ‘Aufenthaltsrechte’, 403.

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Another issue relevant to the protection of migrants and asylum seekers regards the applicability of Article 3 ECHR in interpretations of the ECtHR. The ECtHR clearly includes risks posed by non-state actors (such as paramilitary groups not in the service of a state) within the ambit of Article 3 ECHR. Cases such as T.I. v. UK demonstrate this.39 Additionally, the state that expels a foreigner can be held accountable in cases in which an individual faces a real risk of ill-treatment in the light of Article 3 ECHR if removed to another state (see Chahal v. UK40). In Germany, the interpretation of the ECtHR regarding risk posed by non-state actors has been questioned because it curtails the state’s power to expel foreigners. Until the amendment of the Federal Aliens Act, which came about in the wake of the obligation to implement the EU-directives on asylum procedures, the Federal Administrative Court held the opinion that only state actors can act in the meaning of Article 3 ECHR.41 Only state actors were therefore legally perceived as liable for infringing the rights guaranteed under Article 3 ECHR. The discussion as to whether nonstate actors fall into the ambit of Article 3 ECHR has lost its practical implications, because the new immigration act of 2004 and its revision in 2007 amended the relevant provision to include non-state actors.42 Secondly, the applicability of the standards developed by the ECtHR has been transferred to the border management of the European Union (FRONTEX).43 EU practices at the common border, especially regarding the coastlines to Africa, have been assessed against the background of Article 3 ECHR. In this regard, the lawfulness of the immigration and asylum policy of the EU has been questioned and its applicability outside the territory of the EU, when involving authorities of EU member states, has been stressed.44 The applicability of the ECtHR standards in the area of the EU-border management must be monitored. Some recent publications in Germany question the absolute character of the prohibition against torture, one of the core principles of the ECHR. Mainly in the wake of the events in New York in September 2001 and following the

39 40 41

42

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ECtHR, T.I. v. United Kingdom (no. 43844/98), 7 March 2000. ECtHR, Chahal v. United Kingdom (no. 22414/93), 15 November 1996. B. Huber, ‘The application of human rights standards by German courts to asylum-seekers, refugees and other migrants’, European Journal of Migration and Law (2001), 171, at 176ff. See § 60 para 1, sentence 4 Residence Act [Aufenthaltsgesetz]. The 2007 revision included the Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification for refugee status and thus clarifies the notion of acts of persecution. U. Lisson and R. Weinzierl, Border Management and Human Rights. A study of EU Law and the Law of the Sea (Berlin: Deutsches Institut für Menschenrechte, 2007). Ibid., pp. 42–70.

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abduction and murder of a young boy in Germany, some legal commentators have sought to challenge the absolute character of Article 3 ECHR. They argue that under exceptional circumstances and within the framework of existing legal requirements, torture might be allowed or at least made legal, meaning that such actions might be exculpated from criminal convictions.45 Such fringe ideas, however, contradict the fundamental principles of our Western democracies based on the respect of the dignity of each human being and the inseparable concept of the rule of law.46

3. Developments in Germany and Litigation in the ECtHR on Claims Raising Articles 8-11//14 ECHR as well as Claims Involving Minorities and Migrants The rights of aliens in Germany have evolved recently in tandem with changing political perceptions of migrants and (international) migration. At the beginning of the new millennium, the governing parties in Germany discussed a new immigration act that was to operate under a different paradigm from the preceding legal framework relating to migrants. Until then, immigration law had been understood as alien law and the focus was laid on the requirements to enter Germany, to receive a residence permit and the circumstances under which a foreigner might be expelled. This changed in 2004, when the new act that came into force involved new regulations that now concerned the integration of migrants. One must also highlight the semantic shift in the new legislation that redefined the focus from ‘alien’ law to ‘immigration’ law. This shift in the legislation was accompanied by a shift in the attitude of political actors to the effect that Germany must be seen as a country with a continuous influx of migrants. Whether the new immigration legislation and the political shift have influenced societal attitudes, cannot be determined with certainty. However, similarly to other societies, German society has not always been open towards international migrants and this has been reflected in legislation and court practice.

45

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O. Depenheuer, Selbstbehauptung des Rechtsstaats (Paderborn: Schöningh, 2007), p. 72; G. Wagenländer, Zur strafrechtlichen Beurteilung der Rettungsfolter (Berlin: Duncker und Humblot, 2006), pp. 191–196. Polzin undertakes a critical appraisal of the theoretical approach and concludes that a suspension of the prohibition of torture is illegal under all circumstances and not favourable. See J. P. Polzin, Strafrechtliche Rechtfertigung der >Rettungsfolter
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There are few ECtHR judgments against Germany pertaining to marginalised individuals or minority groups that have led to changes in national legislation. However, the judgments were important for the persons concerned and have had some larger implications. In the case of Luedicke and Others v. Germany47 in 1978, the ECtHR decided that a foreigner, who was accused of having committed a crime and who was not able to speak and understand German, must be provided with an interpreter free of charge in a criminal court procedure. The new regulation to that effect was only adopted in 1989, eleven years after the judgment.48 It can only be assumed that it was not deemed necessary to respect the principle of fair trial in this regard. Another cases concerned the public child benefit system in Germany.49 The legislation in force in the 1990s stipulated that foreigners with an unstable residence status should be excluded from child benefit payments. It is likely that the legislature wanted to minimise the incentives for migrants to apply for child benefits. Another divergence between German judicial approach and ECtHR jurisprudence concerns the interpretation of Article 3 ECHR mentioned earlier. As already explicated, the Federal Administrative Court did not see non-state agents, for example in civil war situations, as inflicting harm within the ambit of Article 3 ECHR.50 In its review of T.I. v. United Kingdom, the ECtHR ascertained that the German legal system contains ‘[…] an apparent gap in protection resulting from the German approach to non-State agent […]’ risk, even as the Court concluded that this risk had been diminished to a certain extent.51 The restrictive approach of the Federal Administrative Court showed a tendency to keep a certain group out of the ambit of this article and therefore out

47 48

49

50

51

ECtHR, Luedicke and Others v. Germany (no. 6210/73), 28 November 1978. Following Luedicke the ECtHR decided in Öztürk v. Germany in 1984 that the costs provision regarding regulatory offence procedures also violates the ECHR. Subsequently, the German legislative amended relevant legislation in accordance with the Court’s findings. The legislative rectified the law in 1989 (Gesetz vom 15. Juni 1989, BGBl. I, S. 1082) and amended the relevant provisions in the Court Costs Act and the Code of Criminal Procedure [Strafprozessordnung] respectively. See: O. Kieschke, Die Praxis des Europäischen Gerichtshofs für Menschenrechte und ihre Auswirkungen auf das deutsche Strafverfahrensrecht (Berlin: Duncker und Humblot, 2003), pp. 156–162 and D. Rzepka, Zur Fairness im deutschen Strafverfahren (Frankfurt a.M.: Klostermann, 2000), pp. 80–82. See also Council of Europe, General measures adopted to prevent new violations of the European Convention on Human Rights, H/Exec (2006)1, updated June 2005, p. 56. ECtHR, Niedzwiecki v. Germany (no. 58453/00), 25 October 2005; ECtHR, Okpisz v. Germany (no. 59140/00), 25 October 2005. See, inter alia, Federal Administrative Court, 2 September 1997, Neue Zeitschrift für Verwaltungsrecht (1999), 311. ECtHR, T.I. v. United Kingdom (no. 43844/98), 7 March 2000.

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of the territory of Germany. Subsequently, this discrepancy with the jurisprudence of the ECtHR was rectified by the German legislature simultaneously with the adoption of the Council directive in asylum procedures.52 Both included non-state actors in third countries as capable of posing a life-threatening risk to an individual seeking asylum and as such regarded the presence of such actors as a reason to prohibit expulsion.53 Asylum seekers have frequently sought to alter the outcome of national asylum procedures by litigating before the ECtHR. A regular flow of complaints originates from persons belonging to the Kurdish minority in Turkey as well as persons from Sri Lanka, Angola, Iran, and other parts of the world. Such petitions have revolved around the question as to whether German authorities (the Federal Office for Migration and Asylum, the administrative courts and ultimately the administrative body responsible for expulsion) have given due consideration to Article 3 ECHR.54 In these cases, applicants who faced expulsion alleged that a violation of Article 3 ECHR would occur if the expulsion were enforced. In some of those cases litigants did not fulfil the basic admissibility criteria concerning the exhaustion of domestic remedies. In the remaining cases, the ECtHR could not discern a violation of the ECHR, as it assumed the German authorities had assessed the respective cases sufficiently. This practice highlights an interesting controversial political and legal discussion within Germany. The procedures of the Federal Office for Migration and Asylum, conducting the application procedures, are viewed as highly controversial amongst experts (such as lawyers, church organisations and the UNHCR).55 It is claimed that the interviews during the procedures are insufficient, as they focus disproportionately on information prejudiced towards denying the recognition of refugee status. In addition, so the critics claim, no special safeguards are in place for vulnerable individuals such as women fleeing sexual violence. Besides migrants and asylum seekers, other cases against Germany reviewed by the ECtHR refer to a broader, less homogenous spectrum of marginalised 52

53

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55

See Article 6(c) of the Council Directive 2004/83/EC of 29 April 2004 on the minimum standards for the qualification as refugees, Official Journal L 304, 30 September 2004, pp. 12–23. It was not for the case law of the ECtHR to alter the legislation, but the necessity to incorporate the EU-law. The former discussion of Article 3 ECHR and the applicability for non-state actors has been solved due to the EU-asylum directives. See for the former debate: Huber, ‘The Application of human rights standards’, 176–179. See Amnesty International et al. (eds.), Memorandum zur derzeitigen Situation des deutschen Asylverfahrens (Frankfurt a.M.: 2005); UNHCR, UNHCR-Eckpunkte zum Flüchtlingsschutz (Berlin: 2002), pp. 4–5.

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individuals who bring petitions concerning health care issues, freedom of opinion, and religious interests. In the case Storck v. Germany,56 the applicant pursued her aim to receive pecuniary just satisfaction after her confinement in a private psychiatric clinic and the forced administration of drugs. The claim for pecuniary just satisfaction against the private clinic was dismissed by the Bremen Court of Appeal in 2000, based on the finding that the applicant’s claim was legally time-barred under domestic legislation.57 As the litigant had no chance to alter the outcome of the court proceedings domestically, she lodged a complaint with the ECtHR claiming violation of Articles 5, 6 and 8 ECHR. Another case concerning health care issues originated with an applicant’s claim for reimbursement following gender reassignment surgery.58 She requested reimbursement for pharmaceutical expenses for hormone treatment.59 A civil servant dismissed from her job due to her political activities in Germany also claimed protection under the ECHR before the Strasbourg Court.60 In 1972, the Federal Chancellor and the Prime Ministers of the states (Länder) decided upon a common approach and adopted a decree on the employment of extremists” in the civil service.61 This was amended after a decision of the Federal Constitutional Court in 1975.62 In the German context, membership in an extreme left or right party was regarded as a breach of the loyalty considered necessary in a public servant in a democracy. After the breakdown of communist regimes and the fall of the Berlin Wall, this decree was repealed in some states or amended after taking the new political situation into consideration. German media reports that some 130 civil servants were dismissed on the basis of the decree.63 Although it is impossible to verify this fact, it seems justifiable to assume the decree affected a certain number of people who can be deemed a marginalised group because of their political opinion. In Vogt v. Germany, the litigant was dismissed from her position as a schoolteacher and permanent civil servant because of her activities in a

56 57 58 59 60 61

62 63

ECtHR, Storck v. Germany (no. 61603/00), 16 June 2005. Ibid., paras. 36–37. ECtHR, Van Kück v. Germany (no. 35968/97), 12 June 2003. Ibid., para. 12. ECtHR, Vogt v. Germany (no. 17851/91), 26 September 1995. Decree on employment of extremists in the civil service, Bulletin of the Government of the Federal Republic of Germany no. 15, 3 February 1972, p. 142. See Federal Constitutional Court, 22 May 1975, BVerfGE 39, 334ff. See: Parliamentary activity of the faction “Die Linke” at the Federal Parliament. Deutscher Bundestag, Drucksache 16/6210, Einleitung [German Parliament, Document 16/6210, Introduction].

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German communist party, a party which had not been prohibited by the Federal Constitutional Court. Since the litigant was deprived of a job that allowed her to make a living, she tried unsuccessfully to contest her dismissal before the domestic courts and to resume her post. At the same time, the political events of 1989 and the fall of the Berlin Wall triggered a new political perception of extreme political activities or opinions. In this changing political and social climate, the state of Lower Saxony reinstated the applicant as a teacher in 1991, after the state government had repealed the decree on the employment of extremists.64 However, she lodged a complaint with the ECtHR to claim compensation for the loss of her salary and for non-pecuniary damage. Her claim also sought to clarify whether her dismissal violated Article 10 ECHR. The last set of cases brought by marginalised individuals concerns religious groups who seek to carry out their religious activities or to challenge public statements that criticise the aims and methods of the group. In the four relevant cases accessible at the HUDOC database,65 public authorities refused to alter their practice of refusing to grant members of religious groups certain rights they requested. One of the complaints assessed by the ECtHR originated from parents belonging to a Christian community who alleged violation of Article 8, Article 9 and Article 2 Protocol no. 1 ECHR.66 The parents sought to teach their children on their own and resisted compulsory school attendance in Germany. Another case concerns members of the organisation Church of Scientology. This case originated from a family living in the state of Bavaria in Germany.67 The Bavarian school administration had published an information brochure informing parents and pupils about the practices of the Church of Scientology and urging them to avoid the organisation. This publication was part of a joint strategy of the Federal Government and the states to reduce the influence of the organisation Church of Scientology and any related groups. It can be assumed that the organisation Church of Scientology itself had a strong interest in this case. Indeed, the information brochure described the organisation in general and it would be very unusual if the local group or the German branch of the church had not taken any notice of this.68

64 65

66 67 68

See ECtHR, Vogt v. Germany (no. 17851/91), 26 September 1995, para. 24. The ECtHR’s HUDOC portal provides a user friendly collection of decisions and judgments of the Court. ECtHR, Konrad and Others v. Germany (no. 35504/03), 11 September 2006. EComHR, Keller v. Germany (no. 36283/97), 4 March 1998. See the application lodged by the organisation itself. EComHR, Scientology Kirche Deutschland e.V. v. Germany (no. 34614/97), 2 April 1997.

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4. ECtHR Jurisprudence in the Cases Under Review Having reviewed the claims brought by marginalised individuals and minorities against Germany, we now turn to the responses of the ECtHR. Have ECtHR judgments in the cases under examination vindicated individuals? Did they provide more expansive approaches to the rights claimed, and to what extent did they do so? In two judgments against Germany, the ECtHR challenged the expulsion order issued by German authorities. In the case Keles v. Germany69 the ECtHR found that by issuing an expulsion order with a permanent prohibition to reenter Germany, German authorities had unlawfully interfered with the applicant’s right to respect for his family life. The applicant, a Turkish national, had been living lawfully in Germany for 27 years. At the time of the judgment, he was married and had four children. His entire family was living in Germany when the expulsion order was issued. The order was issued following the applicant’s conviction for several criminal offences. These included insulting behaviour, negligent drunken driving, reckless driving, driving without a driving license and inflicting bodily harm. The competent regional administration ordered the applicant’s expulsion to Turkey. Taking all the facts of the case into consideration the ECtHR concluded that there had been a violation of Article 8 ECHR, because ‘[…] an unlimited exclusion from the German territory violates the applicant’s rights to the enjoyment of his private and family life’.70 Similarly, the case Yilmaz v. Germany71 concerned a Turkish national who was born in Germany in 1976 and had lived there lawfully with a permanent residence permit. After having committed several crimes, he was issued an indefinite expulsion order, despite his family ties in Germany. By the time of the judgment, he was living in a relationship and was the father of one child. The applicant left Germany in 2000 after receiving the expulsion order. The ECtHR found the German authorities did not take all relevant circumstances into consideration, especially with regard to the indefinite duration of the expulsion order, and found a violation of Article 8 ECHR. The social benefit system and the costs for interpreters in criminal court proceedings are two other areas implicated in ECtHR judgments against Germany. Regarding the child benefit system that applied between 1994 and 1995, the federal legislator distinguished between migrants with the prospect of staying in Germany permanently and migrants who lived in Germany only

69 70 71

ECtHR, Keles v. Germany (no. 32231/02), 27 October 2005. Ibid., para. 66. ECtHR, Yilmaz v. Germany (no. 52853/99), 17 April 2003.

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temporarily. The decision by the competent authority in Germany was based on the different legal residence permits which determined, to a certain degree, the varying prospects of a permanent stay. Only persons with a permanent residence permit or a long term permit could benefit from the child benefit system. In the cases Okpisz v. Germany and Niedzwiecki v. Germany72 the ECtHR considered the claims of applicants who alleged violation of Article 8, in conjunction with Article 14 ECHR, on grounds of being denied child benefits. The child benefit legislation challenged before the ECtHR had already been quashed by the Federal Constitutional Court in 2004.73 Subsequently, the ECtHR concluded (in 2005) that there had been a violation of Article 8 in conjunction with Article 14 ECHR, because it could not discern any reasons to justify the different treatment of aliens. The ECtHR referred to the decision of the Federal Constitutional Court and decided that German authorities were obliged to grant the child benefit to the applicants. As for the costs for an interpreter in criminal court and regulatory offence proceedings (Ordnungswirdrikeitsverfahren), the ECtHR vindicated the claims of applicants in the cases Luedicke and Others v. Germany in 1978 and Öztürk v. Germany in 1984.74 The applicants lacked sufficient knowledge of German to enable them to accurately follow the court proceedings. Consequently, the competent courts had decided to assist them with an interpreter in accordance with national law (Mr. Luedicke was a citizen of the United Kingdom, the other applicants had other nationalities; Mr. Öztürk was a citizen of Turkey). However, after the criminal conviction in the Luedicke case, the applicant (along with the other applicants) had to pay the costs for the interpreter in the criminal procedure. The same had taken place in the Öztürk case in a regulatory offence procedure. Taking all circumstances into consideration, the ECtHR could not find a justification as to why the costs were transferred to the applicants. If therefore found this court practice violated Article 6 ECHR. The ECtHR also vindicated the claim of an applicant against the state which concerned the right of freedom of expression of civil servants. In the case Vogt v. Germany75 the ECtHR reviewed an application by a teacher, who had been appointed as a permanent civil servant of the state of Lower-Saxony. She had taught German and French and her work abilities had been described as entirely satisfactory. She had been suspended from her duties and finally 72

73 74

75

ECtHR, Okpisz v. Germany (no. 59140/00), 25 October 2005; ECtHR, Niedzwiecki v. Germany (no. 58453/00), 25 October 2003. Federal Constitutional Court, 6 July 2004 (nos. 1 BvL 4/97, 1 BvL 5/97 and 1 BvL 6/97). ECtHR, Luedicke, Belkacem and Koç v. Germany (no. 6210/73), 28 November 1978; ECtHR, Öztürk v. Germany (no. 8544/79), 21 February 1984. ECtHR, Vogt v. Germany (no. 17851/91), 26 September 1995.

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dismissed due to her engagement in various activities on behalf of the German Communist Party (DKP). She had allegedly failed ‘[…] to comply with the duty of loyalty to the Constitution […]’.76 The decision was based on a state provision adopted to implement the decree on employment of ‘extremists’ in the civil service and the Lower Saxony Civil Service Act.77 The Court concluded the dismissal of the applicant was disproportionate and violated Article 10 ECHR.78 The fall of the Berlin Wall and the changes after 1989 in the world politics had also an effect on the assessment of civil servants’ loyalty. The practice of scrutinising each civil servant with regard to the question of state loyalty has changed. Since communism is no longer regarded as a serious threat, the threshold for the decision to dismiss a civil servant was accordingly lifted. In fact, the applicant herself was already re-employed by the state (Land) of Lower-Saxony by the time the ECtHR decided the case in 1996. Furthermore, the Federal Government has stated in the Federal Parliament that the judgment in the case Vogt v. Germany is to be taken into due consideration in the practice of the state authorities.79 One litigant who did not enjoy the full array of rights because of their confinement in psychiatric clinics also appealed to the ECtHR to challenge national court decisions. In Storck v. Germany in 2005 the ECtHR vindicated the claims of an applicant who alleged a violation of Article 5 and Article 8 ECHR.80 From 1977 till 1979, the applicant had been unlawfully deprived of her liberty while locked in a private psychiatric clinic at her father’s request. In addition, medical treatment had been administered against her will. The applicant, who had attained her majority in 1977, had never been placed under guardianship. She had never signed a declaration that she agreed with the placement in the clinic nor had there been a judicial decision which could have authorised the detention.81 The applicant had escaped from the private clinic in 1979 and had been forcefully brought back by the police. The claim for financial compensation against the private clinic was dismissed by the Bremen Court of Appeal in 2000 with the reasoning that the claim was timebarred. The domestic court also found she had not sufficiently proved she had expressly objected to her stay in the psychiatric hospital.82 The ECtHR concluded the lack of a sufficient state control was imputable and constituted

76 77 78 79 80 81 82

Ibid., para. 11. Ibid., paras. 28, 30, 31. Ibid., para. 61. Deutscher Bundestag, Drucksache 16/6210. ECtHR, Storck v. Germany (no. 61603/00), 16 June 2005. Ibid., paras. 14–15. Ibid., paras. 36–37.

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a breach of Article 5 ECHR. ‘[…] the respondent State has breached its existing positive obligation to protect the applicant against interferences with her liberty by private persons […]’.83 The medical treatment in the private clinic also constituted a violation of Article 8 ECHR. It must also be noted that the ECtHR also found a failure of the Bremen Court of Appeal to interpret the national law in the spirit of Article 5 ECHR.84 The national courts’ approach to gender reassignment surgery led to the second case in the area of health care against Germany. It concerned a private health insurance company’s actions in declining to reimburse the applicant for costs after she had undergone gender reassignment surgery. In Van Kück v. Germany the Court concluded there had been a violation of Article 6 and Article 8 ECHR, thus challenging the domestic courts’ approach as lacking a fair balance between the interests of the private health insurance company and the applicant.85 The ECtHR referred to the reasoning of the domestic court that reproached the applicant for ‘[…] having deliberately caused her transsexuality’.86 The ECtHR vindicated the position of the applicant by declaring that ‘In the light of recent developments […], the burden placed on a person to prove the medical necessity of treatment, including irreversible surgery, in one of the most intimate areas of private life, appears disproportionate.’87 Interestingly, only in two cases (traceable in the HUDOC-database) could a friendly settlement be reached by the applicants.88 It is very likely that the German authorities deemed it appropriate to agree during the Court procedure in order to avoid a finding of a violation of the ECHR. In the case Kalantari v. Germany89 the ECtHR declared the case admissible in September 2000 because the expulsion of the Iranian applicant to Iran ‘[…] could result in the applicant’s subjection to inhuman and degrading treatment’.90 Before this decision, the ECtHR had already applied rule 39 of the Rules of Procedure and pronounced an interim measure addressed to the

83 84 85 86 87 88

89 90

Ibid., para. 108. Ibid., para. 99. ECtHR, Van Kück v. Germany (no. 35968/97), 12 June 2003, para. 84. Ibid., para. 81. Ibid., para. 82. It cannot be ascertained in which cases friendly settlements were reached before an application was declared admissible. ECtHR, Kalantari v. Germany (no. 51342/99), 11 October 2001. Cited by Council of Europe, Committee of Ministers, Resolution ResDH(2002)154 concerning the judgment of the European Court of Human Rights of 11 October 2001 in the case of Kalantari v. Germany. See also ECtHR, Décision sur la recevabilité (no. 51342/99), 28 septembre 2000.

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German government not to expel the applicant.91 The factual background can be summarised as follows: The applicant had sought to be legally recognised as a refugee. This was not granted. In addition, the Federal Office for Migration and Asylum (the former Federal Office for Refugees) had decided that no reasons existed to bar the applicant’s expulsion. In 2001, after the ECtHR had declared the case admissible, the Office for Migration revoked the originate decision in which it ruled that there was no bar to his expulsion with regard to the then-applicable Aliens Act [Ausländergesetz]. The Office for Migration reassessed the case and found that such a bar did indeed exist. As such, the applicant could not be expelled to Iran because due to domestic regulations.92 After this development, the applicant agreed to a friendly settlement. Before 1998, in one case the European Commission of Human Rights was called upon to decide in a case concerning the expulsion of a citizen from Lebanon or Palestine (the nationality could not be clarified and was disputed between the parties). The judgment in this case resembles the judgments in the aforementioned cases regarding aliens’ expulsion from Germany.93 In El-Makhour v. Germany, the Commission declared the case admissible as the application raised complex issues of fact and law that could only be resolved by an examination on the merits.94 After the Commission declared the application admissible, the domestic authority decided to grant the litigant a provisional residence permit. This meant the domestic authorities agreed to grant a residence permit, providing the applicant undertook to commit no criminal offences.95 On this basis, a friendly settlement was agreed between the parties.96 Most of the applications, which stemmed from Germany and were lodged with the Strasbourg court, were declared inadmissible. In short, the Court considered the interferences of the German authorities to be justifiable. It might also be very likely that most of these cases did not fulfil the basic requirements for an admissible complaint, such as the exhaustion of the national judicial procedures. Nevertheless, the complaints lodged cast some

91

92

93 94

95 96

ECtHR, Kalantari v. Germany (no. 51342/99), 11 October 2001, para. 39. The German government was requested not to expel the applicant for several months. See ECtHR, Kalantari v. Germany (no. 51342/99), 11 October 2001, para. 45. However, this decision did not grant the status of a political refugee, which comprises some more social rights. EComHR, El-Makhour v. Germany (no. 14312/88), 10 July 1989. EComHR, El-Makhour v. Germany (no. 14312/88), decision on admissibility of 8 March 1989. EComHR, El-Makhour v. Germany (no. 14312/88), 10 July 1989, para. 12. Ibid, para. 12.

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light on interesting issues in Germany. Three categories of cases belonging to marginalised individuals and minorities shall be depicted here: asylum seekers in Germany, the claims of religious groups and the area of minority political groups and access to civil service posts. The most numerous group of inadmissible cases concerning marginalised individuals and minorities consists of asylum seekers who tried to avert their expulsion after a negative result of their claim to refugee status.97 Although the ECHR does not foresee the right for political asylum, the interpretation of Article 3 ECHR, in combination with the national residence law, can lead to a legal ban on expulsion or even a legal residence permit. The Commission and subsequently the ECtHR accepted the decisions of national authorities in such cases and did not question them. The rulings of the Strasbourg organs are as surprisingly uncritical – and as a result had almost no effect on the asylum procedures in Germany with regard to individual litigation.98 Interestingly, all cases relating to religious beliefs or religious activities stemming from Germany were declared inadmissible.99 The ECtHR and the Commission did not vindicate the claims of members of the organisation Church of Scientology regarding the state of Bavarian. The responsible state authorities had published an information brochure about the activities of the organisation Church of Scientology and how to avoid them. A similar situation applied in the claim of the organisation Church of Scientology itself relating to political debates in the German Parliament.100 Politicians had warned in such debates of perceived danger emanating from the organisation’s activities. The ECtHR considered the warnings of the state and federal governments within the right of Germany to interfere with the ambit of Article 9 ECHR. It appears that because the state authorities did not prohibit the organisation,

97

98

99

100

Only see: ECtHR, Kaldik v. Germany (no. 28526/05), 22 September 2005; ECtHR, Damla and Others v. Germany (no. 61479/00), 26 October 2000; ECtHR, Ebrahimzadeh v. Germany (no. 47547/99), 29 June 1999; ECtHR, Loganathan v. Germany (no. 44667/98), 8 December 1998; ECtHR, Ariz and Others v. Germany (no. 37669/97), 30 October 1998; ECtHR, Bezabi v. Germany (no. 43891/98), 29 October 1998; ECtHR, Basika-Nkinsa v. Germany (no. 47638/99), 31 August 1999; ECtHR, Amirthalingam v. Germany (no. 41088/98), 18 September 1998. This applies only for the asylum-procedures and not for the applicability of Article 3 ECHR as interpreted by the ECtHR. ECtHR, Islamische Religionsgemeinschaft v. Germany (no. 53871/00), 5 December 2002; ECtHR, Johannische Kirche and Peters v. Germany (no. 41754/98), 10 July 2001; EComHR, Beshara and Others v. Germany (no. 43696/98), 30 October 1998; EComHR, Keller v. Germany (no. 36283/97), 4 March 1998; EComHR, Scientology Kirche Deutschland e.V. v. Germany (no. 34614/97), 7 April 1997; EComHR, Universelles Leben e.v. v. Germany (no. 29745/96), 27 November 1996. EComHR, Scientology Kirche Deutschland e.V. v. Germany (no. 34614/97), 7 April 1997.

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but merely provided information on its practices, the ECtHR could not discern a violation of the ECHR. Finally, two further judgments pertain to the topic of political activities and access to civil service posts within the state. In Glasenapp v. Germany and Kosiek v. Germany the ECtHR examined applicants’ allegations that the respective states’ administration denial to grant them posts as civil servants violated Article 10 ECHR (freedom of expression).101 The applicants had both sought positions in the civil service, one as a schoolteacher and the other as a researcher at a state university. Due to their political activities (one applicant was active for the DKP - the German Communist Party- and the other for the far right NPD, the Nationalist Party of Germany), the states’ administrations had rejected their applications. In both judgments, the ECtHR did not challenge domestic decisions and found no violation of the ECHR. It drew a different conclusion only in the case of Vogt v. Germany, in which the ECtHR discerned a violation. Besides differences in the factual background of the cases concerning political orientation, the main difference was that the applicant in the case Vogt v. Germany had already been accepted as teacher, while in the other cases the applicants had sought to gain the post. Or to use the words of the ECtHR itself: ‘The Court considers, like the Commission, that the present case is to be distinguished from the cases of Glasenapp and Kosiek. In those cases the Court analysed the authorities’ action as a refusal to grant the applicants access to the civil service on the ground that they did not possess one of the necessary qualifications. Access to the civil service had therefore been at the heart of the issue submitted to the Court […].’102

5.

Conclusion

The importance of the ECtHR for the German human rights protection system is two-fold: Firstly, the individual litigant can change the domestic outcome of court proceedings before the ECtHR. Admittedly, the case law concerning Germany does not consist of a flux of cases in one and the same issue area. However, this does not diminish the ECtHR’s decisive role. Some of the cases concern factual circumstances that occur regularly, with the only difference being that they involve different individuals. However, the role of the human rights protection mechanism of the Council of Europe must be seen in a broader

101

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ECtHR, Glasenapp v. Germany (no. 9228/80), 28 August 1986; ECtHR, Kosiek v. Germany (no. 9704/82), 28 August 1986. ECtHR, Vogt v. Germany (no. 17851/91), 26 September 1995, para. 44.

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context. This leads to the second important aspect of the ECtHR, namely its close inter-connection with the national protection mechanisms. The mere possibility that a judgment may be assessed by a European body often in and of itself has an effect even before a judgment is pronounced by the ECtHR. The average judge knows that his or her decision can be contested and scrutinised by a European court. This means the domestic court needs to explain its reasoning comprehensibly. It forces the sitting judge, where appropriate, to take the jurisdiction of the ECtHR into account. The domestic court’s judgment might otherwise lead to a finding against Germany by the ECtHR with compensation for the applicant. The inter-relationship of the domestic legal and judicial system and the European Convention system would be most harmonious, if the domestic protection system comprising courts, the administration and the lawmaker, reflected the ECtHR’s jurisdiction in their activities. However, to think that this could work smoothly without the possibility of an individual litigation procedure would be naïve, as is seen in the judgments of the ECtHR. The domestic protection system is linked – in a seemingly contradictory way – with the question why there exists only a very small number of adverse judgments against Germany stemming from marginalised individuals and minorities. As mentioned earlier, there is a group of people who as a rule do not seek recourse through the justice system (this includes especially people without legal residence status). Such people simply fall out of the judicial protection system and are very unlikely to appear before the ECtHR. Also, marginalised individuals and members of minorities do not necessarily have the financial means and personal skills to pursue litigation at all, or they may simply be unaware of the fact they have judicially protected rights. Interestingly, in case Kalantari v. Germany the applicant was supported by a Swiss human rights organisation and this has been the only case concerning asylum seekers to date in which the domestic administration’s decision was altered in a friendly settlement before the Court and as such resulted in a success from the view of the applicant. It appears this case may have had a chance because the applicant was advised by a specialised organisation. On the other hand, once the case law of the ECtHR is established and commonly known, the German authorities do generally implement it. That means the domestic protection system already rectifies – in general – possible human rights shortcomings and therefore pre-empts an adverse judgment by the ECtHR. Particularly, the Federal Constitutional Court already rectifies fundamental right infringements on a domestic level, or even comes to the same result such as in the child benefit cases.103

103

ECtHR, Okpisz v. Germany (no. 59140/00), 25 October 2005; ECtHR, Niedzwiecki v. Germany (no. 58453/00), 25 October 2003.

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Taking a broader approach concerning influence on the domestic legal system, one can discern several improvements. Firstly, the jurisdiction of the ECtHR has enhanced the position of migrants and asylum seekers in Germany, as developments since the judgments Chahal v. United Kingdom or Ahmed v. Austria have had an impact on domestic administrative practice. The interpretation of Article 3 ECHR in a way that engages the responsibility of the extraditing state has led to practical changes in the domestic administration. Secondly, the jurisdiction concerning migrants expelled with an unlimited expulsion order forces the domestic authorities to give more thorough consideration to the specific circumstances surrounding each expulsion order. It is very likely that the case law of the ECtHR will result in less rigid administrative practice. Thirdly, the judgments against other member states of the Council of Europe concerning the existence of migrant family ties within the host country has forced administrative practice to become more flexible in granting legal residence permits. Moreover, the situation for the costs for an interpreter in criminal court procedures and in regulatory offence procedures was clarified such a way that requires the state to provide it free of charge. In the adverse judgment Storck v. Germany delivered by the ECtHR, the Court mentioned the need to install and enact an effective and sufficient protection mechanism in German psychiatric clinics. In this regard, it was reiterated that it needs ‘[…] competent supervision on a regular basis of whether the confinement and medical treatment is justified’.104 The other cases exemplify the fact that ECtHR unfavourable judgments vis-à-vis Germany often tend to fill in sporadic and relatively secondary (but not unimportant) gaps in domestic rights protection rather than to redress systemic problems. Even in the case of Vogt v. Germany regarding membership of public servants in extremist organisations, there was a broader underlying problem at issue, but this was rectified before the ECtHR could make a decision on it. Bearing in mind that the ECHR influences the German legal order already without judgments against Germany, this result does not surprise. However, it should be reiterated that the importance of the ECHR is in the individual cases and the broader influence the Convention has through its interrelatedness with the national legal order.

104

ECtHR, Storck v. Germany (no. 61603/00), 16 June 2005, para. 103.

Chapter Six The European Court of Human Rights in Greece: Litigation, Rights Protection and Vulnerable Groups Evangelia Psychogiopoulou 1. Introduction The European Court of Human Rights (ECtHR) appears to have turned into a precious platform of support for less privileged individuals and communities. The Greek case is illustrative in this respect. Since 1985 when Greece recognised the right to individual petition, litigants from various politically and socially marginalised groups have resorted to the Court, claiming correction of domestic shortcomings in human rights protection. Clearly, the majority of applications lodged with the ECtHR and alleging breach of the European Convention on Human Rights (ECHR or Convention) have dealt with due process and property rights. Notwithstanding, a significant number of ECtHR judgments has originated in applications filed by individuals attesting belonging to the country’s historical ethnic and religious minorities. Over the past 10 years, individuals from new immigrant communities and the Roma have also increasingly taken recourse to the Court, asserting breach of their rights. There are 56 ECtHR judgments, discussed on the merits and issued before 1 June, 2008, which arguably reflect the Greek authorities’ disinclination in recognising, affirming and promoting pluralist standards in domestic society. Thirty cases have engaged the theme of minority protection whilst 26 have stemmed from applications by immigrants and foreigners. In many of these cases the Court ruled on the basis of Article 9 (freedom of thought, conscience and religion) and Article 11 (freedom of assembly and association) ECHR. There has only been one judgment declaring violation of Article 8 (right to respect for private and family life) ECHR. Four judgments found infringement of Article 14 (prohibition of discrimination) ECHR, read together with other Convention provisions, such as Article 6 (right to a fair trial), Article 9 and Article 13 (right to an effective remedy) ECHR. The Court has further

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pronounced violations of Article 2 (right to life) and Article 3 (prohibition of torture) ECHR in cases filed by foreigners and the Roma, as well as infringement of Article 5 (right to liberty and security) ECHR in cases brought by aliens and individuals forming part of religious minority creeds. In the latter, the Court has also ascertained breach of Article 13 ECHR. Notably, in all categories of ECtHR rulings under study, breaches of Article 6 ECHR were also detected. The variety of ECHR articles found violated reflects the multifaceted nature of claims that members of vulnerable groups are unsuccessful in vindicating before Greek courts. Bearing in mind that exhaustion of domestic remedies determines the admissibility of bringing a case to Strasbourg,1 it can reasonably be surmised that the Greek judiciary is reluctant (or even denies) to defend and secure particular types of demands by vulnerable groups. Plainly, many of the cases under examination pertain to systemic deficiencies of the Greek legal and judicial order (i.e. excessive length of proceedings, lack of an effective remedy, etc.), which concern vulnerable and non-vulnerable groups alike. Nonetheless, an easily identifiable string of cases exposes national judges’ resistance to adequately scrutinise domestic laws and administrative practices as far as the rights of particular disempowered communities are concerned. With the aim of investigating whether ECtHR jurisprudence enhances rights protection in Greece, in particular, the rights and liberties of individuals from minorities and other vulnerable groups, this chapter is structured as follows. Part 2 offers a brief account of the domestic judicial mechanisms of human rights review and examines the status the Convention has assumed in the national legal order and the interest it has generated in the academic and legal community. The objective is to properly place the Convention in the national legal context and provide an overview of the peculiarities of the Greek legal system. Coupled with established domestic perceptions about human rights protection, these exert a strong influence on litigation processes by vulnerable groups before the ECtHR. Focus then shifts in Part 3 to litigation patterns in Strasbourg with due attention ascribed to the rights claims raised by applicants from marginalised groups. This section also examines whether litigation before the ECtHR forms part of wider strategies in the pursuit of specific public policy reform goals. Next, emphasis is directed to the jurisprudence of the ECtHR in order to verify whether litigants actually succeed in gaining the Court’s support. The final section offers concluding remarks which explore whether ECtHR case law strongly affects the domestic judicial stance. 1

See in this respect Article 35 of the Convention.

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2. The Study of the ECHR: State of the Art in Greece A member of the Council of Europe (CoE) since August 1949, Greece signed the ECHR on 28 November 1950 and accommodated it in the domestic legal order by means of act 2329/1953.2 Similarly to the human rights provisions of the 1952 Constitution, the Convention received short shrift. Domestic authorities extended the validity of legislative acts, enacted during the civil war of the 1940s, despite their incompatibility with both the Constitution and the ECHR.3 The military coup of 21 April 1967 overthrew constitutional order overall, suspending most rights enshrined in the Constitution. A few years later, and in the wake of the inter-state applications of Denmark, Norway, Sweden and the Netherlands,4 the regime denounced the Convention in order to pre-empt the country’s expulsion from the CoE.5 Following the re-establishment of democratic stability in 1974, the Convention was approved once again with legislative decree 53/1974.6 The hierarchical position of the ECHR in the domestic legal order is defined by Article 28 of the present 1975 Constitution. Pursuant to paragraph 1 of Article 28, ‘[t]he generally recognised rules of international law, as well as international conventions as of the time they are ratified by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law.’ On this basis, the Convention enjoys supra-legislative status.7 This does not equal ECHR supremacy over the Constitution.8 According to Article 28(1),

2 3

4

5

6 7

8

Act 2329/1953, FEK A 68, 18/21 March 1953. See İ.Ö. Kaboğlu and S.-I. G. Koutnatzis, ‘The reception process in Greece and Turkey’, in Keller and Stone Sweet (eds.), A Europe of rights: The impact of the ECHR on national legal systems (Oxford: Oxford University Press, 2008), pp. 451–529, at 451. See Denmark v. Greece (application no. 3321/67); Norway v. Greece (application no. 3322/67); Sweden v. Greece (application no. 3323/67); and The Netherlands v. Greece (application no. 3344/67). See K. Ioannou, ‘Greece’, in Blackburn and Polakiewicz (eds.), Fundamental rights in Europe (Oxford: Oxford University Press, 2001), pp. 355–381, at 355. Legislative Degree no. 53/1974, FEK A 256, 20 September 1974. See amongst others F. Vegleris, Η Σύμβαση των Δικαιωμάτων του Ανθρώπου και το Σύνταγμα [The Convention on Human Rights and the Constitution] (Athens: Ant. N. Sakkoulas, 1977), pp 86–87, and E. Roukounas, Διεθνές Δίκαιο [International Law], vol. I, (Athens: Ant. N. Sakkoulas, 1982), pp. 30–34. See in this respect A.G. Raikos, Συνταγματικό Δίκαιο [Constitutional Law] (AthensKomotini: Ant. N. Sakkoulas, 1989), vol. 1, p. 148. Note nevertheless that some scholars construe Article 28(1) of the Constitution as placing international law on an equal footing with constitutional norms. See in particular G. Vlachos, Το Σύνταγμα της Ελλάδος [The Constitution of Greece] (Athens: Sakkoulas, 1979), p. 99.

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international treaties lack constitutional or supra-constitutional ranking. As a result, in the case of conflict, the Constitution must take precedence. Admittedly, prospects for conflict between the two instruments are bleak since the constitutional listing of human rights corresponds to a great extent to that of the ECtHR.9 In fact, it has been argued that the level of protection afforded by the Greek Constitution exceeds the Convention’s provisions.10 Taking into account, however, that instances where differences in terms of protective density can be discerned,11 legal scholars have taken the view that judicial authorities should strive to interpret constitutional provisions in a way that matches the Convention’s requirements.12 As a party to the ECHR, the Greek state needs to observe and give effect to the human rights safeguards laid down in the Convention. In case of failure to comply with the engagements undertaken, the ECtHR is empowered to rule on individual petitions alleging breach of the Convention provided that all local remedies have been put to the test. In order to reach a clear understanding of litigation strategies in Strasbourg and explain why litigants from vulnerable groups so frequently espouse the purpose of bringing a case to the ECtHR, it is essential to examine the availability of options for seeking redress of human rights violations at the national level. When and by what means can national judges pronounce on alleged violations of human rights? The domestic system of rights review follows a two-pronged approach. Respect for human rights is ensured via judicial control of constitutionality,13 9

10

11

12

13

K. Chryssogonos, Η ενσωμάτωση της Ευρωπαϊκής Σύμβασης των Δικαιωμάτων του Ανθρώπου στην Ελληνική έννομη τάξη [The incorporation of the European Convention on Human Rights in the Greek legal order] (Athens-Komotini: Ant. N. Sakkoulas, 2001), pp. 180–184, and L. Goldstein and C. Ban, ‘The Rule of Law and the European Human Rights Regime’, JSP/Center for the Study of Law and Society Jurisprudence and Social Policy Program (University of California, Berkeley), available at: http://repositories.cdlib.org/csls/ fwp/13, at p. 16. K. Chryssogonos, ‘Η (μη) εφαρμογή της ΕΣΔΑ από τα Ελληνικά δικαστήρια’ [The (non-) application of the ECHR by the Greek Courts], To Syntagma 5 (2002), available at: http:// tosyntagma.ant-sakkoulas.gr/afieromata/item.php?id=726. Note for example that Articles 11 and 12 of the Constitution recognise freedom of assembly and freedom of association only with respect to Greek citizens, whereas relevant ECHR provisions safeguard these freedoms for everyone. See K. Chryssogonos, ‘Η Ευρωπαϊκή Σύμβαση των Δικαιωμάτων του Ανθρώπου μισό αιώνα μετά’ [The European Convention on Human Rights half century after], To Syntagma 5 (2001), available at: http://tosyntagma.ant-sakkoulas.gr/theoria/item.php?id=404, and G. Papadimitriou, ‘Ο Έλληνας δικαστής και η ΕΣΔΑ’ [The Greek judge and the ECHR], To Syntagma 5 (2002), available at: http://tosyntagma.ant-sakkoulas.gr/afieromata/item. php?id=724. See generally P.D. Dagtoglou, Συνταγματικό Δίκαιο: Ατομικά Δικαιώματα [Constitutional Law: Human Rights] (Athens-Komotini: Ant. N. Sakkoulas, 1991), vol. 2, pp. 1226–1253.

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on the one hand, and judicial control of national statutes’ compliance with international law, on the other.14 As regards constitutionality, it must be stressed from the outset that Greece lacks a specific Constitutional Court. Under Article 93(4) of the Constitution, all Greek courts are bound to refrain from applying legislation whose content is contrary to the Constitution, and thus to the human rights provisions contained therein.15 The entire Greek judiciary is obliged ex officio to assure that domestic laws conform to the Constitution. This shared and diffused control of constitutionality is of an indirect and incidental nature.16 Greek judges have competence to examine the compatibility of national legislation with constitutional human rights norms in the context of precise legal disputes that form the object of judicial proceedings. There is no special procedure for control of constitutionality alone. The Special Highest Court of Greece (Anotato Eidiko Dikastirio) has jurisdiction to settle any controversy on whether the content of a statute enacted by the parliament is contrary to the Constitution but may only do so when conflicting judgments have been issued by the Council of State (Symboulio tis Epikrateias), the Court of Cassation (Areios Pagos) and the Court of Audit (Elegktiko Synedrio).17 Although there is no explicit constitutional provision mandating conformity of national statutes with international law, Article 28(1), by prescribing that customary and treaty law prevails over any contrary legal provision, enables the Greek judiciary to verify whether national legislation is consistent with international enactments. It follows that judges may rule on the basis of the ECHR and refuse to apply laws that contravene the Convention.

14

15

16

17

See A.S. Giokaris, Η πρακτική των δικαιοδοτικών οργάνων στην εφαρμογή του διεθνούς συμβατικού δικαίου [The practice of the judiciary as regards the application of international conventional law] (Athens-Komotini: Ant. N. Sakkoulas, 1986), pp. 338–341. Article 93(4) of the Greek Constitution states: ‘[t]he Courts shall be bound not to apply a statute whose content is contrary to the Constitution’. See also Article 87(2), according to which ‘[i]n the discharge of their duties, judges shall be subject only to the Constitution and the laws; in no case whatsoever shall they be obliged to comply with provisions enacted in violation of the Constitution’. See in detail A. Manitakis, ‘Fondement et légitimité du contrôle juridictionnel des lois en Grèce’, Revue Internationale de Droit Comparé 1 (1988), 39, and J. Iliopoulos-Strangas and G. Leventis, ‘La protection des droits sociaux fondamentaux dans l’ordre juridique de la Grèce’, in Iliopoulos-Strangas (ed.), La protection des droits sociaux fondamentaux dans les Etats membres de l’Union Européenne (Athens: Ant. N. Sakkoulas, 2000), p. 397. See also W. Skouris, ‘Constitutional disputes and judicial review in Greece’, in Landfried (ed.), Constitutional review and legislation (Baden-Baden, 1988), p. 177. See Article 100(1)(e) of the Greek Constitution. When declared unconstitutional, the relevant statute will be invalid as of the date of the publication of the Special Highest Court’s judgment or as of the date specified in the ruling.

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Legal scholars disagree on whether domestic courts can examine conformity either ex officio or on account of specific arguments put forward by the parties.18 In practice, Greek judges do not tend to consider compatibility with the Convention on their own motion but only when litigants make an explicit reference to it. Mention of the provisions of the Convention is usually made in conjunction with the human rights provisions of the Constitution. The proliferation over the last years of ECtHR jurisprudence concerning the rights of individuals from various politically or socially disempowered communities elucidates the difficulties litigants from such groupings encounter when seeking redress through use of the domestic system of rights observance. The issue has received significant domestic attention, with much said and written about the human rights performance of Greece. Indeed, in addition to ample academic literature regarding the workings of the ECHR system and the principal characteristics of the ECtHR supervision machinery,19 scholars have examined domestic judicial attitudes towards the Convention and the ECtHR rulings dealing with the rights of individuals from religious and ethnic minority communities, as well those of foreigners.20 Legal studies and political science research into European human rights norms have generally shown that the Convention and the Court’s jurisprudence 18

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See in this regard K. Chryssogonos, The incorporation of the European Convention on Human Rights in the Greek legal order, pp. 225–228 and pp. 122–132, S. Giokaris, The practice of the judiciary, pp. 338–339, and D. Briolas, ‘L’application de la Convention Européenne des Droits de l’Homme dans l’ordre juridique des Etats contractants: Théorie et pratique helléniques’, in Iliopoulos-Strangas (ed.), Grundrechtsschutz im europäischen Raum/La protection des droits de l’homme dans le cadre européen (Baden-Baden, 1993), p. 82, at 94. See amongst others E. Roukounas, Διεθνής προστασία των ανθρωπίνων δικαιωμάτων [International protection of human rights] (Athens: Estia, 1995), S. Perrakis, Διαστάσεις της διεθνούς προστασίας των δικαιωμάτων του ανθρώπου [Aspects of the international protection of human rights] (Athens: Ant. N. Sakkoulas, 1991), and S. Matthias et al., Η προστασία των δικαιωμάτων του ανθρώπου στην Ευρώπη [The protection of human rights in Europe] (Athens: Athens Lawyers’ Bar, 2006). See, for example, C. Giakoumopoulos, ‘Το μειονοτικó φαινóμενο στην Ελλάδα και η Ευρωπαϊκή Σύμβαση του Ανθρώπου [The minority phenomenon in Greece and the European Convention on Human Rights], in Tsitselikis and Christopoulos (eds.), To μειονοτικό φαινόμενο στην Ελλάδα [The minority phenomenon in Greece] (Athens: KEMO, 1997), p. 21, S. Stavros, ‘Human rights in Greece: twelve years of supervision from Strasbourg’, Journal of Modern Greek Studies 17 (1999), 3, G. Ktistakis, ‘Η Ευρωπαϊκή προστασία της θρησκευτικής ετερότητας’ [The European protection of religious otherness], in Christopoulos (ed.), Νομικά ζητήματα θρησκευτικής ετερότητας στην Ελλάδα [Legal aspects of religious otherness in Greece] (Athens: Kritiki, 1999), p. 223, S. Stavros, ‘H θρησκευτική ελευθερία

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have not bore heavily on domestic judicial assessment. Following an initial period of disregard of the Convention, with Greek judges demonstrating similar restraint towards reviewing the constitutionality of domestic provisions, the judiciary started to become more acquainted with the ECHR.21 A significant factor accounting for this has been the acceptance in the mid-1980s of the right to individual petition. However, legal culture and a conservative ethos strongly based on the pre-eminence of constitutional doctrine precluded the Convention from receiving considerable attention.22 The fact that each judge could engage in control of constitutionality resulted in rare use of its provisions. Such trends broadly persist even nowadays. Despite the efforts deployed by national authorities to disseminate information over Strasbourg Court rulings, Greek judges appear to remain largely unaware of ECtHR jurisprudence. Although references to the Convention are now common in domestic judicial decisions, significant disparities exist between Greek judicial evaluation and the reasoning endorsed in the Court’s judgments.23 The lip service paid to the Convention discloses a vague understanding of its requirements and evidently plays a central role towards litigation in Strasbourg, including by members of vulnerable groups. A privileged domain of legal and social scientists, the ensuing Strasbourg jurisprudence has formed the object of considerable analysis. With regard to religious rights case law, in particular, the main argument advanced in the literature is that domestic regulation of the practice of religion works to the detriment of religious communities other than the Orthodox Church. Impediments to the exercise of religious freedom are largely attributed to the awkward complexity of relations between the Greek state and the Orthodox

21

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και η ελευθερία της έκφρασης’ [Religious freedom and freedom of expression], To Syntagma 6 (2002), available at: http://tosyntagma.ant-sakkoulas.gr/afieromata/item.php?id=777, and N. Sitaropoulos, ‘Η προστασία από την Ελλάδα θεμελιωδών δικαιωμάτων των αλλοδαπών μέσα από το πρίσμα της νομολογίας του Ευρωπαϊκού Δικαστηρίου των Δικαιωμάτων του Ανθρώπου [The protection of the fundamental rights of aliens by the Greek state through the prism of the jurisprudence of the European Court of Human Rights], To Syntagma 2 (2003), available at: http://tosyntagma.ant-sakkoulas.gr/afieromata/item.php?id=844. See Kaboğlu and Koutnatzis, ‘The reception process in Greece and Turkey’, pp. 474 and 500–501. See Chryssogonos, The incorporation of the European Convention on Human Rights in the Greek legal order, pp. 24–25, 284 and 412, Ioannou, ‘Greece’, p. 365, and G. Mavrodi, ‘The impact of the ECHR and the European Court of Human Rights on the rights of third country nationals in Greece’, Journal of Migration, Asylum and Nationality Law 22 (2008), 45, at pp. 55 and 59. Interview with former president of the Greek Court of Cassation, Athens, 19 March 2008.

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Church.24 Their close interconnection, characterised as sui generis given the absence of complete separation25 is deemed to have allowed the Orthodox Church, predominant and constitutionally protected,26 to exert a strong influence on the design and implementation of state policies, especially when these are likely to affect its privileged position in Greek society. In this context, academics have harshly criticised domestic constitutional and legislative provisions founded on, and perpetuating a low degree of religious tolerance. This has definitely been the case for the general prohibition of proselytism, mandated by Article 13(2) of the Constitution, and Law 1363/1938 governing, among other things, the establishment of non-Orthodox places of worship.27 Literature and research on the country’s historic populations of non-Greek ethnic origin has tended to document denial of ethnic ‘otherness’ manifested through severe restrictions imposed on the enjoyment of civil and political rights, lately uncovered by the Strasbourg Court on a recurrent basis.28 The exercise of the right to association has gained particular resonance in academic discourse, with scholars condemning domestic judicial practice regarding the establishment and operation of associations with members which differentiate themselves from leading, traditional perceptions about Greek identity in terms 24

25

26

27

28

See I. Konidaris, ‘Οι σχέσεις εκκλησίας-κράτους στην Ελλάδα από το 1974 έως σήμερα’ [The relationship between the Church and the State in Greece from 1974 until today], in Mpeis (ed.), Η θρησκευτική ελευθερία [Religious freedom] (Athens: Eunomia, 1997), p. 115, at 117, and G. Swtirelis, ‘Ο χωρισμός κράτους-εκκλησίας: Η αναθεώρηση που δεν έγινε’ [The separation of the State from the Church: the reform which did not take place], in Christopoulos (ed.), Legal aspects of religious otherness in Greece, p. 19. Commission on Security and Cooperation in Europe, Religious Liberty: The Legal Framework in Selected OSCE Countries, May 2000, p. 56. According to Article 3(1) of the Greek Constitution, ‘[t]he prevailing religion in Greece is that of the Eastern Orthodox Church of Christ’. See A. Pollis, ‘The state, the law, and human rights in modern Greece’, Human Rights Quarterly 9 (1987), 587, at 609–611, and ‘Greek national identity: religious minorities, rights and European norms’, Journal of Modern Greek Studies 10 (1992), 171, at 181–183, Nikos Alivizatos, ‘Issues of religious freedom in Greece’, in Vassiliou and Psomiades (eds.), Human rights in the 21th century (Athens: Ant. N. Sakkoulas 2001), p. 226, at pp. 231–234, A. Loverdos, ‘Περί προσηλυτισμού’ [Regarding proselytism], in Mpeis, Religious freedom, p. 127, at p. 129, and M. Stathopoulos, ‘Η συνταγματική κατοχύρωση της θρησκευτικής ελευθερίας και οι σχέσεις πολιτείας-εκκλησίας’ [The constitutional protection of religious freedom and the relationship between the State and the Church], in Christopoulos, Legal aspects of religious otherness, p. 201, at p. 216. See in particular ECtHR, Sidiropoulos and Others v. Greece (no. 26695/95), 10 July 1998; Ouranio Toxo and Others v. Greece (no. 74989/01), 20 October 2005; Bekir-Ousta and Others v. Greece (no. 35151/05), 11 October 2007; Emin and Others v. Greece (no. 34144/05), 27 March 2008; and Tourkiki Enosi Xanthis and Others v. Greece (no. 26698/05), 27 March 2008.

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of ethnic affiliation.29 Of course, the background reality is that ethnic minority claims encapsulating human rights concerns are often correlated or identified with competing political claims coming from neighbouring countries with which the Greek state maintains tense relations.30 Persistent state ideology about the need to preserve ethnic homogeneity and territorial integrity pervades domestic law-making, leading to controversial from a human rights standpoint policy choices and prompting judicial responses that eventually feed into litigation in Strasbourg. Recent but growing ECtHR jurisprudence on foreigners’ and immigrants’ rights has also received substantial academic attention. Seminal Court judgments like Dougoz and Peers have been widely commented, with criticism levelled against aliens’ unlawful detention and degrading detention conditions in police premises and prisons.31 In reviewing relevant rulings, and taking note of the fact that since the early 1990s Greece has experienced an intensive flow of immigrants, it has been underlined that contrary to other western European countries, the human rights violations exposed in Strasbourg pertain to socalled ‘first generation human rights’.32 They raise fundamental issues about the compliance record of Greece and call for urgent remedial action. Regarding inhuman and degrading treatment in particular, scholars have observed that Greek case law differs from that of other countries. Whereas applicants usually invoke Article 3 ECHR in their effort to avoid expulsion, alleging mistreatment in the country of origin or prior residence, ECtHR judgments against the Greek state build on claims about aliens having suffered degrading treatment while kept in detention and awaiting their expulsion.33 29

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32

33

See G. Kourtovik, ‘Δικαιοσύνη και μειονότητες’ [Justice and minorities], in Tsitselikis and Christopoulos (eds.), The minority phenomenon in Greece, p. 245, Stavros, ‘The legal status of minorities in Greece today: The adequacy of their protection in the light of current human rights perceptions’, Journal of Modern Greek Studies 13 (1995), 1, at 13–14, and K. Tsitselikis, ‘Minority mobilisation in Greece and litigation in Strasbourg’, International Journal on Minorities and Group Rights 15(2008), 27, at 44–46. C. Rozakis, ‘The international protection of minorities in Greece’, in Featherstone and Ifantis (eds.), Greece in a changing Europe (Manchester and New York: Manchester University Press, 1996), p. 98. See N. Sitaropoulos, ‘The protection of the fundamental rights of aliens’, available at http:// tosyntagma.ant-sakkoulas.gr/afieromata/item.php?id=844, G. Mavrodi, ‘The impact of the ECHR and the European Court of Human Rights’, 51–55, Kaboğlu and Koutnatzis, ‘The reception process in Greece and Turkey’, pp. 474 and 477, and A. Skordas, ‘The new immigration law in Greece: modernisation on the wrong track, European Journal of Migration and Law 4 (2002), 23, at 40–41. N. Sitaropoulos, The protection of the fundamental rights of aliens, available at http:// tosyntagma.ant-sakkoulas.gr/afieromata/item.php?id=844. G. Mavrodi, ‘The impact of the ECHR and the European Court of Human Rights’, at 53.

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3. Litigation in the ECtHR on Behalf of Marginalised Individuals and Minorities According to ECtHR statistics, the annual inflow of complaints against Greece has varied between 480 in 2003, 405 in 2004, 425 in 2005 and 430 in 2006.34 In 2007, 58 applications were declared admissible and 298 were found inadmissible or struck off the list, leading to 559 pending cases against the Greek state on 31 December 2007.35 Out of 1503 judgments handed down in the same year, 65 concerned the Greek state.36 In 61 of those at least one violation was declared. The majority of cases regarded Article 6 ECHR, with 14 cases pertaining to the right to a fair trial and 38 cases concerning excessive length of domestic proceedings. Whilst there has been no case finding a violation of Articles 8 and 9 ECHR, the Court declared breach of Article 10 in three cases and breach of Articles 11 and 14 ECHR in one case. Other judgments brought to the surface violations of Articles 2, 3, 5, 13 ECHR and Article 1 of Protocol no. 1 to the Convention (protection of property). Whereas the cases issued on the basis of Articles 2, 3, 5 and 14 ECHR derived from rights claims by aliens and individuals of non-Greek ethnic origin (i.e. Roma), the single Article 11 ECHR case was filed by individuals from the Turkish Muslim community in northern Greece. As to the numerically predominant Article 6 cases, jurisprudence has inter alia built on rights claims raised by aliens. This summary offers simply a sample of ECtHR jurisprudence raising vital but unsettled questions about the level of human rights protection granted to vulnerable groups by the Greek authorities. Irrespective of the Convention article used to substantiate a human rights violation, litigants from many socially and politically disempowered groups resort to the Court in an attempt to counteract state resistance in satisfying their demands. The first individual applications to be filed with the Court by such marginalised communities originated from Jehovah’s Witnesses (JWs). Proving successful, they inaugurated use of the Strasbourg system as an alternative arena in the pursuit of minority religionrelated claims, including by Old Calendarists, Protestants and the Catholic Church. Whereas some of the cases ruled by the Court brought deficiencies of the Greek legal system to centre stage (i.e. lack of an effective remedy),37 others

34

35 36

37

ECtHR, Survey of activities 2006, and Survey of activities 2005, available at: http://www.echr .coe.int, pp. 39 and 52, and 34 respectively. ECtHR, Survey of activities 2007, available at: http://www.echr.coe.int, pp. 53 and 58. The highest number of judgments concerned Turkey, Russia, Poland and Ukraine and accounted for almost half of all judgments. ECtHR, Valsamis v. Greece (no. 21787/93), 18 December 1996; and Efstratiou v. Greece (no. 24095/94), 18 December 1996.

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concerned erroneous judicial interpretation of national legislation making proselytism a criminal offence and administrative obstacles to the creation of non-Orthodox places of worship.38 On other occasions, allegations about discrimination on account of religious beliefs, unlawful detention for refusing to bear arms, unfair compensation proceedings in this respect, and breach of the right not to manifest one’s religious beliefs were brought to the attention of the Court.39 Violations were found in relation to Articles 5, 6, 9, 13 and 14 ECHR. From the early 1990s, a second category of petitions has been lodged with the ECtHR by individuals from the Turkish Muslim and Slav-speaking communities living in the country. Although many of these cases were declared inadmissible,40 the number of judgments finding a violation of the Convention has considerably increased over the past 10 years.41 Grievances have varied. Some cases are built on Article 6 ECHR, pointing to the structural problems of the Greek legal and judicial order. Others deal with the Greek judiciary’s refusal to register minority associations on national security grounds, the court-ordered dissolution of such associations, the breach of the freedom of association of a lawfully constituted political party defending minority rights, and state interference with Muslims’ religious representation. Hindrances of 38

39

40

41

ECtHR, Kokkinakis v. Greece, (no. 14307/88), 25 May 1993; Larissis and Others v. Greece (nos. 23372/94; 26377/94; 26378/94), 24 February 1998; Manoussakis and Others v. Greece (no. 18748/91), 26 September 1996; Pentidis and Others v. Greece (no. 23238/94), 9 June 1997; Tsavachidis v. Greece (no. 28802/95), 21 January 1999; and Vergos v. Greece (no. 65501/01), 24 June 2004. ECtHR, Canea Catholic Church v. Greece (no. 25528/94), 16 December 1997; Georgiadis v. Greece (no. 21522/93), 29 May 1997; Tsirlis and Kouloumpas v. Greece (nos. 19233/91; 19234/91), 29 May 1997; Thlimmenos v. Greece (no. 34369/97), 6 April 2000; and Alexandridis v. Greece (no. 19516/06), 21 February 2008. See for instance European Commission of Human Rights, Zeibek v. Greece (no. 34372/97), 21 May 1997; Agko v. Greece (no. 31117/96), 20 October 1997; Imam and Others v. Greece (no. 29764/96), 20 October 1997, and ECtHR, Ahmet Sadik v. Greece (no. 18877/91), 15 November 1996; Tsarknias v. Greece (no. 45629/99), 30 March 1999; Molla Houseïn v. Greece (no. 63821/00), 12 December 2002; Imam v. Greece (no. 63719/00), 6 February 2003; Karabouyiouclou v. Greece (no. 63824/00), 6 February 2003; Ouzoun v. Greece (no. 63796/00), 6 February 2003; Toutziar v. Greece (no. 63949/00), 6 February 2003; Deli Hatzoglou v. Greece (no. 67754/01), 3 April 2003; and Kehagia v. Greece (no. 67115/01), 3 April 2003. ECtHR, Sidiropoulos and Others v. Greece (no. 26695/95), 10 July 1998; Serif v. Greece (no. 38178/97), 14 December 1999; Agga v. Greece (no. 37439/97), 25 January 2000; Tsingour v. Greece (no. 40437/98), 6 July 2000; Sadik Ahmet and Others v. Greece (no. 64756/01), 3 February 2002; Agga v. Greece (no. 2) (nos. 50776/99; 52912/99), 17 October 2002; Ouranio Toxo and Others v. Greece (no. 74989/01), 20 October 2005; Agga v. Greece (no. 3) (no. 32186/02), 13 July 2006; Agga v. Greece (no. 4) (no. 33331/02), 13 July 2006; Bekir-Ousta and Others v. Greece (no. 35151/05), 11 October 2007; Emin and Others v. Greece (no. 34144/05), 27 March 2008; and Tourkiki Enosi Xanthis and Others v. Greece (no. 26698/05), 27 March 2008.

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enrolment to professional associations, deprivation of citizenship and employment dismissals for assertions of ethnic differentiation were also some of the themes communicated to the Court. Since the late 1990s, a significant number of petitions have been filed by aliens and ethnic minority communities other than Turkish Muslims and Slav-speaking groupings, mainly Roma.42 In addition to allegations about impairment to the right to a fair trial, applicants have complained about acts of police brutality, force abuse and/or glaring omissions in the investigation of the incidents under dispute, particularly the absence of any consideration afforded to possible racial motives behind the impugned treatment. In other instances, they have criticised state authorities for unlawful detention and degrading detention conditions on police premises and in prisons. In many of the kinds of rights claims discussed above, legal action before the Strasbourg Court has followed strategic litigation patterns with structured efforts deployed to exert pressure on national authorities to take corrective action. The JW cases taken to the ECtHR tell a fascinating story of the community’s determination to have particular claims recognised by the Greek state.43 Petitions to Strasbourg did not reflect the initiative of sole individuals. Quite the contrary, they were filed following specific case testing. Lawyers from the Association of JWs performed a thorough selection of cases, indicative of the legal and administrative barriers regularly confronted by JWs. The preparation of relevant petitions was then entrusted to some of the most well-known professionals of the Greek academic elite and was combined with the launch of a broader campaign abroad, so as to raise awareness of the legal battle conducted. 42

43

ECtHR, Hornsby v. Greece (no. 18357/91), 19 March 1997; Twalib v. Greece (no. 24294/94), 9 June 1998; Portington v. Greece (no. 28523/95), 23 September 1998; Biba v. Greece (no. 33170/96), 26 September 2000; Dougoz v. Greece (no. 40907/98), 6 March 2001; Peers v. Greece (no. 28524/95), 19 April 2001; Yagtzilar and Others v. Greece (no. 41727/98), 6 December 2001; Sajtos v. Greece (no. 53478/99), 21 March 2002; Alija v. Greece (no. 73717/01), 7 April 2005; Jarnevic & Profit v. Greece (no. 28338/02), 7 April 2005; Kurti v. Greece (no. 2507/02), 29 November 2005; Bekos and Koutropoulos v. Greece (no. 15250/02), 13 December 2005; Mohd v. Greece (no. 11919/03), 27 April 2006; Papa v. Greece (no. 21091/04), 6 July 2006; Kaja v. Greece (no. 32927/03), 27 July 2006; Alsayed Allaham v. Greece (no. 25771/03), 18 January 2007; Vasilev v. Greece (no. 2736/05), 18 April 2007; John v. Greece (no. 199/05), 10 May 2007; Perlala v. Greece (no. 17721/04), 22 May 2007; Zelilof v. Greece (no. 17060/03), 24 May 2007; Peca v. Greece (no. 14846/05), 21 June 2007; Noel Baker v. Greece (no. 32155/04), 21 June 2007; Karagiannopoulos v. Greece (no. 27850/03), 21 June 2007; Celniku v. Greece (no. 21449/04), 5 July 2007; Behar Metushi v. Greece (no. 34148/05), 25 October 2007; Luan Metushi v. Greece (no. 34643/05), 25 October 2007; Gjashta v. Greece (no. 4983/04), 18 October 2007; Petropoulou-Tsakiris v. Greece (no. 44803/2004), 6 December 2007; and Sekseni v. Greece (no. 41515/05), 6 March 2008. Interview with an activist of the Association of JWs in Greece, Athens, 3 March 2008.

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Litigation by Turkish Muslims in the first half of the 1990s did not follow similar patterns.44 Minority organisations from Western Thrace refrained from using legal tactics in a concerted and well-prepared manner. The first set of petitions reaching the ECtHR were found inadmissible either for nonexhaustion of remedies or as manifestly ill-founded.45 Their negative outcome undermined the community’s interest in a European-oriented human rights discourse, the ECtHR being perceived as an unattractive forum for the pursuit of minority demands for collective self-determination. Interestingly, in recent years, petitions have gradually increased in number, providing evidence for a re-appraisal of the community’s political and legal strategy. Legal support by minority lawyers and associations for the handling of cases has improved and claims have been formulated in a way that is more in line with the Convention’s provisions and the reasoning embodied in the Court’s judgments.46 Making a convincing appeal in Strasbourg now rests on careful case selection and meticulous preparation, attesting to the minority’s resolve to place specific claims under the Court’s scrutiny in earnest. Conversely, litigation by immigrants, foreigners and Roma does not appear to be driven by strategic motivation. Applicants are not systematically supported by human rights NGOs or their representative associations, and there is no selection of specific cases to be filed with the Court.47 In most instances, the legal professionals defending the litigants are lawyers which have acquired experience in Strasbourg litigation and therefore are chosen on the basis of their skills. Interestingly, over the past few years, the Greek Helsinki Monitor (GHM), a member of the International Helsinki Federation, has increasingly dealt with cases on behalf of foreigners and Roma, engaging in legal action as a means to pursue broader public policy reforms.48 For that purpose, it has cooperated on several occasions with the European Roma Rights Centre, an international NGO, which monitors the human rights situation of Roma across Europe.49

44

45

46 47 48

49

See in detail, D. Anagnostou and E. Psychogiopoulou, ‘Supranational rights litigation, implementation and the domestic impact of Strasbourg Court jurisprudence in Greece’, Case-study report prepared in the framework of the Juristras project, available at: http://www.juristras. eliamep.gr/wp-content/uploads/2008/09/casestudygreece.pdf, at p. 31. For a detailed presentation, see K. Tsitselikis, ‘Minority mobilisation in Greece and litigation in Strasbourg’, 35–37. Interview with former minority member of the Greek Parliament, Athens, 23 May 2008. Interview with Greek lawyer specialising in ECtHR litigation, Athens, 7 February 2008. The Greek Helsinki Monitor represented the applicants before the ECtHR in Bekos and Koutropoulos (no. 15250/02), Zelilof (no. 17060/03), Karagiannopoulos (no. 27850/03), Celniku (no. 21449/04), Petropoulou-Tsakiris (no. 44803/2004) and Gjashta (no. 4983/04). See Bekos and Koutropoulos (no. 15250/02) and Petropoulou-Tsakiris (no. 44803/2004).

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A more general appeal to advance human rights protection in the country comes from organisations such as the Marangopoulos Foundation for Human Rights, the Research Centre for Minority Groups, the Greek National Centre for Social Research, the Hellenic League for Human Rights, the EUMC National Focal Point – Antigone, the Greek Minority Rights Group and the Greek Council for Refugees, though relevant institutions have not been involved in specific ECtHR cases so far. Contrariwise, several European organisations have served as a reliable source of information for the Court’s judgments. To illustrate, in Bekos and Koutropoulos, the Court took note of the reports prepared by the European Commission against Racism and Intolerance of the Council of Europe and the EU Network of Independent Experts on Fundamental Rights, both expressing concern about racially motivated police violence, in particular, against Roma populations.50 Along the same lines, in Peers, regarding a British heroin addict detained under degrading conditions, the Court took into account the report of the European Committee for the Prevention of Torture and Inhuman Treatment or Punishment, produced following an inspection of the Koridallos prison in Athens.51 The ECtHR has also drawn from the Greek Ombudsman’s work. In Zelilof, passages from a 2004 report, entitled ‘Disciplinary-administrative investigations into complaints against police officers’, were replicated verbatim.52

4. ECtHR Jurisprudence in the Cases Under Review Examining more closely the cases originating in applications from individuals belonging to minorities or other socially and politically marginalised groups, the first instances of Greek litigation in Strasbourg clustered around the theme of religious differentiation. Whereas most cases led to the finding of a violation of Article 9 ECHR, violations of Articles 5, 6, 13 and 14 ECHR were also detected. Kokkinakis,53 the first dispute settled by the ECtHR in 1993, regarded the judicial interpretation of domestic legislation making proselytism a criminal offence.54 The Court held that religious freedom does not protect every act

50 51 52 53

54

See Bekos and Koutropoulos v. Greece (no. 15250/02), 13 December 2005. See Peers v. Greece (no. 28524/95), 19 April 2001. See Zelilof v. Greece (no. 17060/03), 24 May 2007. ECtHR, Kokkinakis v. Greece (no. 14307/88), 25 May 1993. Similar issues were contemplated by the Court later in Larissis and Others v. Greece (nos. 23372/94; 26377/94; 26378/94), 24 February 1998. Law 1363/1938, as amended by Law 1672/1939, criminalised proselytism and subjected its practice to severe penalties, including police surveillance, fines and imprisonment.

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motivated or inspired by religion or belief. In fact, it clarified that ‘improper’ proselytism, namely proselytism exercised through the offering of material and social advantages, the application of pressure on people in distress, or the use of violence and brainwashing, does not fall within the protective scope of Article 9 ECHR. Noting, however, that the Greek judiciary, in establishing the liability of the applicant (a JW) had not sought to specify the way in which ‘improper means’ had been employed, the Court ruled that conviction was neither justified, nor proportionate to a legitimate aim pursued. Manoussakis dealt with domestic administrative practice as regards the grant of permits for the establishment of non-Orthodox religious venues.55 The case related to the conviction of a JW for having operated a place of worship without obtaining the minister’s authorisation, as domestic legislation prescribed, albeit several requests to that purpose. The Court took the position that the state ‘had tended to use the possibilities afforded by [domestic legislation] to impose rigid, or indeed, prohibitive conditions on the practice of religious beliefs by certain non-Orthodox movements’, and found a violation of Article 9 ECHR.56 Aware of the precedent of Manoussakis, the Greek government pursued the conclusion of a friendly settlement in Pentidis and Others and Tsavachidis, which built on similar facts.57 Conversely, concerned with the refusal of the administration to amend land-use plans in order to allow a follower of Old Calendarists to construct a place of prayer for public use, Vergos was discussed on the merits.58 The Court acknowledged the authorities’ margin of appreciation in balancing town and country planning policy objectives with religious needs, yet established a violation of Article 6 ECHR. The length of domestic proceedings did not satisfy the ‘reasonable time’ requirement of Article 6 ECHR. Tsirlis and Kouloumpas, Georgiadis and Thlimmenos focused on the prejudiced attitudes faced by JWs when seeking exemption from military service.59 In Tsirlis and Kouloumpas, the Court pronounced breach of Article 5 ECHR on account of the applicants’ detention for not performing military service, despite the fact that national legislation made clear that all clergy of ‘known’ religious dogmas could be exempted from military obligations. In Thlimmenos, the Court declared infringement of Article 14 ECHR, read together with

55 56 57

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ECtHR, Manoussakis and Others v. Greece (no. 18748/91), 26 September 1996. Manoussakis and Others v. Greece, at paras. 45 and 48. ECtHR, Pentidis and Others v. Greece (no. 23238/94), 9 June 1997; and Tsavachidis v. Greece (no. 28802/95), 21 January 1999. ECtHR, Vergos v. Greece (no. 65501/01), 24 June 2004. ECtHR, Tsirlis and Kouloumpas v. Greece (no. 19233/91; 19234/91), 29 May 1997; Georgiadis v. Greece (no. 21522/93), 29 May 1997; and Thlimmenos v. Greece (no. 34369/97), 6 April 2000.

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Article 9 ECHR. The Greek state had enacted legislation which precluded access to the profession of chartered accountants for persons convicted of a serious crime without introducing appropriate exceptions for the individuals convicted for refusing to perform military service on religious or philosophical grounds. With regard to Georgiadis, the Court found breach of Article 6 ECHR because the applicant, a JW minister, had not received a fair hearing on the matter of compensation for unlawful detention pending his trial for insubordination. Canea Catholic Church also led to the finding of a violation of Article 6 ECHR.60 The case was founded on the inability of the Roman Catholic Church in Canea (Crete) to take legal proceedings in order to protect its property, given domestic courts’ failure to recognise its legal personality. In addition, the ECtHR held breach of Article 14 ECHR, read in conjunction with Article 6 ECHR. For the Court, the Catholic Church had been subjected to discriminatory treatment, as the Orthodox Church and Jewish communities could institute legal proceedings without specific formalities. In Valsamis and Efstratiou, two cases regarding the right to be exempted from school parades on grounds of religious beliefs, the Court found infringement of Article 13 ECHR for lack of an effective remedy to challenge a disciplinary penalty imposed on two JW pupils.61 A violation of Article 13 ECHR was also identified in Alexandridis.62 More importantly, however, in this case the Court received positively the applicant’s claim about breach of the negative dimension of religious freedom, namely the right not to manifest one’s religious beliefs. Taking note of the fact that the applicant had been obliged to declare before a national court that he was not an Orthodox Christian when taking an oath of office, the ECtHR established breach of Article 9 ECHR. Centrally concerned with issues of religious representation, Serif, Agga (nos. 2, 3 and 4) and Sadik Ahmet and Others stemmed from applications by individuals from the historical minority of Western Thrace.63 In Serif, the applicant had been elected mufti of Rodopi by sections of the Muslim minority and not by presidential decree as domestic law determined. The Court noted that the applicant had not attempted to exercise the judicial functions of 60 61

62 63

ECtHR, Canea Catholic Church v. Greece (no. 25528/94), 16 December 1997. ECtHR, Valsamis v. Greece (no. 21787/93), 18 December 1996; and Efstratiou v. Greece (no. 24095/94), 18 December 1996. ECtHR, Alexandridis v. Greece (no. 19516/06), 21 February 2008. ECtHR, Serif v. Greece (no. 38178/97), 14 December 1999; Sadik Ahmet and Others v. Greece (64756/01), 3 February 2002; Agga v. Greece (no. 2) (nos. 50776/99; 52912/99), 17 October 2002; Agga v. Greece (no. 3) (no. 32186/02), 13 July 2006; Agga v. Greece (no. 4) (no. 33331/02), 13 July 2006.

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the official mufti and concluded that his conviction for usurping the functions of a religious minister constituted an infringement of Article 9 ECHR. Breach of religious freedom was also found in Agga v. Greece (nos. 2, 3 and 4). By contrast, in Sadik Ahmet and Others, the Court ruled that a breach of Article 6 ECHR had occurred on account of excessive length of proceedings. A violation of Article 6 ECHR for excessive length of proceedings was also found in Agga (no. 1) and Tsingour.64 The former concerned a Greek citizen of Turkish origins, a candidate in the Parliamentary elections of 18 June 1989, who was prosecuted for attempting to bribe a voter. The latter dealt with the non-registration of a Greek citizen of Turkish origins in a professional association, challenged before domestic courts. Undoubtedly, the most persistent ECtHR condemnations of the Greek state on the basis of claims touching upon ethnic pluralism were those established in relation to freedom of association. A series of ECtHR judgments denounced state impediments to the active participation of individuals asserting an ethnic minority identity in domestic socio-political life. Sidiropoulos regarded Greek courts’ refusal to register, in accordance with domestic legislation, the nonprofit-making association Home of Macedonian Civilisation on grounds that its intention was to undermine the territorial integrity of Greece.65 Ouranio Toxo, on the other hand, originated in an application submitted by a lawfully constituted political party, established with the aim to defend the minority rights of Slav Macedonians in Greece, and two Greek nationals, members of the party’s secretariat.66 The sign affixed to the party’s headquarters with its name in both Greek and Macedonian had triggered a wave of violent protests against it. Recently, the ECtHR found new violations of Article 11 ECHR in the cases Bekir Ousta, Emin and Others and Tourkiki Enosi Xanthis and Others.67 Whilst Tourkiki Enosi Xanthis and Others concerned the dissolution by domestic courts of a non-profit association, founded with the aim to preserve and promote the culture of the ‘Turks of Western Thrace’, the other cases regarded the refusal of the judiciary to register the associations Evros Prefecture Minority Youth Association and Cultural Association of Turkish Women of the Region of Rodopi, with the argument that only a Muslim minority – and not a Turkish minority – was recognised by the Greek state pursuant to the 1923 Lausanne Treaty. 64

65 66 67

ECtHR, Agga v. Greece (37439/97), 25 January 2000; and Tsingour v. Greece (no. 40437/98), 6 July 2000. ECtHR, Sidiropoulos and Others v. Greece (no. 26695/95), 10 July 1998. ECtHR, Ouranio Toxo and Others v. Greece (no. 74989/01), 20 October 2005. ECtHR, Bekir-Ousta and Others v. Greece (no. 35151/05), 11 October 2007; Emin and Others v. Greece (no. 34144/05), 27 March 2008; and Tourkiki Enosi Xanthis and Others v. Greece (no. 26698/05), 27 March 2008.

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The only case drawing on claims about protection of ethnic diversity which led to a friendly settlement was Raif Oglu.68 The dispute concerned the suspension and finally the dismissal of a teacher in the minority primary school of Xanthi, which in his capacity as a member of the Union of Muslim Teachers of Western Thrace, published and distributed documents containing assertions of ‘Turkish’ ethnic origin. Although both the suspension and the dismissal decisions of the prefect had been quashed by the Administrative Court of Appeal (ACA), domestic authorities were refusing to comply with the ACA judgment. The Greek state agreed to re-appoint the applicant and grant him compensation for salaries and benefits due for the period of dismissal and the Court considered the matter resolved. A set of recent ECtHR judgments about the rights of individuals from ethnic minority groups has further disclosed gaps in rights protection due to abusive police treatment. In Bekos and Koutropoulos, two applicants of Roma origins complained about acts of police brutality when arrested and detained for attempted burglary, leading the Court to declare a violation of Article 3 ECHR.69 Additionally, and though rebuffing the argument that the impugned treatment was racially motivated, the Court recognised that domestic authorities had failed in their duty under Article 14 ECHR, read together with Article 3 ECHR, to investigate whether racial considerations had played a role in the incident. A breach of Articles 3 and 14 ECHR was also pronounced in Petropoulos-Tsakiris on grounds that the Greek state had failed to carry an adequate investigation into whether the use of excessive police force against the Roma applicant had caused her to miscarry.70 The Court held unanimously a violation of Article 2 ECHR in Karagiannopoulos, a case regarding a Greek national of Roma origins, suspected of drug trafficking and shot in the head during a police investigation that caused his permanent disability at the age of 17.71 Although the facts of the case were in dispute between the parties, the Court accepted the applicant’s claim that the police had used excessive and life-threatening firepower. It also found glaring omissions in the conduct of the investigation which followed. Claims regarding infringement of Articles 2 and 14 ECHR were equally raised in Zelilof, a case concerning a Greek citizen of Russian-Pontic origins who was maltreated by the police.72 The Court refused both but identified a violation of Article 3

68 69 70 71 72

ECtHR, Raif Oglu v. Greece (no. 33738/96), 27 June 2000. ECtHR, Bekos and Koutropoulos v. Greece (no. 15250/02), 13 December 2005. ECtHR, Petropoulou-Tsakiris v. Greece (no. 44803/2004), 6 December 2007. ECtHR, Karagiannopoulos v. Greece (no. 27850/03), 21 June 2007. ECtHR, Zelilof v. Greece (no. 17060/03), 24 May 2007.

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ECHR. Considering the applicant’s allegations, corroborated by medical reports, and the circumstances under which the applicant had sustained injuries, the Court ascertained that the Greek state had not furnished convincing or credible arguments to explain or justify the degree of force used. It further identified deficiencies in the administrative and judicial inquiry into the incident. Abuses in police behaviour were also exposed in cases implicating foreigners. In Alsayed Allaham, for instance, the Court found breach of Article 3 ECHR, for the applicant, a Syrian national, legally settled in Greece, had been ill-treated while waiting in a police station to declare a robbery.73 In Celniku, in turn, a case concerning an Albanian national fatally wounded at the age of 20 during an attempted police arrest, the Court established a violation of Article 2 ECHR.74 Cases brought by foreigners regarding detention conditions, unlawfulness of detention and the right to have a fair trial have rapidly grown in number over the past few years. Since Hornsby, a judgment issued in 1997 concerning the refusal of the Greek administration to comply with domestic court decisions,75 case law has developed dramatically. In Twalib and Biba, for example, the Court found a violation of Article 6 ECHR for non-availability of legal aid before the Court of Cassation.76 Later, in Perlala, the Court accepted the applicant’s complaint about unfairness of domestic proceedings on account of the strict, formalistic stance of the Greek Court of Cassation, according to which Article 6 of the Convention could not constitute an independent ground of appeal on points of law.77 Portington, Alija, Jarnevic & Profit, Allushi, Vassilev, Noel Baker, Peca, Gjashta, Betar Metushi, Luan Metushi and Sekseni dealt with excessive duration of civil and criminal proceedings.78 As to Dougoz, Peers, Sajtos, Kurti, Mohd, Papa, Kaja and John, the Court pronounced infringement of Articles 3, 5 and 6 ECHR in view of degrading detention conditions in police stations and prisons, lengthy and unlawful conditions of detention, and

73 74 75 76

77 78

ECtHR, Alsayed Allaham v. Greece (no. 25771/03), 18 January 2007. ECtHR, Celniku v. Greece (no. 21449/04), 5 July 2007. ECtHR, Hornsby v. Greece (no. 18357/91), 19 March 1997. ECtHR, Twalib v. Greece (no. 24294/94), 9 June 1998; and Biba v. Greece (no. 33170/96), 26 September 2000. ECtHR, Perlala v. Greece (no. 17721/04), 22 May 2007. ECtHR, Portington v. Greece (no. 28523/95), 23 September 1998; Alija v. Greece (no. 73717/01), 7 April 2005; Jarnevic & Profit v. Greece (no. 28338/02), 7 April 2005; Allushi v. Greece (no. 3525/04), 13 July 2006; Vasilev v. Greece (no. 2736/05), 18 April 2007; Noel Baker v. Greece (no. 32155/04), 21 June 2007; Peca v. Greece (no. 14846/05), 21 June 2007; Gjashta v. Greece (no. 4983/04), 18 October 2007; Behar Metushi v. Greece (no. 34148/05), 25 October 2007; and Luan Metushi v. Greece (no. 34643/05), 25 October 2007.

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the taking of judicial decisions regarding compensation for unlawful detention proprio motu and without a hearing.79

5. Conclusion Strasbourg jurisprudence against the Greek state provides evidence that the ECtHR has become an alternative forum for individuals from politically and socially disempowered groups to express concerns about the curtailment of their rights and to seek redress. The abundance of cases stemming from applications by foreigners and members of religious and ethnic minority communities reveals that legal action in Strasbourg is generally considered to be an effective means of counteracting state opposition to particular types of claims. In many of the cases discussed above, recourse to the ECtHR did not simply target the legal correction of a human rights infringement. In several instances, legal mobilisation has formed part of a broader strategy devised with a view to pursuing specific community interests. Domestic judicial attitudes towards the Convention and the ECtHR jurisprudence lie at the heart of the Greek state’s convictions in Strasbourg. The Greek judiciary does not simply act as a filter before an applicant may address the Court; once a judgment declaring breach of the Convention has been issued, Greek judges are required to re-appraise their stance and redefine their interpretations in accordance with the Court’s ruling.80 Bearing in mind that ECtHR cases are often a ‘disapproval’ of domestic judicial practice, a certain degree of resistance to comply with the Court’s analysis can sometimes be observed. In several cases brought forth by members of religious and ethnic minorities, breach of the Convention stemmed from erroneous interpretation of domestic legislation by national courts. Over the past 10 years, the absence of domestic case law regarding the ban on proselytism and the establishment of non-Orthodox places of worship arguably manifests a change in judicial approach that is congruent with the Convention. Conversely, ECtHR judgments originating in applications by individuals that attest an ethnic minority belonging have not markedly affected domestic judicial practice. The recent 79

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ECtHR, Dougoz v. Greece (no. 40907/98), 6 March 2001; Peers v. Greece (no. 28524/95), 19 April 2001; Sajtos v. Greece (no. 53478/99), 21 March 2002; Kurti v. Greece (no. 2507/02), 29 November 2005; Mohd v. Greece (no. 11919/03), 27 April 2006; Papa v Greece (no. 21091/04), 6 July 2006; Kaja v. Greece (no. 32927/03), 27 July 2006; and John v. Greece (no. 199/05), 10 May 2007. See Article 46(1) of the Convention.

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convictions of the Greek state for breach of the right of association exemplify that earlier ECtHR case law has not exerted a significant influence on national judicial evaluation.81 Domestic courts have reproduced their standard reasoning, characterised by longstanding preconceptions about the need to protect public order and preserve the country’s national identity and territorial integrity, leading to new, repetitive condemnations. The same could be fairly said regarding ECtHR case law condemning Greece for abusive police behaviour and lengthy, inhuman and unlawful detention conditions in cases brought by foreigners and Roma. Although in most of these cases changes in administrative practice constitute a sine qua non for the preclusion of similar violations in the future, the fact that ECtHR jurisprudence is progressively and dramatically expanding means that domestic judicial remedies are unavailable or insufficient. Greek judges do not seem to have grasped the implications of this category of ECtHR case law. Inadequate judicial scrutiny of administrative practices that severely restrict the rights and freedoms safeguarded in the Convention persists. The reasoning employed by Greek judges prevents litigants from gaining recognition of their demands at the national level, and encourages steady resort to the Strasbourg Court. Finally, turning to ECtHR jurisprudence dealing with structural problems of the Greek judicial order, namely those pertaining to access to justice and enjoyment of the right to a fair trial and an effective remedy, it is certain that ECtHR case law has not gone unnoticed. Concerned with much debated questions at the national level (i.e. excessive length of domestic proceedings), relevant rulings have not triggered contestation. For such kinds of problems, there is generally consensus about the need to undertake reforms, often of a legislative and/or a constitutional nature. Nonetheless, such reforms are often of such nature and scale that they need time to materialise. From this perspective, the pronouncement of continuous violations by the ECtHR has more to do with the difficulties faced in revising complex rules than domestic judges’ neglect of the ECHR’s prescriptions.

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ECtHR, Bekir-Ousta and Others v. Greece (no. 35151/05), 11 October 2007; Emin and Others v. Greece (no. 34144/05), 27 March 2008; and Tourkiki Enosi Xanthis and Others v. Greece (no. 26698/05), 27 March 2008.

Chapter Seven Protecting Individuals Belonging to Minority and Other Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in the Italian System Serena Sileoni 1. Introduction Italian case law at Strasbourg focuses on violations that reflect structural deficiencies of the domestic legal system – such as length or fairness of proceedings, freedom of correspondence, property rights – and which are therefore hard for local courts to address. In fact, such deficiencies may be the result of both legislation – and thus must be rectified by legislative activity – and persistent poor administration, which requires a systematic reform. With respect to civil and political rights, a conspicuous set of cases relates to the freedom of correspondence of detainees and of individuals who have declared bankruptcy. A very limited number of cases relate to freedom of expression and freedom of association; none the cases under study – i.e. cases relating to Articles 8-11 and 14 ECHR– raise any relevant issue of integration or political participation of marginalised individuals and minorities. A number of factors – cultural, sociological and legal – that may explain the scarcity of cases involving minorities and other vulnerable groups will be subsequently explored. National-level protection in Italy is afforded only to the so-called ‘historical’ minorities, that is, minorities living in border areas of the country having a strong link with the local territory (mainly French-speaking, German and Slovenian communities). Historical minorities concentrated along border regions are acknowledged and protected by Article 6 of the Constitution, and by special regional laws, which have constitutional force.1 Measures for the 1

Regions with special Statutes are Valle d’Aosta, Trentino Alto Adige, Friuli Venezia Giulia, Sardegna, Sicilia.

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integration and protection of such minorities include: the possibility to use their mother tongue in legal proceedings and before public authorities; bilingual education; and quotas in public institutions. Aside from the presence of these historical minorities, the population of Italy was for decades by and large homogeneous in terms of culture, language, religion and national identity. Therefore, the rising number of immigrants over the past fifteen to twenty years has raised a whole set of new issues for national authorities. In the 1980s ‘new’ immigrant minorities began to settle and live in Italy. They were mainly immigrants from the poorest countries of North Africa and the Mediterranean. According to the Minister for Internal Affairs, in December 2003 there were 2,193,999 aliens legally residing in the country (4.2% of the total population, 6,768 of them refugees) and 105,957 illegal immigrants.2 The presence of these new minorities has ushered in far-reaching changes from a sociological point of view. For the first time since the creation of the Italian state, the society has become pluralistic, and values and lifestyles have begun to diversify considerably. From a legal point of view, resident aliens enjoy the fundamental rights enshrined in the national Constitution, with the exception of a few rights and freedoms reserved for citizens, such as the right to vote. In general their integration in social and political life seems to be far from established, but this is more a sociological and economic problem than a legal one.3 In fact, foreigners do have the same access to justice as every other citizen, and are also entitled to legal aid if economically disadvantaged. So, the same system of internal remedies prior to recourse to the European Court of Human Rights (hereafter ECtHR or simply the Court) also applies to aliens and immigrants. Aliens seek justice from the ECtHR in those few cases where sufficient internal administrative or jurisdictional remedies are lacking, such as in matters concerning mass expulsions or expulsions due to terrorist threats. In this chapter, we shall explore some recent decisions in cases of mass expulsions of immigrants to Libya, which raise the principle of non-refoulement of individuals

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Among legal immigrants 32,3% are Europeans from non-EC countries, 26,5% from Africa, 18,5% from Asia and 11,8% from Central and South America. The most conspicuous nationalities are those from Morocco (11,4%) and Albania (11,2%). Source: FIDH, ‘Rapporto sull’Immigrazione. Il diritto di asilo in Italia: accesso alle procedure e trattamento dei richiedenti asilo’, Diritti dell’Uomo 1 (2005), 7. The United Nations Committee for the elimination of racial discrimination in March 2008 referred to the ‘factual segregation’ of Rome (CERD7ITA/CO/15). Further evidence of the lack of integration is given by the high rate of aliens in prison. They represent 30.1% of detainees. FIDH, Right of Asylum in Italy: Access to procedures and treatment of asylum-seekers, report no. 419/2, June 2005, p. 5.

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who risk ill-treatment and torture in their country of origin. These represent a starting point for ECtHR jurisprudence on minorities and vulnerable groups in Italy. This chapter intends to examine the role of the ECHR and the ECtHR in promoting a culture of human rights in Italy, with reference to minorities and vulnerable groups. The second section of the chapter analyses the Italian level of protection of fundamental rights, the integration between the ECHR and the national system and, in general, the most significant ECtHR case law concerning the Italian state. The third section introduces Italian claims citing Articles 8-11 and 14 ECHR, other than cases concerning minorities and immigrants. The fourth section examines in detail two relevant cases among these categories of claims, and the last section seeks to draw from the cases under review some conclusions on the ECHR’s impact on Italian legal culture.

2. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship Italy is considered a Western democracy in which human rights have been protected and guaranteed since its foundation. Already in the Fundamental Law prior to the Constitution [Statuto Albertino]4 there was a catalogue of rights, mainly from a liberal rather than a welfare perspective. The Constitution, which was approved in 1948 after the Second World War, provides for both a catalogue of rights and a system necessary for their recognition.5 Individuals living in Italy could claim such protection before the courts, which must be independent from other branches of power and subject only to law (Articles 101, 104 Const.). This section provides a broad overview of the Italian system for the protection of fundamental rights, in connection to the ECHR system. It also explores the ECHR’s impact on public opinion and among legal scholars and lawyers. Regarding the judicial system, court proceedings in Italy have at least two stages. After the first instance judgment, the losing party can appeal to a superior court [corte d’appello] seeking to revise the proceedings on the merits. A third stage of appeal [ricorso in cassazione] is possible only in a limited

4 5

Cfr. G. Rebuffa, Lo Statuto Albertino (Bologna: Il Mulino, 2003). The two parts interact and must be read as a complete and single text. Cfr. M. Luciani, ‘La Costituzione dei diritti e la Costituzione dei poteri. Noterelle brevi su un modello interpretativo ricorrente’, AA.VV., Scritti in onore di Vezio Crisafulli, (Padova: Cedam, 1985), vol. II.

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number of cases, on grounds exclusively pertaining to the application of the law. As a tribunal separate from the judicial system, the Constitutional Court has been evolving as a court of human rights. In its original conception, its role was to annul Acts or sections of Acts that were in conflict with the Constitution, guaranteeing the application of the hierarchical principle. In other words, the Constitutional Court was conceived as the guardian of the hierarchical structure of law, ensuring that statutes and acts are not in conflict with the supreme law of the Constitution. For this reason, the Italian Constitution does not allow individuals direct access to the Constitutional Court. There are only two ways to generate a decision by the Constitutional Court. Firstly, during the course of proceedings, judges can ask the Court to consider the constitutionality of an Act that is relevant in the case under deliberation [ricorso in via incidentale]. Alternatively, regional and national authorities can contest the legitimacy of a regional or state Act, respectively, for a period of two months after its publication [ricorso in via principale]. According to the Italian Constituent Assembly, the Constitutional Court should act as a court of human rights only indirectly, unlike its counterparts in Spain or Germany, for example, where individuals are able to address claims directly to the Tribunal Constitutional and the Bundesverfassungsgericht. In Italy, its proper and original role is to avoid conflicts between ordinary legislation and the Constitution, or in other words, to avoid infringements of the Constitution by the legislature. Its original role as such included the protection of individual rights only indirectly. Subsequently, however, the evolution of the Constitutional Court should be seen as moving in the direction of protecting individual rights. Academics recognise the specific role of the fifteen judges of the Constitutional Court in promoting a culture of human rights. On the one hand, the Constitutional Court uses the cases under its deliberation to establish general principles.6 On the other hand, it often suggests to the ordinary judge, from whom the case originated, a way to resolve the specific dispute under its deliberation. Moreover, it systematically tends to review the reasonableness of legislation, especially regarding the equality principle.7 Such an indirect judicial review of human rights is in line with the development of the protection of human rights in communitarian and international systems. 6

7

Cfr. U. De Siervo, 1956–2006: cinquant’anni di Corte Costituzionale (Roma: Corte Costituzionale, 2006); L. Califano, Corte costituzionale e diritti fondamentali (Torino: Giappichelli, 2004); P. Bilancia, E. De Marco (eds.), La tutela multilivello dei diritti (Milano: Giuffrè, 2004). See V. Boncinelli, I valori costituzionali fra testo e contesto: regole e forme di razionalità del giudizio costituzionale (Torino: Giappichelli, 2007).

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The EU system, in the foundation of which Italy played a central role, has created a very strong system of protection of rights through the jurisprudence of the European Court of Justice (ECJ). The ECJ has expanded rights in areas such as environment and privacy, which do not appear in the Italian Constitution.8 In spite of the fact that its authority mainly pertains to economic matters, the ECJ has increasingly grown into a system that also protects human rights in a wider sense. The revolution of human rights review in Italy, however, is mainly linked to the European Convention on Human Rights (hereafter, ECHR) and the jurisprudence of the Strasbourg-based Court.9 For the first time, the right to individual petition in the ECtHR enabled Italians to directly address a court that engages in human rights review. Since the entry into force of law No. 848 of 4 August 1955 (ratification and execution of the European Convention on Human Rights), the ECHR has constituted an integral part of the Italian legal system, where, at least in theory, it has long held the force of an ordinary law. In fact, the Italian Constitution lacks an explicit provision which regulates the hierarchical position of international agreements. For that reason, prior to the Constitutional judgments of November 2007 (which are discussed further below), international agreements held the same rank as the laws that ratified them, that is the rank of ordinary legislation, submitted to the Constitution. In this theoretical frame, the ECHR has been considered as a common international agreement that, like any other, once ratified, carries the force of ordinary law (Article 72 Const.). Since its ratification, however, domestic jurisprudence has evolved in such a way as to give the Convention a certain primacy over ordinary law, implicitly recognising its quasi-constitutional rank. Both the Constitutional Court and the Supreme Court of Cassation have expressly stated that the Convention’s provisions cannot be derogated or abrogated by means of subsequent ordinary laws. In its judgment No. 10 of 1987, the Constitutional Court stated that the Convention’s provisions ‘derive from an atypical authority of the State, which cannot be abrogated or modified by means of ordinary law.’10 In the 1993 case 8

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Notably, since the entry into force of the Single European Act of 1987 (Charter XVI), the EC has promoted a strong environmental policy that binds the Member States to comply with principles and standards elaborated by the European legislator and the ECJ. The same can be said with regard to privacy policy. The Stauder case (ECJ, Case C-29/69) firstly clarified the EC powers and tasks in this sphere. On that point, the doctrine is enormous. See among others M. Cartabia (ed.), I diritti in azione: universalità e pluralismo dei diritti fondamentali nelle Corti europee (Bologna: Il Mulino, 2007). The Court referred as well to the rules contained in the UN Human Rights Covenants of 1966.

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of Medrano11 the Supreme Court of Cassation recognised in the Convention’s provisions a ‘particular value’ with respect to ordinary subsequent laws, due to the nature of ‘the general principles of the legal system’ that defines them. According to the Supreme Court, its particular status as such can be deduced from the Italian Constitution itself12 as well as from the jurisprudence of the European Court of Justice, which recommends that national courts apply ECHR provisions as part of communitarian law.13 Reinforcing the implicit recognition of the Convention’s semi-constitutional status, a recent judgment by the Court of Cassation declared that Strasbourg’s jurisprudence has the role to consolidate and harmonise the living law concerning the ECHR; in other words, it has the role to interpret the ECHR in a binding manner.14 In a January 25, 2007 decision, the same court said that the effects of ECtHR decisions are constitutive, that is, they generate rights and obligations even within the national system.15 This means that judges must decide in conformity with ECtHR jurisprudence, even when this implies reopening proceedings that have already been concluded.16 The question whether

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14 15

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Judgment of 10 July 1993. In this case, the Supreme Court of Cassation found a conflict between the expulsion of a foreigner, decided in accordance with a governmental decree on drugs (D.P.R. 9 October 1990), and Article 8(2) of the ECHR, relating to the right to privacy and family life. Article 2 of the Constitution reads: ‘The Republic recognises and guarantees the inviolable human rights, whether individuals or in social groups expressing their personality […]’ Furthermore, according to the principle of pacta sunt servanda expressed in Article 11: ‘Italy […]agrees, on conditions of equality with other states, to the limitations of sovereignty necessary for an order that ensures peace and justice among Nations; it promotes and encourages international organisations having such aims in view.’ Especially after the inclusion of Letter F within the Maastricht Treaty (1992) – now Article 6(2) of the Amsterdam Treaty on the European Union (1997) – which states: ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.’ Cass. civ., sez. un., 26 January 2004, n. 1340. Other recent decisions of the Court of Cassation confirm this view: Cass. I sez. civ. no. 10542 of 19 July 2002; I sez. civ. no. 28507 of 23 December 2005. The Court of Cassation has stated that the absence of a provision allowing the reopening of proceedings constitutes violation of Article 46 ECHR and represents a denial of justice in our national system (Cass. Pen., Sez. I, 1 December 2006, no. 2800, decision on the Dorigo case, report of the European Commission of Human Rights, no. 43, 9 September 1998). A decision of the Constitutional Court (judgment no. 129/2008, interlocutory to Dorigo case) strongly insisted on that point, explicitly asking the Parliament to reform the criminal justice system by introducing the possibility of reopening proceedings when there is an ECtHR condemnation of Article 6(3) ECHR. The former Minister of Justice introduced a bill (bill no. S1797)

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to recognise a higher rank for the ECHR has been resolved by two recent Constitutional Court judgments. A major constitutional reform in 2001 revised, among others, Article 117 Const., which specifies that the legislature must legislate in compliance with constraints deriving from international obligations.17 Following this amendment, the Constitutional Court has changed its traditional position and has given ECHR norms constitutional significance.18 Judgments Nos. 348 and 349/2007 have definitively settled the hierarchical position of the Convention. In a highly controversial statement, the Constitutional Court established that, since the entry into force of revised Article 117 Const., any international agreement occupies a median position between the Constitution and ordinary legislation. The Constitutional Court also stated that the ECtHR is the only judicial body entitled to authoritatively interpret Convention provisions, but that it itself remains the guardian of the fundamental principles of the national system. Such a statement means that, in a theoretical and unlikely conflict between the ECHR and the supreme principles of the Italian Constitution, the Constitutional Court is the only body with the legitimate authority to declare the supremacy of the Constitution with respect to the Convention. From the above discussion, it becomes evident that the role of the ECHR in the Italian legal system is clearer now than it was in the past. Nonetheless, appeal to the Convention remains infrequent, apart from cases regarding Article 6 ECHR. The view of the Convention as an essential instrument in promoting fundamental rights is not so widespread. Two reasons, above all, may explain this. Firstly, an influential academic viewpoint claims that fundamental rights are regulated in greater detail in the Italian Constitution than in the ECHR.19 The general perception of legal professionals is that Italy already has a high level of protection of human rights. On this subject, the Constitutional Court recently noted that ‘the European Convention on Human

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18

19

which created the possibility of opening proceedings when the ECtHR has ascertained a violation of principles of due process (Article 6(3) ECHR). Article 117 of the Italian Constitution reads that ‘Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU-legislation and international obligations’. On this point, see B. Randazzo, ‘Le pronunce della Corte Europea dei Diritti dell’Uomo: effetti ed esecuzione nell’ordinamento italiano’, in N. Zanon (ed.), Le Corti dell’integrazione europea e la Corte Costituzionale italiana (Napoli: ESI, 2006); D. Tega, ‘Le sentenze della Corte costituzionale nn. 348 e 349 del 2007: la CEDU da fonte ordinaria a fonte “sub-costituzionale” del diritto, Quaderni costituzionali 1 (2008). See A. Pace, ‘La limitata incidenza della C.e.d.u. sulle libertà politiche in Italia’, Diritto pubblico 1 (2001), 1.

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Rights does not recognise higher guarantees than Article 111 of the Constitution’ on due process.20 The abovementioned academic viewpoint must be read in conjunction with the subsidiary role of the ECtHR. Article 35 of the Convention establishes that ‘the Court may only deal with the matter after all domestic remedies have been exhausted’. It is evident that such a subsidiary role of the ECtHR allows people to appeal to the ECtHR only after the conclusion of all the national stages of proceedings, functioning as a strong filter for plaintiffs. Such a viewpoint could in part be confirmed by the analysis of legal issues under the scrutiny of the ECtHR. Italian cases before the ECtHR concern areas where there is a gap in the Italian system and a chronic violation of rights that are not provided for in the Italian system – such as the right to privacy – or are otherwise defined in such a way as to provide less protection – such as property rights or the right to a fair trial. Secondly, for the most part, the Italian political elite appears to lack a legal culture regarding the international protection of human rights, despite the fact that the ECHR was ratified decades ago. There are no significant political debates on such issues, nor is there a genuine intention to comply with ECtHR decisions. This is manifested, for instance, in the failure of the Italian Parliament to remedy the structural discrepancies between the Italian system and Convention principles. Furthermore, there are no significant differences between the two largest political coalitions in their dismissive attitude towards the ECHR. A similar indifference can be seen in the media’s attitude. In the archive of press reviews of the Chamber of Deputies,21 we found only 31 articles dealing with the Convention from 1998 to 2008. Some of them deal with general issues, like the functions of the Court, Court reform and the appointment of the Italian judge Vladimiro Zagrebelsky, or are about cases outside Italy. Among the 20 articles dealing with unfavourable judgments, 6 regard judgments involving famous people (the politician Craxi, the Savoia royal family, the famous journalist Sofri and the judge Caselli).22 The rest of the 20

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Constitutional Court no. 89/2008. All the judgments of the Constitutional Court can be found at the web site http://www.cortecostituzionale.it. The press review of the Chamber of Deputies (one of the parliamentary branches) is one of the most comprehensive available to citizens (http://www.rassegna.camera.it). ‘La Corte di Strasburgo dà ragione a Bettino Craxi. Ancora una volta’, Avanti!, 18/7/2003; ‘Craxi, la Corte di Strasburgo condanna lo Stato italiano’, Repubblica, 18/7/2003; ‘Scontro Perna-Caselli, la Corte di Strasburgo boccia in appello il ricorso del giornalista’, Stampa, 7/5/2003; ‘Savoia, la Corte di Strasburgo archivia il ricorso contro l’Italia’, Corriere della Sera, 25/4/2003; ‘Caso Sofri, la Corte di Strasburgo giudica l’Italia’, Stampa, 5/3/2003; and ‘Perché Sofri è ricorso alla Corte europea dei diritti dell’uomo’, Foglio, 4/3/2003.

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articles in which the ECHR is mentioned concern issues pertaining to the administering of justice,23 and only three deal with a case that concerns expulsions of illegal immigrants to Libya.24 Over the past few years, however, it has been possible to discern an increasing interest in the ECHR and the Strasbourg Court on the part of civil society. This is evident in the media attention given to the Libya case on the expulsion of immigrants, which will be discussed below. At the same time, the activism of some NGOs in said case and in the Saadi rulings (also analysed below) suggests an emergent phenomenon of strategic litigation in minority-related claims. This can largely be attributed to the extraordinary activity of the most important association engaged in protecting vulnerable groups in Italy, the Unione forense per la tutela dei diritti dell’uomo. The Libya case represents the first attempt to bring a case to the ECtHR with the goal of focusing attention on a host of problematic and controversial issues regarding immigrants and asylum seekers. There is little doubt that since 2000 we have seen a growth in knowledge about the ECHR system and increasing public sensitivity to instances of European judicial review. In particular, academics and scholars are increasingly engaged in research into fundamental rights, also involving the ECHR. There are several Italian institutions currently involved in human rights studies, mainly in universities, in the form of Masters or Research Centres. Some develop judicial aspects, while others focus on theory and practice for people who desire to acquire specific skills in human rights topics, from conflict management to humanitarian action. Moreover, projects on international and European human rights are increasingly being carried out in universities. It is significant, for example, that in 2006 the project granted the largest amount of government funding dealt with

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‘Processi lumaca, lo Stato rischia milioni di ricorsi’, Libero-inserto Libero mercato, 20 Febraury 2008; ‘Ricorsi non decisi e posta censurata: sul ‘41bis’ condanna per l’Italia’, Sole24Ore, 17 January 2008; ‘Riapertura dei processi senza paure’, Sole24Ore, 20 July 2006; ‘Più processi da ridiscutere’, Sole24Ore, 19 July 2006; ‘Carcere preventivo frenato’, Sole24Ore, 2 June 2006; ‘All’attenzione della Consulta lo stop alla revisione dei processi’, Sole24Ore, 14 April 2006; ‘Contumacia, la Corte europea dei diritti dell’uomo bacchetta l’Italia’, Italia Oggi, 25 May 2004; ‘La Corte di Strasburgo boccia altre 44 volte la giustizia italiana’, Opinione delle libertà, 30 March 2002; finally an article on child custody, ‘Minori e servizi sociali, Italia condannata dalla Corte Europea dei diritti dell’uomo’, Secolo XIX, 12 October 2000. ‘L’Europa: no all’espatrio per cinque tunisini’, Corriere della sera, 25 November 2006; ‘Espulsioni, l’Europa ferma l’Italia’, Repubblica, 25 November 2006; and ‘La Corte europea blocca l’espulsione di tre tunisini’, Sole24Ore, 25 November 2006.

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the dialogue between the Courts and multilevel protection of rights.25 Other evidence comes from the most important constitutional scholars’ web sites, which dedicate web pages to questions related to the ECHR.26 These initiatives reflect scholars’ growing interest in studying issues related to the international protection of human rights. Legal literature on the subject has become increasingly systematic and widespread. Thousands of articles and notes are dedicated to academic reviews of the ECHR and its Court. The number of monographs on it has also been rising in the last few years. Still, these mainly focus on traditional infringements of the Convention or formal aspects of the relationship between the Convention and the national system, rather than on the protection of vulnerable individuals and groups.

3. Litigation in ECtHR on Claims Raising Articles 8-11/14 ECHR as well as Claims Involving Minorities and Immigrants ECtHR case law involving marginalised individuals and minorities citing Articles 8, 9, 10, 11 and 14 ECHR includes very few cases against Italy. Moreover, with the exception of the recent Saadi case and the case of mass expulsion to Libya, the relevant case law on Articles 8-11 and 14 ECHR regarding Italy seems to show no significant violation of civil and political rights. Instead, the majority of cases on Articles 8-11 and 14 ECHR originating from Italy pertain to the secrecy of correspondence of prisoners and people declared bankrupt, and custody rights. There is also case law regarding the status of persons who cannot exercise certain rights because they are minors, because they face a criminal conviction or because they have been declared bankrupt. Only a very small number of cases concerns defamation, freedom of the press and limits to freedom of association, none of which involve large-scale violations of human rights. In sum, with respect to Articles 9-11 and 14 ECHR, it can be said that there is no significant case law against Italy. Rather, regarding Article 8 ECHR – the Article most frequently invoked among those under examination – most of the judgments concern the secrecy of correspondence for detainees and people declared bankrupt, as well as child

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Project PRIN 2006, Universities of Bari, Siena, Luiss Guido Carli in Rome, Trento: Dalla circolazione dei modelli al dialogo tra sistemi giuridici: le vie di comunicazione del costituzionalismo contemporaneo. Euroscopio < Osservatorio sulla Corte di Strasburgo in http://www.forumcostituzionale.it, which has monitored case law since November 2004; Giurisprudenza < Segnalazioni < Corti europee < Corte europea dei diritti dell’uomo in http://www.associazionedeicostituzionalisti .it, which has monitored case law since the beginning of 2007.

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custody cases. Others, like the Craxi case,27 raise the right to privacy as grounds to justify the prohibiting of public disclosure of aspects of private life. The reason for such frequent recourse to Article 8 ECHR is that the Italian Constitution lacks a specific and clear norm regarding private life. Although there are Articles regarding the home, correspondence and family life, privacy is not expressly protected by the Italian Constitution. The broad and generic definition of the notion of private life under the ECHR fills this gap in the Italian catalogue of rights.28 The lack of an explicitly recognised right to privacy in the Italian system has led to frequent recourse to the ECtHR as a subsidiary system of justice. Regarding marginalised individuals, minorities and vulnerable groups, such as ethnic or religious minorities, hardly any measures promoting inclusive national policies existed until recently. As stated above, the most important cases concern issues that are not connected with minority problems. Even in the few cases where the plaintiff belongs to a traditional minority or other group that can be considered as vulnerable (i.e. foreigners and women), he or she alleges violations that could be alleged by anyone. Recently, however, a few cases concerning mass expulsion to Libya and the extradition of individuals convicted of crimes to countries that use illtreatment and torture (the Saadi case) have been brought before the ECtHR. We shall subsequently focus on these cases. It is important here to understand that they concern asylum seekers and immigrants, who are afforded scant protection under Italian jurisdiction. They represent the first round of cases in which we can witness a strategic approach to the ECtHR aimed at promoting the protection of the fundamental rights of specific vulnerable groups. These recent cases may signal an evolution in the perception of the ECHR system in Italian legal culture, although they are still quite isolated, and very marginal with respect to traditional cases concerning the administration of justice. At the moment, the fact that most cases concern identical fair trial and length of proceedings issues means that Italian lawyers are somewhat blasé in their attitude towards traditional cases which they expect to win. Applicants, acting individually in most cases, are motivated above all by the expectation of monetary compensation, and in a few cases by the hope of improving personal or structural conditions. 27 28

See ECtHR, Craxi (no. 2) v. Italy (no. 25337/94), 17 July 2003. The Guerra and Others case (ECtHR, Guerra and Others v. Italy (no. 116/1996), 19 February 1998) confirms this assumption. This case regards a failure to provide the local population with information about risk factor and how to proceed in the event of an accident at a nearby chemical factory. It relies on concepts of respect for private life and the right to a healthy environment, both of which are absent from the Italian Constitution.

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The response of national authorities to ECtHR judgments finding violations of Articles 8-11 and 14 ECHR has been the adoption of individual remedies on a case-by-case basis. With the exception of the Saadi and Libya cases, none of the remaining cases citing these articles can be considered as strategic litigation. Only in rare cases have they triggered a political debate for implementing broader legislative measures or policy changes. Instead, national authorities have tended to respond with individual remedies. At the same time, unintentionally and indirectly, they have promoted legislative reforms or political debate primarily in order to pre-empt mass appeals to the ECtHR.29 An individual approach to the protection of fundamental rights before the ECtHR, where plaintiffs are more interested in individual measures than in changing laws or political attitudes, can also be discerned in the nature of litigation and legal support. Although there is now an increasing number of ‘specialists’ who address the ECHR’s organs,30 most cases concerning violations of Articles 8-11 and 14 of the ECHR have been taken on by the lawyers who had defended the plaintiffs in national proceedings before arriving at the ECtHR. They are generally not taken on by lawyers specialising in international human rights protection, apart from some exceptions where claimants choose specialised lawyers.31 Moreover, only two cases (Scozzari and Giunta32 and Saadi) have involved third party intervention. In the first case, the intervening party was the Belgian Government which acted due to the fact that the case concerned a divorce in which one party was Belgian. In the second case, the intervening party was the UK, which joined forces with the Italian Government in demanding a change to the interpretation of Article 3 ECHR. Here the reason was mainly strategic, as we will see below. Regarding the nationality of plaintiffs, only approximately five percent of litigants citing Articles 8-11 ECHR are foreigners, yet their appeals do not concern foreign status matters. Rather, they are about issues ranging from the

29

30 31

32

Such an individual approach, however, is common to most cases in which violation of the Convention is found, including those outside the remit of Articles 8-11 and 14 ECHR (as in matters of administration of justice and property right). For the legislative reforms caused by the reiterative violations of the articles in object, see for example the Legislative Decree no. 5/2006 on bankruptcy and the Law no. 279/2000 on the special regime of detention. A web site of specialist lawyers has been established: http://www.humanrights.it. As in bankruptcy appeals, most of them were defended by two lawyers from Benevento; other appeals were defended by the President of the Unione Forense per la Tutela dei Diritti dell’Uomo in Rome). ECtHR, Scozzari and Giunta v. Italy (nos. 39221/98 and 41963/98), 13 July 2000.

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secrecy of correspondence (Ospina Vargas v. Italy33) - also claimed by many Italian applicants - to divorce proceedings between an Italian and a Belgian. Other plaintiffs included a Swiss man whose appeal was rejected, and an Albanian prisoner in Italy. Among cases regarding Articles 8-11 and 14 ECHR, only Saadi was brought by a foreigner and concerned relations between foreigners and national institutions. Most of the appeals are made by individual plaintiffs. There is only one case involving an association (Grande Oriente d’Italia di Palazzo Gustiniani,34 a Masonic association) and another one was a joint claim (Guerra and others). Women are rarely plaintiffs. In cases regarding violations of Articles 8-11 and 14 of the Convention, since the ECHR entered into force, nine appeals have been lodged by women jointly with men, and only ten by a woman alone. Nonetheless, such data has little significance. In fact, most of the claims do not pertain to gender issues. Five out of the nineteen appeals brought by women regard family relationships, such as child custody or adoption, while the other fourteen cases raise gender-neutral claims that could be submitted equally by men or women, such as violation of privacy in the context of bankruptcy or detention, or violation of property rights in expropriation procedures. The notable absence of women and minorities (apart from the mass expulsion to Libya case and the Saadi ruling) shows how marginal the impact of the ECHR has been in building a pluralistic culture in the Italian system and in dealing with the problems of vulnerable groups. This can be explained by several factors: a strong cultural identity and the homogeneity of society that derives from a common language; a pre-eminent religion and a common Weltanschauung; and the presence of a domestic system of human rights protection for both citizens and foreigners. The dominant attitude is to consider ECtHR proceedings as a further stage of proceedings, primarily in cases that concern structural deficiencies in the administration of justice or in the protection of property rights. Another explanation pertains to the inactivity of non-institutional actors, such as activists, interest groups and religious, cultural or other associations. In fact, there is no specific system or structure of legal support for individuals seeking to address rights claims in Strasbourg. The only way is to pay a lawyer (or to turn to legal aid with the right to gratuito patrocinio). Although we are seeing the emergence of lawyers’ associations specialising in the protection of human rights and, in general, NGOs that work to improve legal defence of disadvantaged people, such efforts are still at an early stage and nearly always

33 34

ECtHR, Ospina Vargas v. Italy, (no. 40750/98), 14 October 2004. ECtHR, Grande Oriente v. Italy, (no. 35972/97), 2 August 2001.

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involve the Unione forense per la tutela dei diritti dell’uomo. The broader lack of mobilisation by NGOs and civil society can justify the near absence of claims concerning minorities and immigrants. It suggests that awareness of ECHR rights is at an early stage, and people who resort to the Strasbourg Court do so only in relation to a limited set of issues that Italian lawyers are able to deal with. Nonetheless, the situation has partially been changing – as the Saadi and Libya cases show – largely due to the following factors. First, legislative reforms have aimed at spreading Strasbourg case law and its implementation. Most importantly, the Azzolini law of 2006 established a procedure for supervision of the implementation of judgments by the Government and Parliament. Secondly, jurists’ associations, most prominently the Unione Forense per la Tutela dei Diritti dell’Uomo,35 have promoted strategic litigation with the aim of bringing to the attention of Strasbourg institutions and the Italian government the dysfunctions of the domestic judicial system, also with regard to marginalized individuals and minorities.36 Jurists’ human rights associations have multiplied over the years: a Consultative Organ for European Justice (Consulta per la giustizia europea dei diritti dell’uomo) reuniting 29 different associations (including the Unione forense) was established in 1986 with the aim of bringing instruments for the protection of human rights to the attention of lawyers’ and magistrates’ associations. In an optimistic view, the greater engagement of Italian institutions (as provided for by the Azzolini law) and the activism of the Unione Forense, both relevant for the Saadi and Libya cases, most likely represent an early indication of a trend towards strategic litigation in matters involving minorities and vulnerable groups. We now turn to this issue by analyzing the recent Saadi and Libya cases.

4. ECtHR Jurisprudence in the Cases Under Review As mentioned above, the Saadi case and the case on mass expulsion to Libya represent a new approach to the ECHR on the part of Italian lawyers, moving

35

36

Significantly, on June 4, 2008 the Unione forense per la tutela dei diritti dell’uomo inaugurated the Osservatorio permanente della giurisprudenza della Corte europea dei diritti dell’uomo. Another relevant initiative by the Unione is the annual course on the European protection of human rights addressed especially to lawyers. In this regard, the Rome Bar Association (Ordine degli avvocati di Roma) was admitted in two cases outside Articles 8-11 ECHR (ECtHR, Goddi v. Italy (no. 8966/80), 9 April 1984 and ECtHR, Capuano v. Italy (no. 9381/81), 25 June 1987, both concerning excessive length of proceedings), intervening as amicus curiae and providing information on the Italian legal system.

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from an ‘individual’ slant to strategic litigation. Before discussing the impact of such cases, we will describe them briefly. The Saadi case is the first judgment on asylum matters brought against Italy.37 Nassim Saadi, a Tunisian living in Italy on the basis of a residence permit, was arrested on suspicion of involvement in international terrorism (Article 270 bis of the Criminal Code), among other offences, and was placed in pre-trial detention. In a judgment of 9 May 2005 the Milan Assize Court took the view that the acts of which he was accused did not constitute international terrorism but criminal conspiracy. It sentenced the applicant to four years and six months’ imprisonment for criminal conspiracy and for the offence of forgery. The applicant and the prosecution appealed. In the meantime, on 11 May 2005, two days after the delivery of the Milan Assize Court’s judgment, a military court in Tunis sentenced the applicant in his absence to twenty years’ imprisonment for membership in a terrorist organisation operating abroad in time of peace and for incitement to terrorism. On August 8, 2006 the Minister of the Interior ordered him to be deported to Tunisia, applying the provisions of law decree No. 144 of 27 July 2005 (entitled ‘Urgent measures to combat international terrorism’ and later converted to law No. 155 of 31 July 2005). On 11 August 2006, the deportation order was confirmed by a judicial order. On the same day, the applicant requested political asylum. He alleged that he had been sentenced in his absence in Tunisia for political reasons and that he feared he would be subjected to torture and ‘political and religious reprisals’. In a decision of 16 August 2006 the head of the Milan police authority [questore] declared the request inadmissible on the ground that the applicant was a danger to national security. On 15 September 2006 the Milan police authority informed the applicant orally that as his asylum request had been refused, the documents in question could not be taken into consideration. On 14 September 2006 the applicant asked the ECtHR to suspend or annul the decision to deport him to Tunisia, alleging that deportation to Tunisia would expose him to the risk of inhumane treatment contrary to Article 3 of the Convention and to a flagrant denial of justice (Article 6 of the Convention). In addition, it would infringe his right to respect for his family life (Article 8 of the Convention). He also claimed that the court’s decision had disregarded the procedural safeguards laid down in Article 1 of Protocol no. 7 to the Convention. Unlike the traditional Italian cases before the ECtHR, in Saadi there was a third party involved in the proceedings, the United Kingdom. The UK chose to intervene in order to challenge the prohibition of torture as an absolute right, as it had already done in Chahal v United Kingdom and in Ramzy v

37

ECtHR, Saadi v. Italy (no. 37201/06), 28 February 2008.

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Netherlands.38 In accordance with Italy’s stance, the UK claimed that the climate of international terrorism called into question the appropriateness of the ECtHR’s jurisprudence on states’ non-refoulement obligation under Article 3 of the ECHR. In fact, this Article has been interpreted as banning extradition of individuals to states where there is a real risk of torture, and inhumane or degrading treatment. Moreover, the Italian government declared that it had received diplomatic assurances from Tunisia, but the ECtHR rejected this opinion, saying that diplomatic assurances may not be sufficient if there is evidence of cruel treatment. To obtain such evidence, the Court used reports from Amnesty International and Human Rights Watch. In its judgment on 28 February 2008 it concluded that there was strong evidence that Saadi would be tortured after his expulsion to Tunisia, reaffirming its existing jurisprudence about Article 3 ECHR on the absolute value of prohibition of torture. In spite of this judgment, Italy seems to be proceeding with refoulement of persons convicted for terrorist crimes to countries where they will probably suffer cruel and unusual punishment. While the Saadi case has not challenged national practices and legislation, it is nevertheless very relevant in the Italian context from the perspective of mobilisation of civil society. For the first time, NGOs followed the proceedings, as they later did in the case of mass expulsions to Libya. In fact, contrary to the opinion of the United Kingdom and the Italian government, a wide mobilisation of NGOs arose to defend Mr. Saadi. Amnesty international, AIRE Centre, the International Commission of Jurists, Interights and Redress were engaged in a strong press campaign.39 Although the ECtHR did not agree to include their written submissions in the trial, NGOs attended the 11 July 2007 hearing with a report signed by them. They

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In Chahal v United Kingdom (ECtHR, Chahal v United Kingdom, (no. 22424/93), 15 November 1996), an order for deportation to India was found to be incompatible with Article 3 ECHR, because there was a real risk of the applicant being subjected to treatment contrary to Article 3 ECHR if he returned to his country. In Ramzy v the Netherlands (ECtHR, Ramzy v the Netherlands, (no. 37201/06), 28 February 2008), the applicant complained under Article 3 of the ECHR that, if removed to Algeria, he would be exposed to a real risk of torture or ill-treatment at the hands of the Algerian authorities. Amnesty International, Italian Division, press releases no. 81/2007 (11-07/2007); no. 29/2008 (28/02/2008); Human Rights Watch, ‘European Court of Human Rights Reaffirms the Absolute Prohibition on Return to Torture’, 28/8/2008; Human Rights Watch, ‘Letter to Italian Government’, September 20, 2007. The case was reported on the websites of other NGOs as well: the Association for the Prevention of Torture, the AIRE Centre, Justice, The Medical Foundation for the Care of the Victims of Torture, Open Society Justice Initiative, and the World Organisation Against Torture.

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also applauded the final judgment, as reported, among others, by the CIR40 and Amnesty International. The second case concerning the protection and rights of marginalised individuals and minority groups is the case of mass expulsions to Libya. Italian law No. 189/2002 states that illegal immigrants must be kept in centres while their application for asylum is considered – when the conditions are met – or be expelled from the country. Asylum seekers and immigrants are deprived of their personal liberty and held for weeks in centres pending their identification or waiting for their expulsion. The centres are generally overcrowded and do not offer appropriate sanitary and hygienic conditions. In spite of some efforts by Italian institutions,41 conditions in First Aid and Reception Centres have been criticised by the United Nations Committee against torture,42 the International Federation of the League of human rights, Amnesty International and the Commissioner of Human Rights of the Council of Europe. Cases of serious mistreatment of people staying in these centres by the police and social workers have been reported.43 As a result of such pressure from international organisations, the former government decided to establish an independent commission with a mandate to find solutions to these problems. International institutions, NGOs and some politicians denounced violations of fundamental rights in First Aid and Reception Centres, and brought a case concerning the First Aid and Reception Centre in Lampedusa before the ECtHR. Several immigrants who had landed in Lampedusa were detained in the First Aid and Reception Centre and were then expelled to Libya. Their expulsion was a result of confidential agreements between the Italian and Libyan governments without any guarantee for the rights of the individuals affected. A confidential European Commission report obtained by an Italian journalist, Fabrizio Gatti,44 stressed that between August 2003 and December 2004, the Italian government sent 5,688 Libyan immigrants back to Libya. After an inspection by the UN delegate appointed to assess detention conditions in the First Aid and Reception Centre of Lampedusa in June 2004, in

40 41

42 43 44

News of 9 March 2008, available at http://www.cir-onlus.org/Caso%20Saadi.htm. Order of the Ministry of the Interior, Linee guida per la gestione dei centri di permanenza temporanea e assistenza (CPT) e dei centri di identificazione (CID), 27/11/2002; establishment of the Committee for the protection of foreign minors ex Article 33, legislative decree no. 286/1998; establishment of the UNAR (National office against racial discrimination) under the Presidency of the Council of Ministers, ex legislative decree no. 215/03. CAT/C/SR/777 and CAT/C/SR/778. For a complete overview of the issue see FIDH, Rapporto sull’Immigrazione, p. 8. The news was published in the magazine Espresso, on 7 October 2005, ‘Io clandestino a Lampedusa’.

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October of the same year two Italian MEPs submitted a question in Parliament regarding expulsions from Lampedusa. The Parliamentary Assembly of the Council of Europe approved a declaration in June 2005 expressing strong concern about compliance with asylum proceedings in Lampedusa. While the European Parliament passed a resolution against the mass expulsions from Lampedusa,45 the Court of Strasbourg on May 10, 2005 passed an interim resolution to stop the expulsions of 11 out of 79 plaintiffs, represented by the lawyer Anton Giulio Lana from the Unione forense per la tutela dei diritti dell’uomo, and three days later it demanded that the expulsion of the other 79 immigrants be stopped. One year later, with a decision announced on May 11, 2006, the ECtHR declared as partially admissible four applications by a group of 85 aliens who arrived in Lampedusa in March 2005, were detained for some weeks in the island’s First Aid and Reception Centre and were ultimately expelled to Libya.46 The Court will examine these applications on the merits under Article 3 ECHR,47 Article 4 of Protocol no. 4 to the Convention (prohibition of collective expulsions of aliens),48 and Article 13 ECHR (right to an effective remedy).49 Along with the initiative of some Parliamentarians, including Tana de Zulueta and Chiara Acciarini, regarding the Libya case, there were also initiatives by NGOs. The UNHCR was denied permission to visit the First Aid and Reception Centre of Lampedusa on 15 March, and two days later 180 persons were expelled, as the UNHCR denounced the day after. Three days later, a letter by Amnesty International to the European Commissioner for Justice, Freedom and Security50 followed up two similar letters of October 2004 and January 2005, alerting the Commissioner about the potentially harmful consequences of the actions carried out by the Italian authorities. The CIR (Consiglio italiano per i rifugiati) was also active in denouncing the expulsions, as reported

45 46

47

48

49

50

Resolution no. P6_TA (2005)0138. ECtHR, Hussun and Others v. Italy (no. 10171/05); Mohamed v. Italy (no. 10601/05); Salem and Others v. Italy (no. 11593/05); and Midawi v. Italy (no. 17165/05), 11 May 2006. Italy was found to have violated Article 3 ECHR by expelling asylum seekers to Libya, a country which is not party to the Geneva Convention on refugees and does not offer sufficient guarantees for the protection of fundamental freedoms. The Italian authorities have expelled the applicants without considering their personal conditions. The applicants were denied contact with lawyers and were not allowed to apply for asylum. Furthermore, they had no remedy at their disposal to stay the order of expulsion. Amnesty International letter to JFS Commissioner Franco Frattini, dated 21 March 2005 (B456).

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in the 2006 Human Rights Watch report Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees.51 The Saadi case and the cases on expulsions of immigrants to Libya represent a starting point for a new perception of the ECHR’s instruments in Italian legal culture. For the first time, claims were not simply lodged as a further stage of proceedings or in order to obtain individual monetary compensation. Instead, they were submitted as a step within a broader mobilisation for changing legislation and practices on matters where the Italian legal and political system fails to fully address rights protection. For this reason – as we have seen – NGOs, lawyers engaged in protecting human rights, Italian politicians and international organisations interceded. The impact of these two judgments on Italian policy towards immigration is still weak. While the Saadi case was pending, the Minister of the Interior signed a decree of expulsion for Cherif Foued Ben Fitouri, who was deported to Tunisia on January 4, 2007, where he was charged with terrorist crimes. After the Saadi ruling, the ECtHR informed the Italian government that it would decide some similar cases pending against Italy before the Court in the same way.52 So, in a letter to the Italian government dated June 2, 2008, the European Court reiterated the obligation to suspend the expulsion of another Tunisian, Sami Ben Khemais, until it had had time to examine his claim. The letter was intended to halt execution of the decree of expulsion of Khemais, a Tunisian convicted for terrorist crimes by Italian judges and Tunisian military courts. The decree was signed by the Minister of the Interior on May 31, despite a request in 2007 by the ECtHR to suspend the expulsion. In spite of the letter, it seems that Mr. Khemais was taken to Fiumicino airport on June 3, and flown to Tunisia.53 Regarding the mass expulsions to Libya, in spite of the ECtHR interim measures suspending expulsion, on May 16, 2005 a press release from a press agency (ANSA) reported that two days earlier, 150 immigrants had been expelled to Libya. The Government denied this, but some journalists, politicians and NGOs proceeded to denounce several expulsions.54 Debates on expulsion and on conditions in First Aid and Reception Centres continued during the course of the year. On October 4, 2007 seven Parliamentarians

51 52

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Volume 18, no. 5(E), September 2006. O. v. Italy (no. 37257/06); N.S. v. Italy (no. 37201/06); M.B.S. v. Italy (no. 38128/06); C.B.Z. v. Italy (no. 44006/06); S. v. Italy (no. 37336/06); B. v. Italy (no. 46792/06). See the letter to the Italian government sent by the Human Rights Watch on June 9, 2008, available at http://hrw.org/italian/docs/2008/06/09/italy19081.htm. See the report of one of the most engaged Italian Parliamentarians, Tana de Zulueta, on her web site http://www.tanadezulueta.it < Speciale Lampedusa < Estate 2005.

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from the communist party submitted a written question to the Ministry of the Interior and Foreign Affairs, requesting information about the nature and content of confidential agreements between Italy and Libya in matters of expulsion. The question was still pending when the government changed in January 2008. Demands by Italian citizens to enhance security measures, in conjunction with the overwhelming victory of the right wing in the general election on June 2, 2008, have resulted in more restrictive immigration legislation on grounds of security and public order. Reports on crime and illegal immigration presented by the Minister of the Interior, as well as the willingness of the EU Parliament and Council to define in a directive common standards and procedures for returning illegally present third-country nationals seems to justify – in the eyes of Italian citizens – a defensive attitude on the part of the authorities toward immigrants and a strong policy against illegal immigration. In the so-called ‘security package’ [pacchetto sicurezza] approved by the Government on May 21, 2008, legislative measures clamped down on illegal immigrants and increased the number of cases of expulsion by court order.55 In presenting the package to Senators, the Ministry of the Interior announced his readiness to create a First Aid and Reception Centre in every region, in order to rationalise the system and improve conditions for immigrants housed therein.56 While it is too early to speak about an evolution, let alone a revolution, in the Italian perception of the Convention system, the mass expulsions to Libya and the Saadi case nonetheless represent a kind of step forward in ECtHR jurisprudence regarding Italy. For the first time, Italy has been ordered to comply with ECtHR jurisprudence regarding immigrants.

5. Conclusions and Important Findings Until the middle of first decade of 2000, there were no relevant ECtHR judgments relating to minorities and vulnerable groups in Italy. But the Saadi case and the case of mass expulsions to Libya appear to mark a starting point for strategic litigation aimed at challenging policies and legislation. In conjunction, academics and scholars seem to be paying more attention to substantial issues relating to the ECHR than to procedural ones.

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Said provision is in law decree no. 92/2008. See ‘Maroni: subito un cpt in ogni regione’, La Stampa, 22 May 2008.

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The Italian State’s delay in considering the substantial issues related to the ECHR is due to several factors. From a legal point of view, Italy faced the problem of determining the ECHR’s place in the internal system and hierarchy of legal norms. After decades of ambiguity, in November 2007 the Constitutional Court brought an end to it and clarified the relationship between the ECHR and national norms. Moreover, the quite high level of protection of human rights in the national system is most likely another reason for the absence of Strasbourg Court judgments regarding vulnerable groups. Research for this study confirms a lack of attentiveness to European human rights norms, which emerges from: a) the inactivity of the professional association of barristers and judges in using the ECHR system, b) an insufficient activity on the part of Italian organs both in Strasbourg and in Italy, such as the Permanent Italian Representation in the Council of Europe, the Italian delegation in the Parliamentary Assembly of the Council of Europe, and – in spite of the Azzolini law – the Direzione generale del contenzioso e dei diritti umani, and c) the lack of translation of judgments into Italian. The fact that lawyers and legal practitioners are not familiar with the ECHR system was confirmed by our interview with the most important law office engaged in human rights defence, which brought the case of mass expulsions from Lampedusa to Strasbourg. Even in the Italian capital of Rome, lawyers do not use ECHR instruments and judges do not quote ECtHR case law in their decisions. NGOs and private organisations have only limited involvement in helping individuals to appeal in Strasbourg. Apart from the Unione forense per la tutela dei diritti umani and the mobilisation of international NGOs and politicians in the Saadi case and in the cases of mass expulsion to Libya, claims before the ECtHR are normally not taken up by any organisations or associations. NGOs such as Italian Amnesty International focus their activities on issues involving mass violations of rights, usually in non-European countries. In any case, as we have seen, an evolution in awareness of ECHR rights has been evident in recent years, thanks also to the most recent judgments by the Constitutional Court and the Court of Cassation. A pattern of strategic litigation on behalf of marginalised individuals and minorities appears to be emerging. NGOs, politicians and further international organisations have become important players in challenging state legislation and practice when an infringement of fundamental rights is alleged. Yet it is too early to affirm the existence of this evolution with certainty. Above all, it should not be taken for granted that the ECtHR’s decisions on expulsions and extraditions constitute a challenge to Italian legislation. In fact, these are issues that are closely related to matters of security and public order. The right-wing victory in the

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general elections in April 2008 was crucial to producing more restrictive legislation on asylum, immigration and security, amid protests by the opposition and other institutional actors57 decrying the violation of egalitarian principles.58 Nonetheless, the attitude of some politicians and of the highest courts in the public sphere, and research projects and academic monographs in the academic sphere, as well as some legislative initiatives (like that culminating in the Azzolini law) suggest improved knowledge and consideration of the ECHR. Such knowledge is not only reflected with regard to traditional issues such as length of proceedings, fair trial and expropriations, but also more broadly with regard to the Convention system. The Saadi case and appeals against expulsions to Libya confirmed this renewed interaction between the Italian legal and political system and the ECHR. Still, much remains to be done in this regard at the institutional and societal level, i.e. among ordinary judges and lawyers, as well as in terms of public opinion. It remains to be seen whether the recent immigrant cases brought against Italy signal a new era in the relationship between the ECHR and the national system, and a new perception on the part of Italian agents regarding possible judicial remedies brought by the ECHR. What is certain is that such cases seeking justice on behalf of marginalised individuals and minorities represent a turning point in using the ECHR to redress issues other than the administration of justice or the property rights.

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Above all, the UNHCR: Italia: preoccupazioni per l’impatto sull’asilo di alcune misure contenute nel “pacchetto sicurezza”, press release of 23 May 2008; Il “pacchetto sicurezza” rischia di minacciare le garanzie fondamentali in materia di procedure, 21 May 2008. As for example in the case of the fingerprinting of Roma people (see the press release from the Privacy Authority dated June 26, 2008). Another controversial issue is the introduction of the crime of illegal immigration. Since the beginning of the year 2008, newspapers have dealt daily with these questions. Scholars have also intervened. See for example the following articles: V. Onida, ‘La carcerazione arma a doppio taglio’, Il Sole 24 Ore, 13 May 2008; T.E. Frosini, ‘La Costituzione non vieta il reato di clandestinità’, Libero, 15 May 2008; V. Onida, L. Manconi, ‘Clandestinità, l’impossibile reato’, Manifesto, 18 May 2008; N. Mancino, ‘Sicurezza, no a misure in contrasto con l’UE’, Mattino, 19 May 2008; L. Ricolfi, ‘Pregiudizi positivi’, Stampa, 21 May 2007; G. Sabbatucci, ‘Sinistra, sicurezza e quei nodi da sciogliere’, Messaggero, 21 May 2007; G. Sabbatucci, ‘Se la sinistra riformista raccoglie la sfida della sicurezza’, Messaggero, 29 May 2007; G. Amato, ‘Facciamo come Giuliani’, Corriere della Sera, 30 August, 2007; I. Cipolletta, ‘La tolleranza? Porta più insicurezza che integrazione’, Il Sole 24 Ore, 13 September 2007; S. Rodotà, ‘Il buio dei diritti’, Repubblica, 24 September 2007; M. Ainis, ‘Un rumeno non è tutti i rumeni’, Stampa, 4 November, 2007; G. Zagrebelsky, ‘Lo straniero che bussa alle porte dell’Occidente’, Repubblica, 13 November, 2007; A. Celotto, ‘Quel razzismo strisciante’, Unità, 5 November 2007.

Chapter Eight Protecting Marginalised Individuals and Minorities in the ECtHR: Litigation and Jurisprudence in Turkey Dilek Kurban* 1. Introduction Turkey is a founding member of the Council of Europe, having become a member in 1949.1 It ratified the European Convention on Human Rights (hereafter, ECHR or Convention) and Protocol no. 1 in 1954.2 Over time, Turkey also ratified Protocols nos. 6 and 13 but has yet to ratify Protocols nos. 4, 7 and 12. Turkey is also a party to the principal UN3 and Council of Europe4 human rights conventions. Turkey’s foreign policy vis-à-vis the ratification of treaties is closely related to its domestic policy on minorities. With the exception of non-Muslims who have been granted minority status under the 1923 Treaty of Lausanne, the Turkish state refuses to recognise any other group as minorities. Accordingly, it ratifies human rights conventions that contain provisions relating to minorities with reservations on such provisions.5 When it * I would like to thank my colleagues and research partners Haldun Gülalp and Ozan Erözden from Yildiz Technical University, Istanbul, for their invaluable comments on earlier drafts of this chapter. I am grateful to Elif Kalaycioğlu for her excellent research assistance. 1 Turkey has ratified the statute of the Council of Europe on 12 December 1949 through law no. 5456, which put into effect Turkey’s retrospective membership in the organisation as of 8 August 1949. 2 Law no. 6366, 10 March 1954. 3 The major UN human rights treaties Turkey has ratified are: the International Covenant on Civil and Political Rights (hereafter, ICCPR), the International Covenant on Economic, Social and Cultural Rights (hereafter, ICESCR), the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Elimination of All Forms of Racial Discrimination. 4 In addition to the European Convention on Human Rights (hereafter, Convention), Turkey is a party to the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the revised European Social Charter. 5 This is the case for Article 27 of the ICCPR; Articles 17, 29 and 30 of the Convention on the Rights of the Child; Article 13(3) and (4) of the ICESCR; as well as various OSCE

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comes to conventions that are specifically on minorities, however, Turkey does not sign the treaty altogether, as in the case of the Council of Europe’s Framework Convention for the Protection of National Minorities. For a long time, the status of international conventions in the domestic legal order has been a matter of contention among legal scholars in Turkey.6 Prior to its amendment on 22 May 2004, Article 90 of the Turkish Constitution read: ‘International agreements duly put into effect bear the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional.’7 While there have been instances where courts stressed the supremacy of the Convention over domestic laws, and even the constitution,8 there was no uniform judicial view or practice with regard to which body of law should prevail in case of a conflict between international treaties and national laws.9 This debate was resolved in 2004 in favour of the monist view, with the addition of a clause to Article 90.10 Pursuant to this amendment which gives direct effect to human rights treaties to which Turkey is a party, the courts of general jurisdiction are now required to enforce the supremacy of the Convention over domestic laws. Yet, while the Court of Cassation and the Council of State referred in some of their judgments to

instruments on minorities. For more on Turkey’s minority policy, see D. Kurban, ‘Confronting equality: The need for constitutional protection of minorities on Turkey’s path to the European Union’, Columbia Human Rights Law Review 35 (2003), 151–223, 169. 6 See F. Sağlam, ‘Avrupa İnsan Haklari Mahkemesi’nin Türkiye’de kapatilan partilere iliŞkin kararlarinin partiler hukukuna etkisi’, Anayasa Yargisi 16 (1999), 189–216; Z. Arslan, ‘Avrupa İnsan Haklari Sözleşmesi ve Türk anayasa yargisi: Uyum sorunu ve öneriler’, Anayasa Yargisi 17 (2000), 274. 7 Turkish Constitution, 1982. 8 See Council of State, 5th Chamber (E. 1986/1723, K. 1991/933), 22 May 1991. The ruling declares that states are under an obligation to extend to their citizens the rights and liberties guaranteed under international conventions that they have ratified and to undertake the necessary arrangements in their domestic legal systems towards that end. It also states in dictum that Article 90 of the Constitution requires the execution of international conventions duly put into effect even where they are in conflict with the Constitution. 9 For a brief discussion of the three different approaches to the implications of the phrase ‘having the force of law’ for the resolution of a potential conflict between international conventions and domestic law, see T. Tuğcu, ‘Opening address on the occasion of the new judicial year of the European Court of Human Rights’, Strasbourg, 20 January 2006, 4. 10 The additional clause reads: ‘In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.’ Türkiye Cumhuriyeti Anayasasinin Bazi Maddelerinin Değiştirilmesi Hakkinda Kanun [Law on the Amendment of Various Provisions of the Constitution of the Turkish Republic], no. 5170, 7 May 2004.

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specific provisions of the Convention,11 it is not yet possible to speak of a uniform, consistent and principled judicial approach. Furthermore, the Convention’s supremacy over domestic laws does not extend to the constitution. Pursuant to the jurisprudential tradition in Turkey, the Constitutional Court is not formally bound by the Convention. Instead, it attributes to the judgments of the European Court of Human Rights (hereafter, ECtHR or the Court) a persuasive authority of interpretation. That the Constitutional Court does not attribute to the Convention the quality of a supra-constitutional norm12 would not be problematic had there not been significant points of tension between the constitution and the Constitutional Court’s case law on the one hand, and the Convention and the ECtHR’s jurisprudence on the other. Notwithstanding the recent constitutional reforms intended to align the national and international law, the overall spirit of the constitution that privileges state interests over individual rights and liberties as well as the restrictive interpretation it receives from national courts fall far short of the Convention standards. The harmonisation of Turkey’s legal framework with the Convention will not be possible unless an entirely new constitution is adopted which contains a civic notion of citizenship and a rights-based approach to the state-citizen relationship to replace the current constitution, which was drafted in 1982 by the military junta that staged a bloody coup in 1980. The 1982 Constitution contains general provisions on human rights. Article 2 enumerates respect for human rights as a fundamental characteristic of the Republic. Article 5 lists the removal of obstacles restricting fundamental rights and liberties as a ‘fundamental aim and duty of the state.’ Article 10 protects equality.13 In addition, there are specific provisions extending protection to rights covered under Articles 8-11 of the Convention. The scope of these

11

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Tuğcu, ‘Opening address’, 5, citing the following decisions: Court of Cassation, Civil Plenary (E: 2005/9-320, K: 2005/355), 25 May 2005; Court of Cassation, 9th Penal Chamber (E: 2004/3780, K: 2004/3879), 13 July 2004; Court of Cassation, Penal Plenary (E: 2005/7-24, K: 2005/56), 24 May 2005; Council of State, 13th Chamber (E: 2005/588, K: 2005/692), 08 February 2005; Council of State, 5th Chamber (E: 2004/291, K: 2004/3370), 29 September 2004. Arslan, ‘Avrupa İnsan Haklari’, 274. This conclusion was supported by the president of the Turkish Constitutional Court herself, who stated that, as of January 2006, the Constitutional Court has merely cited four ECtHR judgments, one in a 1999 judgment concerning a regulatory taking and three in a 2003 judgment on expropriation. Tuğcu, ‘Opening address’, 6. Art. 10(1): ‘[a]ll individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations’. Article 10(4) requires administrative institutions and authorities to comply with this principle.

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provisions was expanded considerably through the constitutional reforms of 2001.14 Right to personal liberty and security; privacy of individual life; inviolability of the domicile; freedom of communication; freedom of religion and conscience; freedom of thought and opinion; freedom of expression and dissemination of thought; freedom of press; freedom of association; freedom to hold meetings and demonstration marches; and right to property are protected under the constitution. In order to bring the constitution in line with the ECtHR case law, the 2001 reforms also narrowed the scope of restrictions on human rights.15 The introduction of the principle of proportionality brought the constitution in line with the ECtHR’s case law and the Turkish Constitutional Court’s post-1991 jurisprudence.16 The reforms replaced the general restrictions embodied in Article 13, which had allowed the categorical limitation of rights and liberties on the basis of a standard list of enumerated grounds,17 with a ‘differentiated and gradual restriction system’18 based on right-specific restrictions enumerated in corresponding provisions.19 However, notwithstanding the reforms, the letter and spirit of the constitution remains quite restrictive. Reminiscent of the prevailing sentiment during the founding years of the republic in 1920s, the fear of Kurdish separatism

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Türkiye Cumhuriyeti Anayasasinin Bazi Maddelerinin Değiştirilmesi Hakkinda Kanun [Law on the Amendment of Various Provisions of the Constitution of the Turkish Republic], no. 4709, 3 October 2001 (hereafter, Law no. 4709). İ. Giritli, ‘2001 anayasa değişikliklerinin temel hak ve özgürlüklere yansimasi’, Anayasa Yargisi 19 (2002), 88. Law no. 4709, Art. 2. In its post-1991 case law, the Turkish Constitutional Court has ruled that the restrictions brought upon fundamental rights should ‘not exceed reasonable criteria’. Giritli, ‘2001 anayasa değişikliklerinin’, 98. The Court required that such restrictions conform with the principle of proportionality, which it had defined in a 1991 judgment as follows: ‘That the means resorted for the restriction or the prevention of the exercise of fundamental rights and liberties are sufficient and necessary to realise the aim, and that the means and the end are proportional to each other.’ Constitutional Court (E. 1990/25, K. 1991/1), 10 January 1991. The former text of Article 13 allowed restriction on the grounds, inter alia, of ‘safeguarding the indivisible integrity of the state with its territory and nation, national sovereignty, the Republic, national security, public order, general peace, the public interest, public morals and public health’. O. Erözden et al., National Report: Turkey (Ankara: Union of Turkish Bar Associations, 2004), p. 8. For a critique of the amendments for unnecessarily introducing restriction grounds for various rights and freedoms, such as the freedom of thought and opinion and the right to fair trial, which are guaranteed absolute protection under the Convention, see Erözden et al., National Report: Turkey, p. 9.

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and political Islam as potential threats to the nation state continues to shape the ideological underpinnings of constitutional philosophy in Turkey. The object of protection against these imaginary enemies has not been the democratic order, but the state itself. So much so that, ‘in Turkey it is easy to swap the perception of ‘militant democracy’ for the perception of ‘militant state’.20 Indeed, the principal preoccupation of the constitution is to protect the state vis-à-vis individuals. It subjugates the exercise of rights and freedoms to a doctrinal hierarchy, whereby the principles of laicism21 and territorial unity hang like Democles’ sword over the enjoyment of human rights. This demarcation is visible throughout the letter and spirit of the constitution and is immediately observed in the preamble, which prohibits activities contrary to the principles of territorial unity and laicism.22 The over-inclusive reading of these principles by the Turkish judiciary in the past has resulted in the dissolution of political parties and associations, and the prosecution of dissidents, both among the Muslim majority and among marginalised individuals and minorities.23

2. The Study of the Convention: State of the Art in Turkey In 1999, Turkey was officially declared as a candidate for membership to the European Union. Among the political criteria that the EU requires countries seeking accession to fulfil is the protection of minorities, a conditionality which has obliged Turkey to undertake a series of reforms. This led the long forgotten concept of minority rights to re-enter the public debate in the country. As a result, an ample amount of academic literature has emerged examining specific historical periods when marginalised individuals and minorities – particularly

20 21

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Ibid., p. 2. Unlike the Anglo-Saxon concept of secularism, which suggests a strict separation of state and church, the Francophone concept of laicism refers to the state’s control of religion and thus its involvement in religious affairs. Turkish constitution, preamble, para. 5. The Preamble conspicuously fails to pronounce the word ‘democracy’ until the very end where it depicts the Constitution as a trust to ‘the Turkish nation to the patriotism and nationalism of its democracy-loving sons and daughters’. Ibid., para. 8. On territorial integrity, see ECtHR, Özgür Gündem v. Turkey (no. 23144/93), 16 March 2000; ECtHR, Dicle v. Turkey (no. 46733/99), 10 November 2004; ECtHR, United Communist Party of Turkey and Others v. Turkey (no. 133/1996/752/951), 30 January 1998; ECtHR, Socialist Party and Others v. Turkey (no. 20/1997/804/1007), 25 May 1998. On laicism, see ECtHR, Refah Partisi (The Welfare Party) and Others v. Turkey (no. 41340/98), 13 February 2003; ECtHR, Leyla Şahin v. Turkey (no. 44774/98), 10 November 2005.

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non-Muslims – were persecuted, discriminated and expelled in Turkey.24 Studies have also analysed the impact of the EU accession on Turkey’s minority regime,25 and more specifically the content and implementation of domestic laws implicating marginalised individuals and minorities.26 The increased interest in the relationship between EU accession conditionality and minority rights is also reflected in the monitoring reports of various national and international human rights organisations evaluating the progress achieved in Turkey.27 The number of academic studies28 and policy reports29 on the impact of the EU process on the protection of civil and political rights has also increased. Inter-governmental organisations such as the European

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On the 1923 population exchange of Muslims and Rums between Greece and Turkey, see M. A. Gökaçti, Nüfus Mübadelesi: Kayip bir kuşağin hikayesi (İstanbul: İletişim, 2005); on the expulsion of Jews from Eastern Thrace, see R. Bali, Devletin Yahudileri ve ‘öteki’ Yahudi (İstanbul: İletişim, 2004), A. Aktar, Varlik Vergisi ve ‘Türkleştirme’ politikalari (İstanbul: İletişim, 2000); on the mob campaign against Rums, Armenians and Jews in Istanbul 6–7 September 1955, see D. Güven, Cumhuriyet dönemi azinlik stratejileri ve politikalari bağlaminda 6–7 Eylül Olaylari (İstanbul: İletişim, 2006), A.T. Kuyucu, ‘Ethno-religious “unmixing” of “Turkey”: 6–7 September as a case in Turkish nationalism’, Nations and Nationalism 11/3 (2005), 361; on the levy of a discriminatory wealth tax on non-Muslims in 1942, see R. Bali, Bir Türkleştirme serüveni: 1923–1945 (İstanbul: İletişim, 2005), Aktar, Varlik Vergisi; on the deportation of Rums in 1964, see H. Demir and R. Akar, İstanbul’un son sürgünleri (İstanbul: İletişim, 2004); on the confiscation of properties belonging to nonMuslims, see B. Oran, Türkiye’de azinliklar: Kavramlar-teori-Lozan-İç mevzuat-uygulama (İstanbul: İletişim, 2005), D. Kurban, ‘Unravelling a trade-off: Reconciling minority rights and full citizenship in Turkey’, European Yearbook of Minority Issues 4 (2006), 341; on the nationalisation of the economy through the transfer of wealth from non-Muslims to Muslims, see A. Aktar, Türk milliyetçiliği, Gayrimüslimler ve ekonomik dönüşüm (İstanbul: İletişim, 2006). A. İçduygu and B. A. Soner, ‘Turkish minority rights regime: Between difference and equality’, Middle Eastern Studies 42/3 (2006), 447. Kurban, ‘Unravelling a trade-off ’; Kurban, ‘Confronting equality’; Oran, Türkiye’de azinliklar. International Helsinki Federation for Human Rights, Turkey: A minority policy of systematic negation (Vienna: IHF Publications, 2006); N. Kaya and C. Baldwin, Minorities in Turkey: Submission to the European Union and the Government of Turkey (London: Minority Rights Group International, 2004). P. Zalewski, Sticks, carrots and great expectations: Human rights conditionality and Turkey’s path towards membership of the European Union (Warsaw: Center for International Relations, 2004); Ş. Kardaş, ‘Human rights and democracy promotion: The case of Turkey-EU relations’, Turkish Journal of International Relations 1/ 3 (2002), 136. See Human Rights Watch, World report/Turkey (New York: Human Rights Watch, 2006); Amnesty International, 2006 report/Turkey (London: Amnesty International, 2006).

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Commission,30 the European Parliament and the OSCE31 released reports and resolutions on Turkey’s performance in fulfilling EU conditionality. One common theme in much of the abovementioned literature is the resistance of the bureaucratic administration to the implementation of reform laws. The tension between appointed and elected officials over bureaucrats’ failure to duly implement the laws adopted by the legislature is perceived as an indicator of the democratic deficit in the political regime in Turkey. The general conclusion is that while Turkey has come a long way in comparative terms towards consolidating democracy and protecting human rights, there is still a long way to go both in terms of enacting new laws and, particularly, implementing them. The EU and the ECtHR play an interdependent role in facilitating the harmonisation of Turkey’s national law with European norms. This is most evident in the emphasis the European Commission places on Turkey’s execution of the ECtHR judgments.32 Another indicator is reference made by the Turkish parliament in the preambles of reform laws to the fulfilment of the EU’s accession conditionality and the execution of ECtHR’s judgments. And yet, the literatures on the impact of the EU and the ECtHR on human rights reforms in Turkey have so far developed independently of each other. There is ample domestic academic literature in Turkey on the protection of human rights under the Convention33 and on the ECtHR jurisprudence.34 There are also studies focusing on the protection of selected rights and liberties under the Human Rights Convention, such as freedom of expression, freedom 30 31

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34

See European Commission regular reports on Turkey’s progress towards accession. For a review of the implications of the new penal code on freedom of press in Turkey, see M. Haraszti, Review of the draft Turkish Penal Code: Freedom of media concerns (Vienna: OSCE, 2005). The European Commission gives considerable space in its reports to the progress Turkey has made in executing the ECtHR judgments, identifies outstanding issues and makes recommendations on the measures that need to be adopted. The Commission explicitly refers to the resolutions of the Council of Europe’s Committee of Ministers and the judgments of the ECtHR. See European Commission, Regular report on Turkey’s progress towards accession (Brussels: European Union, 2005), pp. 19–20. See Ş. Gözübüyük and F. Gölcüklü, Avrupa İnsan Haklari Sözleşmesi ve uygulamasi: Avrupa İnsan Haklari Mahkemesi inceleme ve yargilama yöntemi (Ankara: Turhan Kitabevi, 2005). G. Duterte, Avrupa İnsan Haklari Mahkemesi içtihatlarindan alintilar (Strasbourg/Brüksel: Avrupa Konseyi/Avrupa Komisyonu, 2005); O. Doğru (ed.), İnsan haklari kararlar derlemesi, cilt 3 (İstanbul: İstanbul Barosu Yayinlari, 2000); O. Doğru (ed.), İnsan Haklari Avrupa Mahkemesi kararlar rehberi (1960–1994) (İstanbul: İstanbul Barosu Yayinlari, 1999).

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of association and religious freedom.35 More specifically, the relationship between the Convention and the Turkish legal order36 and the ECtHR’s case law on Turkey has been the object of academic research, particularly in the legal literature.37 Some studies are limited to the listing and brief summarisation of judgments;38 others offer analyses of decisions and their execution.39 Generally, the overall purpose of the literature on the ECtHR’s case law on Turkey is to provide a practitioner’s guide for lawyers, judges and prosecutors who do not speak English and/or do not follow the jurisprudence of the Court. There are also studies assessing the extent to which the reforms have achieved the alignment of national law with European standards, and pointing out the outstanding issues to be tackled by lawmakers.40 The overall consensus is that notwithstanding the reforms undertaken in recent years, the domestic legal order still falls far short of European standards. Some ECtHR judgments regarding Turkey have been widely commented on internationally. The Court’s controversial judgments in cases of Refah Partisi41 and Leyla Şahin,42 where the ECtHR deferred to the Constitutional Court’s

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38 39 40

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See G. Dinç, Avrupa İnsan Haklari Sözleşmesi’ne göre inanç, anlatim ve örgütlenme özgürlükleri (İzmir: İzmir Barosu Yayinlari, 2005); B. B. Özipek (ed.), Teorik ve pratik boyutlariyla ifade hürriyeti (Ankara: Liberal Düşünce Topluluğu, 2003); T. A. Beydoğan, Avrupa İnsan Haklari Sözleşmesi işiğinda Türk hukukunda siyasî ifade hürriyeti (Ankara: Liberal Düşünce Topluluğu, 2003). D. Tezcan et al., Avrupa İnsan Haklari Sözleşmesi işiğinda Türkiye’nin insan haklari sorunu (Ankara: Seçkin Yayincilik, 2004); B. Çağlar, İnsan Haklari Avrupa Sözleşmesi hukukunda Türkiye (Ankara: Türkiye Bilimler Akademisi, 2002); Arslan, ‘Avrupa İnsan Haklari’. N. Çavuşoğlu, İnsan Haklari Avrupa Mahkemesi: Kararlarin uygulanmasi; Türkiye kararlari: 1995-Haziran 2003, tazminat tutarlari (İstanbul: Su Yayinlari, 2003); H. Karakuş, Avrupa İnsan Haklari Mahkemesi kararlari ve karşioylarinda Türkiye (İstanbul: İstanbul Barosu Yayinlari, 2001); O. Doğru and A. Nalbant, İnsan Haklari Avrupa Mahkemesi ve Türkiye karar özetleri: 1995–2000 (İstanbul: İstanbul Barosu Yayinlari, 2001). See Doğru and Nalbant, İnsan Haklari; Doğru (ed.) İnsan Haklari. See Çağlar, İnsan Haklari; Arslan, ‘Avrupa İnsan Haklari’; Çavuşoğlu, İnsan Haklari. F. Sağlam, ‘Siyasi Partiler Kanunu’nda uluslararasi standartlara uygunluk sağlamak için yapilmasi gereken değişiklikler’, Anayasa Yargisi 17 (2000), 233; Ş. Ünal, ‘Avrupa İnsan Haklari Mahkemesi kararlarinin Türk iç hukukuna etkileri’, Anayasa Yargisi 17 (2000), 63; Sağlam, ‘Avrupa İnsan Haklari’. C. Rumford, ‘Failing the EU test? Turkey’s national programme, EU candidature and the complexities of democratic reform’, Mediterranean Politics 7/1 (2002), 51; K. Boyle, ‘Human rights, religion and democracy: The Refah Party case’, Essex Human Rights Review 1/1 (2004), 1; C. Moe, ‘Strasbourg’s construction of Islam: A critique of the Refah judgment’, paper presented at the conference titled The Turkish Welfare Party case: Implications for human rights in Europe, Central European University, Budapest, 2–3 June 2002. Case analysis, D.C. Decker and M. Lloydd, ‘Leyla Şahin v. Turkey’, European Human Rights Law Review 6 (2004), 672.

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subjugation of rights and liberties based on Turkey’s idiosyncratic principle of laicism, faced fierce criticism from European scholars. One common point of criticism is that the ECtHR deviated from and conflicted with its earlier jurisprudence on party dissolutions in Turkey. In contrast, domestic scholars have been conspicuously silent on the issue. The few studies that mention or analyse the Refah judgment display an implicit deference to Strasbourg without discussing the compatibility of these judgments with European human rights standards.43 Academic literature on the impact of the ECtHR case law on national law and practice is very limited. The Court’s judgment in İçyer is a notable exception. The decision has been criticised by both academics and human rights organizations for being premature, unjust and political. The ECtHR has been held responsible for the deteriorating implementation of the Compensation Law adopted in 2004, which it had found to be an adequate domestic remedy for the restitution of the internally displaced persons (IDPs). Seemingly motivated by the desire to ease its workload,44 the Court has been charged with giving a premature judgment solely on the basis of selected sample decisions presented by the government while leaving IDPs at the mercy of the national authorities.45 Lacking in the literature on the ECtHR’s case law on Turkey is an analysis of the identities, strategies, purposes and coalitions of applicants.46 The lack of research on actors causes the recent ethnic and religious diversification in the identity of individuals petitioning the ECtHR going unnoticed by scholars. A further gap in the literature is an in depth analysis of the impact of the ECtHR

43

See Y.Ş. Hakyemez and B. Akgün, ‘Limitations on the freedom of political parties in Turkey and the jurisdiction of the European Court of Human Rights’, Mediterranean Politics 7/ 2 (2002), 54. 44 The Court actually does refer to the 1,500 pending IDP claims and its heavy case load. 45 D. Kurban et al., Coming to terms with forced migration: Post-displacement restitution of citizenship rights in Turkey (İstanbul: TESEV Publications, 2007); Toplum ve Hukuk Araştirmalar Vakfi, The problem of Turkey’s displaced persons: An action plan for their return and compensation (İstanbul: TOHAV, 2006); Human Rights Watch, Unjust, restrictive and inconsistent: The impact of Turkey’s compensation law with respect to internally displaced people (New York: Human Rights Watch, 2006); T. Aker et al., The problem of internal displacement in Turkey: Assessment and policy proposals (İstanbul: TESEV Publications, 2005). 46 The literature on the impact of the EU accession conditionality on the protection of human rights in Turkey similarly lacks studies on the role played in this process by the policy and litigation efforts of minority organisations. Instead, pro-EU forces among the civil society are considered to have been positively influential in the domestic reform process. See P. Kubicek, ‘The European Union and democratisation ‘from below’ in Turkey’, paper presented for the European Union Studies Association, Austin, Texas, 31 March-2 April 2005.

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case law on the domestic protection of human rights and a critical analysis of lack of implementation.

3. Litigation in the ECtHR Regarding Claims Raising Articles 8-11/14 ECHR as well as Claims Involving Marginalised Individuals and Minorities Initially, Turkey’s ratification of the Convention did not arouse significant interest among minority groups and rights advocates. During the first three decades when the Convention was in force, the Court’s case law on Turkey consisted mainly of petitions lodged against the latter’s military intervention and subsequent occupation of Cyprus. There were also cases brought by a number of European states against the military junta that ruled Turkey from 1980 to 1983. Individuals started to take recourse in Strasbourg after 1987, when three major developments took place: The government accepted the right of individuals to lodge petitions in the ECtHR, it applied for membership to the EU, and it declared a state of emergency in the eastern and south eastern parts of the country. Turkey’s acceptance of the individual petition mechanism has been seen by many as a strategic move aimed at facilitating its EU membership. The human rights violations committed by security forces during the state of emergency, which formally lasted until 2002, led the number of petitions filed in Strasbourg to increase rapidly. The Kurdish question featured predominantly in the ECtHR’s jurisprudence. The majority of applications stemmed from atrocities committed by security forces in the regions where a state of emergency had been imposed. Others concerned the dissolution of political parties and the prosecution of individuals advocating a democratic solution to the Kurdish question. The constitutional principle of ‘territorial unity’ provided national courts with doctrinal justification for the infringement of fundamental rights and liberties. Another constitutional principle that played a similar key role has been that of ‘laicism.’ Restrictively interpreting this principle in regard to public expressions of Muslim religiosity, the Turkish Constitutional Court dissolved various political parties and upheld a headscarf ban in universities. These cases were brought to Strasbourg on grounds, among others, of Articles 9 and 11 of the Convention. The activism that Kurdish lawyers displayed in petitioning the ECtHR in the early 1990s played a critical role in the high number of cases filed against Turkey. The principal motive in taking recourse in Strasbourg was the de facto inaccessibility of national remedies under the state of emergency. During the latter, courts in eastern and south eastern Turkey were not willing to exercise jurisdiction over the allegations of human rights abuses committed by security forces in their fight against the Kurdistan Workers’ Party (PKK). The result

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was the precedent-setting case of Akdıvar, where the ECtHR acknowledged that domestic remedies in east and southeast Turkey were insufficient and inefficient. It took the unprecedented step of exempting the applications originating from this region from the requirement of having exhausted domestic remedies.47 Consequently, thousands of petitions were filed by Kurds under Articles 3, 5, 6, 8 of the Convention and Article 1 of Protocol no. 1. The EU accession process has been instrumental not only in strengthening the impact of the ECtHR jurisprudence on the protection of human rights in Turkey, but also in encouraging marginalised individuals and minorities other than the Kurds to litigate in Strasbourg. This has been the case for non-Muslim minorities, as well as the non-Sunni Alevi minority among the Muslim majority. These marginalised religious groups principally based their claims on Articles 8, 10, 11 and 14 of the ECHR, as well as Article 1 of Protocol no. 1. This is evident, for example, in the petitions filed by Armenian48 and Greek Orthodox49 religious foundations for the return of or the payment of just compensation for their properties confiscated by the state, where the applicants challenged Turkey’s discriminatory property policies against non-Muslim religious foundations. Petitions by Protestants and Presbyterians raise the issue of recognition of their religion and the granting of license to build and register their churches, while those by Alevis seek the abolishment of compulsory religion classes50 in schools and contest the non-secular and discriminatory aspect of state-religion relationship in Turkey.51 A few cases regarding land expropriation,52 environmental issues,53 paternity dispute54 and gender equality55 are exceptional in that applicants seeking 47 48

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ECtHR, Akdivar and Others v. Turkey (no. 99/1995/605/693), 30 August 1996. ECtHR, Yedikule Surp Pirgiç Ermeni Hastanesi Vakfi v. Turkey (no. 50147/99 and 51207/99), 26 June 2007; ECtHR, Yedikule Surp Pirgiç Ermeni Hastanesi Vakfi v. Turkey (no. 36165/02), 16 December 2008; ECtHR, Samatya Surp Kevork Ermeni Kilisesi, Mektebi ve Mezarliği Vakfi Yönetim Kurulu v. Turkey (no. 1480/03), 16 December 2008. ECtHR, Fener Rum Lisesi Vakfi v. Turkey (no. 34478/97), 9 January 2007; ECtHR, Fener Rum Patrikliği (Ecumenical Patriarchate) v. Turkey (no. 14340/05), 8 July 2008. While religion classes are mandatory for all students in primary and secondary education, non-Muslim students are granted leave in practice. Alevis are not allowed to benefit from this exemption. For a case lodged by an Alevi parent against compulsory religious classes in primary and secondary schools where the ECtHR found a violation of the right to education, see ECtHR, Hasan and Eylem Zengin v. Turkey (no. 1448/04), 9 October 2007. See ECtHR, Aka v. Turkey (no. 107/1997/891/1103), 23 September 1998; ECtHR, Mutlu v. Turkey (no. 8006/02), 20 December 2006. ECtHR, Taşkin and Others v. Turkey (no. 46117/99), 30 March 2005; ECtHR, Öneryildiz v. Turkey (no. 48939/99), 18 June 2002. ECtHR, Tavli v. Turkey (no. 11449/02), 9 November 2006. ECtHR, Ünal Tekeli v. Turkey (no. 29865/96), 16 November 2004.

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individual remedy belonged to the majority and were not necessarily motivated by political considerations in litigating in Strasbourg. The vast majority of cases, on the other hand, were brought by individuals who differ from the majority on the basis of their ethnicity, religion or denomination or by individuals/institutions who expressed dissent against state policies on laicism or the Kurdish question. Of these, most were brought by Kurdish individuals or individuals/institutions advocating their rights. The combination of various factors - the coinciding of Turkey’s acceptance of the right to individual petition with the declaration of a state of emergency in eastern and south eastern regions predominantly populated by the Kurds, the unwillingness of domestic courts to exercise jurisdiction over allegations of human rights abuses committed under this regime, and the ‘Akdıvar exception’ - all resulted in a massive flow of petitions by Kurds. Although the Kurds have been engaged in strategic litigation since the early 1990s, their claims clustered around rights to property, liberty, fair trial and the right to be free from torture and did not necessarily challenge Turkey’s discriminatory policies towards marginalised individuals and minorities. It is curious that in litigating in Strasbourg, even when raising claims under Article 14 ECHR, Kurds did not present a self-identity as a ‘minority.’ While they claimed of having been discriminated against in many cases, they based their claims on grounds of ethnic origin, rather than of being member of a national minority. The Kurdish political movement has long resisted the ‘minority’ tag56 for fear of being associated with non-Muslims, the only group granted minority status in Turkey.57 The EU accession process proved to be a turning point for other marginalised individuals and minorities to lodge complaints with the ECtHR. The strengthening of domestic human rights mechanisms and the public debate generated by the democratisation process in Turkey encouraged the hitherto much less vocal groups to adopt the emerging rights discourse. The underlying motive in the cases that they have pursued is to contest Turkey’s discriminatory citizenship policies. Marginalised individuals and minorities such as

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The first public reaction by Kurds to being named as a minority came with the release in October 2004 of the European Commission’s progress report on Turkey’s accession. The EU’s reference to Kurds – and Alevis – as a minority was vehemently condemned on various occasions by Kurdish and Alevi representatives who argued instead that Kurds are a ‘constitutive nation’. European Commission, Regular report on Turkey’s progress towards accession (Brussels: European Union, 2004), pp. 44 and 48. For a discussion of the historical and political reasons behind Kurds, and other ethnic minorities’ reluctance to self-identify as minorities and the discrimination and persecution suffered by non-Muslim minorities, see Kurban, ‘Unravelling a trade-off ’.

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Alevis and non-Muslims seek relief against discrimination in education, and demand effective political participation, religious freedom and the right to education. These cases point to an increasing resort by marginalised individuals and minorities to the ECtHR when their prior domestic political and legal efforts to change discriminatory national laws and practices have failed. As new groups seek political change through litigation, however, the Kurds and the Muslims are losing faith in the reliability of the ECtHR as an external actor in their legal and political struggle in Turkey. The İçyer,58 Refah59 and Şahin60 judgments have cost the Court considerable legitimacy in the eyes of Kurds and Muslims. In İçyer, the ECtHR rejected 1,500 pending petitions filed by the Kurdish displaced on grounds of a new compensation law passed by the Turkish government. In Refah, it upheld the dissolution of a pro-Islamist political party, while in Şahin the Court found the headscarf ban in institutions of higher education to be in line with the Convention. These judgments caused both Kurds and Muslims to express frustration and disillusionment with what they regard to be a politicised court catering to the needs of the Turkish government in its bid for EU accession rather than an impartial institution of justice.

4. ECtHR Jurisprudence in the Cases Under Review Turkey is among the states most litigated against in Strasbourg. With 20,141 applications lodged between 1 November 1998 and 2006, Turkey ranked sixth among the 46 member states.61 In 2006 alone, 2,280 new applications were lodged against Turkey.62 Of the 1,560 judgments that the ECtHR handed down

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For critical reflections of the İçyer judgment in Kurdish media, see H. Kaplan, ‘Pis kokular’, Gündem, 5 October 2006. For critical reflections of the Refah judgment in pro-Islamic media, see ‘Türkiye’ye özgü karar’, Yeni Şafak, 1 August 2001; ‘Yolumuza devam ederiz’, Yeni Şafak, 1 August 2001; C. Çandar, ‘AİHM’nin Refah kararini nasil okumali?’, Yeni Şafak, 1 August 2001; ‘Erdoğan da tepkili’, Zaman, 1 August 2001; E. Başyurt, ‘AİHM’den şüpheli karar’, Zaman, 1 August 2001. For critical reflections of the Şahin judgment in pro-Islamic media, see ‘AİHM ihlali’, Yeni Şafak, 11 November 2005; F. Koru, ‘Kararin anlami’, Yeni Şafak, 11 November 2005; ‘AİHM ihlali’, Yeni Şafak, 11 November 2005; A. Kekeç, ‘AİHM sinifta kaldi!’, Yeni Şafak, 11 November 2005. Turkey followed Russia, Poland, Romania, Italy and France. ECtHR, Registry of the European Court of Human Rights, Survey of activities 2006 (Strasbourg: Council of Europe, 2007), pp. 43–44. Ibid., 40.

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in 2006, the highest number (334) concerned Turkey.63 As of August 2006, in 196 of these the Court ruled against Turkey.64 As of 1 January 2007, 10% (9,000) of the total number of cases (89,900) pending before the ECtHR are those filed against Turkey.65 As of 4 July 2008, the ECtHR issued 143 judgments and 69 settlements in cases concerning the actions of the security forces in eastern and south eastern Turkey.66 It found Turkey to have violated Articles 2, 3, 5, 6, 8 of the Convention and Article 1 of Protocol no. 1 in respect of disappearances, unlawful killings and destruction of property during operations carried out by the security forces, prolonged detention without judicial review, lack of access to a lawyer, torture and ill treatment inflicted during police custody, inability to claim compensation for illegal detention and the lack of effective investigation. In scores of discrimination claims made by Kurds, the Court has never found a violation of Article 14 ECHR.67 This was true even in applications concerning village evictions, where applicants claimed that the government had a systematic displacement policy which targeted the Kurds on the grounds of their ethnicity.68 While the ECtHR reviewed Article 14 claims – and found no violation – in most cases, it declined review in others.69 The Court has never elaborated why it subjects Article 14 claims to such differential treatment. In its overall case law concerning Turkey, the only case where the ECtHR found a violation of Article 14 ECHR concerns gender discrimination.70 During the state of emergency,71 around 1 million civilians, predominantly Kurds, were displaced from their homes and not allowed access to their

63 64

65 66

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69 70 71

Ibid., 3. European Commission, Regular report on Turkey’s progress towards accession (Brussels: European Union, 2006), p. 11. Ibid., 51. Council of Europe, State of execution of cases against Turkey, available at: http://www.coe. int/t/e/human_rights/execution/04_statistics/StatisticsExecutionJudgments_July07. asp#TopOfPage (last updated 4 July 2008). The reluctance to review Article 14 ECHR applications is not limited to Turkey. ECtHR’s jurisprudence on anti-discrimination reveals a general preference, with a few exceptions, to avoid judicial review where possible, and to find no violation in rare cases where it conducts such review. See ECtHR, Akdivar and Others v. Turkey (no. 99/1995/605/693), 30 August 1996; ECtHR, Menteş and Others v. Turkey (no. 23186/94), 28 November 1997; ECtHR, Hasan İlhan v. Turkey (no. 22494/93), 9 November 2004. ECtHR, Orhan v. Turkey (no. 25656/94), 18 June 2002. ECtHR, Ünal Tekeli v. Turkey (no. 29865/96), 16 November 2004. Declared in 1987, the state of emergency regime was originally in force in a few provinces. It was progressively expanded to cover twelve provinces in eastern and south eastern Turkey. It was gradually abolished after 1999 and formally came to a complete end in 2002.

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properties thereafter. According to the Turkish Foreign Ministry, of the nearly 3,000 applications filed as of August 2003,72 1,500 related to allegations of forced eviction and property destruction. Instrumental in the high number of petitions was the ECtHR judgment in Akdıvar and Others, where the Court made an exception to the principle of exhaustion of domestic remedies.73 The Court pointed out that despite the gravity of village destructions and the multitude of claims against security forces, no legal remedy was provided to villagers and the perpetrators were not held accountable. This judgment was followed by many others, where the ECtHR found Turkey to have committed gross human rights violations. However, in more than 30 judgments, it did not address petitioners’ claims regarding the systematic nature of displacement. The ECtHR changed its stand with the Doğan and Others judgment,74 where for the first time it identified a structural problem of displacement in Turkey.75 It stated that ‘effective legal remedy’ requires not only the payment of compensation, but also the identification and punishment of perpetrators of human rights abuses. One month later, Turkey adopted a law to provide compensation to the displaced.76 Only sixteen months after the law started to be implemented at a very slow paste and in a non-uniform manner,77 the ECtHR issued a premature ruling in İçyer v. Turkey, holding that the law constituted an effective remedy. Subsequently, the IDPs were required to exhaust this remedy before they petitioned Strasbourg.78 Thus, the Court found a law which does not compensate emotional pain and suffering to be an effective domestic remedy, though in all earlier similar cases it had itself awarded IDPs compensation for their non-pecuniary losses. The petitions filed against Turkey under Articles 3, 5 and 6 of the Convention were brought predominantly by Kurds in the state of emergency region and 72

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Tezcan et al., Avrupa insan haklari, p. 168, citing the Ministry of Foreign Affairs Deputy General Directorate on Council of Europe and Human Rights. ECtHR, Akdivar and Others v. Turkey (no. 99/1995/605/693), 30 August 1996. ECtHR, Doğan and Others v. Turkey (nos. 8803-8811/02, 8813/02 and 8815-8819/02), 29 June 2004. This change in heart is mainly due to the new mandate granted by the Committee of Ministers of the Council of Europe. In a decision on 12 May 2004, the Committee of Ministers authorised the ECtHR to issue pilot judgments where it identifies a structural problem in a member state. The main reason for the new strategy was to ease the case load of the court. Terör ve Terörle Mücadeleden Doğan Zararlarin Karşilanmasi Hakkinda Kanun [Law on Compensation for Losses Resulting from Terrorism and the Fight against Terrorism], no. 5233, 17 July 2004 (hereafter, Compensation Law). For a detailed analysis of the implementation of the compensation law as well as an overview of the ECtHR’s jurisprudence on internal displacement in Turkey and a critique of the İçyer judgment, see Kurban et al., Coming to terms. ECtHR, Aydin İçyer v. Turkey (no. 18888/02), 12 February 2006.

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individuals belonging to left-wing groups on grounds of violations committed by security officers in the ‘fight against terrorism.’ Lengthy periods of detention without judicial review;79 ill treatment;80 inhuman and degrading punishment81 or torture;82 incommunicado detention;83 and lack of fair trial84 were the principal issues raised in these cases. While petitioners also raised Article 14 ECHR in some cases,85 the Court did not examine these claims in most instances and found no violation in rare cases where it did.86 In its judgments, the ECtHR established standards on safeguards for detention and trial. The Court concluded that terrorism does not justify holding individuals in incommunicado detention for up to thirty days without access to a judge, lawyer, relative or doctor.87 It held that failure to provide detainees the right to bring habeas corpus claims to challenge the legality of their detention violates Article 5(4) ECHR.88 It also found the unacknowledged detention of an individual to be a violation of Articles 3 and 5 ECHR.89 The Court stressed that terrorism does not give authorities carte blanche to hold suspects in detention free from judicial review, and that the inability of the unlawfully detained individuals to claim compensation in domestic courts violates Article 5(5) ECHR.90 It consistently held91 that due to the presence of a military judge 79

See ECtHR, Aksoy v. Turkey (no. 21987/93), 18 December 1996. See ECtHR, Mehmet Emin Yüksel v. Turkey (no. 40154/98), 20 October 2004; ECtHR, Çelik and İmret v. Turkey (no. 44093/98), 26 October 2004. 81 See ECtHR, Timurtaş v. Turkey (no. 23531/94), 13 June 2000; ECtHR, Taş v. Turkey (no. 24396/94), 14 November 2000. 82 See ECtHR, Salman v. Turkey (no. 21986/93), 27 June 2000; ECtHR, İlhan v. Turkey (no. 22277/93), 27 June 2000; ECtHR, Akkoç v. Turkey (no. 22947/93, 22948/93), 10 October 2000. 83 See ECtHR, Kurt v. Turkey (no. 15/1997/799/1002), 25 May 1998; ECtHR, Çakici v. Turkey (no. 23657/94), 8 July 1999; ECtHR, Timurtaş v. Turkey (no. 23531/94), 13 June 2000; ECtHR, Taş v. Turkey (no. 24396/94), 14 November 2000; ECtHR, Çiçek v. Turkey (no. 25704/94), 27 February 2001. 84 See ECtHR, Algür v. Turkey (no. 32574/96), 22 October 2002; ECtHR, Öcalan v. Turkey (no. 46221/99), 12 March 2003. 85 See ECtHR, Öcalan v. Turkey (no. 46221/99), 12 March 2003. 86 See ECtHR, İpek v. Turkey (no. 25760/94), 17 February 2004. 87 ECtHR, Aksoy v. Turkey (no. 21987/93), 18 December 1996. 88 The ECtHR reiterated this principle in subsequent cases which raised similar issues. See ECtHR, Demir and Others v. Turkey (no. 71/1997/855/1062–1064), 23 September 1998. 89 ECtHR, Kurt v. Turkey (no. 15/1997/799/1002), 25 May 1998. 90 ECtHR, Sakik and Others v. Turkey (no. 87/1996/706/898-903), 26 November 1997. 91 See for example ECtHR, Incal v. Turkey (no. 41/1997/825/1031), 9 June 1998; ECtHR, Çiraklar v. Turkey (no. 70/1997/854/1061), 28 October 1998; ECtHR, Karataş v. Turkey (no. 23168/94), 8 July 1999; ECtHR, Sürek v. Turkey (Sürek II) (no. 24122/94), 8 July 1999; ECtHR, Okçuoğlu v. Turkey (no. 24246/94), 8 July 1999; ECtHR, Sürek and Özdemir v. Turkey (no. 23927/94), 80

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on their bench, state security courts lacked independence and impartiality, in violation of the right to fair trial. In Öcalan v. Turkey, the court made it clear that the military judge should be removed if Turkey is to comply with its obligations under the Convention.92 A marginalised group that recently started to seek recourse in Strasbourg is conscientious objectors. Ülke v. Turkey, the only judgment against Turkey on the issue, concerned a conscientious objector who was subjected to a series of prosecutions and convictions by military courts for evading military service and refusing to wear the military uniform.93 The applicant raised Article 9 ECHR, arguing that he was prosecuted on account of his beliefs as a conscientious objector. Yet the ECtHR limited its review to Article 3 ECHR, holding that the applicant’s successive convictions and continuing liability to prosecution for the rest of his life amounted to ‘civil death’ and constituted degrading treatment. The court did not deem it necessary to conduct further review under Article 9 of the Convention. Nearly all freedom of expression cases concerned the criminalisation of dissent on the Kurdish question. While there are a few judgments concerning the prosecution of individuals from Islamic backgrounds for criticising state policies on religion,94 journalists for publishing a book criticising Islam95 or distributing leaflets regarding conscientious objection,96 and individuals for printing a party poster containing a slogan against the IMF97 and for publishing the bibliography of the founder of an extreme left-wing group,98 the rest concern the prosecution of individuals who have published materials critical of Turkey’s policies towards the Kurds99 or have expressed dissenting views on the issue.100

92 93 94

95 96 97 98 99

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8 July 1999; ECtHR, Başkaya and Okçuoğlu v. Turkey (no. 23536/94 and 24408/94), 8 July 1999; ECtHR, Şener v. Turkey (no. 26680/95), 18 July 2000. ECtHR, Öcalan v. Turkey (Grand Chamber) (no. 46221/99), 12 May 2005. ECtHR, Ülke v. Turkey (no. 39437/98), 24 April 2006. ECtHR, Erbakan v. Turkey (no. 59405/00), 6 July 2006; ECtHR, Yarar v. Turkey (no. 57258/00), 19 December 2006. ECtHR, Aydin Tatlav v. Turkey (no. 50692/99), 2 May 2006. ECtHR, Düzgören v. Turkey (no. 56827/00), 9 November 2006. ECtHR, Tüzel v. Turkey (no. 2) (no. 71459/01), 31 October 2006. ECtHR, Öztürk v. Turkey (no. 22479/93), 28 September 1999. See ECtHR, Sürek v. Turkey (no. 24122/94), 8 July 1999; ECtHR, Erdoğdu and İnce v. Turkey (no. 25067/94), 8 July 1999; ECtHR, Erdoğdu v. Turkey (no. 25723/94), 15 June 2000; ECtHR, Şener v. Turkey (no. 26680/95), 18 July 2000. See ECtHR, Polat v. Turkey (no. 23500/94), 8 June 1999; ECtHR, Karataş v. Turkey (no. 23168/94), 8 July 1999; ECtHR, Gerger v. Turkey (no. 24919/94), 8 June 1999; ECtHR, Ceylan v. Turkey (no. 23556/94), 8 June 1999; ECtHR, Okçuoğlu v. Turkey (no. 24246/94), 8 July 1999; ECtHR, Incal v. Turkey (no. 41/1997/825/1031), 9 June 1998.

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The only Article 10 ECHR case wherein the ECtHR did not find a violation is Zana,101 where the Grand Chamber drew the boundaries of freedom of expression. The case concerned Mehdi Zana, a Kurdish politician and the former mayor of Diyarbakır, the largest province populated by the Kurds in Turkey. He was prosecuted for having said in a press interview, which he gave in prison, that he supported the ‘PKK national liberation movement’ and that the PKK killed women and children ‘by mistake.’ The ECtHR underscored the special circumstances of the case owing to the fact that the applicant was a highly influential politician, the statements were made at the height of murderous attacks carried out by the PKK on civilians in southeast Turkey and the interview was published in a major national daily paper. The Court regarded the statements as prone to exacerbate an already explosive security situation in the region and found the conviction to have been a response to a pressing social need. The ECtHR issued nine judgments concerning political party dissolutions in Turkey, finding violation in all, with the seminal exception of Refah. While it found the closure of pro-Kurdish parties in the name of ‘territorial integrity and the unity of the nation’ to have infringed Article 11 ECHR,102 the Court upheld the closure of the pro-Islamist Refah in the name of ‘laicism.’103 In all eight cases where the ECtHR found violation of Article 11 ECHR, political parties had been banned for having advocated self-determination for the Kurds, criticised official policies on the Kurdish question or merely advocated the rights of the Kurds. Most of them were dissolved solely on the basis of their party programs or very shortly after their establishment. In Refah, the ECtHR concluded that the party was a serious threat to the secular regime in Turkey. The Court ruled that, the aspirations expressed by the chairman and members of Refah for the establishment of legal pluralism and a government based on Islamic law were a threat to the democratic regime in Turkey. The Court particularly noted that such undesirable aspirations were achievable when one takes account of Turkey’s history. 101 102

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ECtHR, Zana v. Turkey (no. 69/1996/688/880), 25 November 1997. ECtHR, United Communist Party of Turkey and Others v. Turkey (no. 133/1996/752/951), 30 January 1998; ECtHR, Socialist Party and Others v. Turkey (no. 20/1997/804/1007), 25 May 1998; ECtHR, Freedom and Democracy Party (ÖZDEP) v. Turkey (no. 23885/94), 12 August 1999; ECtHR, Yazar and Others and the People’s Labour Party (HEP) v. Turkey (no. 22723/93), 9 April 2002; ECtHR, Dicle on Behalf of the Democracy Party (DEP) v. Turkey (no. 25141/94), 10 December 2002; ECtHR, Socialist Party of Turkey (STP) and Others v. Turkey (no. 26482/95), 12 November 2003; ECtHR, Democracy and Change Party and Others v. Turkey (nos. 39210/98 and 39974/98), 26 April 2005; ECtHR, Emek Partisi and Şenol v. Turkey (no. 39434/98), 31 May 2005. ECtHR, Refah Partisi and Others v. Turkey (no. 41340/98), 13 February 2003.

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Oya Ataman, the ECtHR judgment concerning freedom of assembly and the freedom to hold meetings, involved the disproportionate use of force by the police against forty-fifty individuals engaged in an illegal but peaceful demonstration.104 The Court held that even if the demonstration was unlawful and the demonstrators did not comply with the orders of the security forces, curtailing freedom of assembly was not justified where there was no evidence of danger to public order, apart from a possible disruption of traffic. It drew attention to the small number of demonstrators who had wished to draw public attention to a topical issue and did not engage in acts of violence. In light of these circumstances, the ECtHR said it ‘was particularly struck by the authorities’ impatience in seeking to end the demonstration’105 and considered their forceful intervention to be disproportionate and unnecessary. The case of Fener Rum Lisesi Vakfi is the first ever ECtHR judgment in an application lodged by a non-Muslim in Turkey.106 The case concerns the confiscation of property belonging to a Greek Orthodox foundation. Ruling for the first time on Turkey’s property policies towards non-Muslim religious foundations, the ECtHR held that Article 1 of Protocol no. 1 was violated and ordered the government to pay compensation to the plaintiff. Similar cases brought by an Armenian foundation for the return of two of its confiscated properties resulted in a friendly settlement, where the Turkish government for the first time ever agreed to return the properties it had confiscated from a non-Muslim foundation.107 In 2008, the ECtHR issued successive judgments against Turkey in cases lodged by the Greek Patriarchate108 and two Armenian foundations on the same issue.109 Freedom of religion is a rare area where the ECtHR has by and large ruled in favour of the government. With the exception of a case brought by an Alevi individual, cases were brought by individuals belonging to the Sunni Muslim majority who faced restrictions by the secularist state in fulfilling their religious duties or were penalised for trying to do so. In these cases, the ECtHR endorsed Turkey’s policies on relations between the state and religious sphere, as well as the dominant understanding of the principle of laicism premised on the state exerting tight control over the interpretation and practice of Islam. 104 105 106 107

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ECtHR, Oya Ataman v. Turkey (no. 74552/01), 5 December 2006. Ibid., para. 41. ECtHR, Fener Rum Lisesi Vakfi v. Turkey (no. 34478/97), 9 January 2007. ECtHR, Yedikule Surp Pirgiç Ermeni Hastanesi Vakfi v. Turkey (no. 50147/99 and 51207/99), 26 June 2007. ECtHR, Fener Rum Patrikliği (Ekümenik Patriklik) v. Turkey (no. 14340/05), 8 July 2008. ECtHR, Yedikule Surp Pirgiç Ermeni Hastanesi Vakfi v. Turkey (no. 36165/02), 16 December 2008; ECtHR, Samatya Surp Kevork Ermeni Kilisesi, Mektebi ve Mezarliği Vakfi Yönetim Kurulu v. Turkey (no. 1480/03), 16 December 2008.

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The majority of Article 9 ECHR applications were lodged by former military officers expelled from the army on the ground of their fundamentalist religious activities. The ECtHR found all but one of these applications to be inadmissible.110 The Court’s jurisprudence in cases brought by former military officers is incoherent. In its early decisions in Yanaşık, Bulut and Karaduman, all dated from 1993, the Court held that the restrictions imposed on the applicants did not interfere with their religious freedom, and found their applications to be inadmissible.111 In the 1997 Kalaç judgment on the other hand, the Court reviewed the case under Article 9 ECHR, holding the interference to be justified.112After Kalaç, the ECtHR reverted back to its 1993 stand and considered all similar pending applications to be inadmissible on the ground that the applicants’ discharge from the military did not interfere with their right to religious freedom.113 Similar inadmissibility decisions followed in the next few years.114 The rest of the cases brought by individuals belonging to the Sunni Muslim majority were filed by women whose educational life or professional activities were restricted due to their headscarves. The infamous 2004 case of Leyla Şahin, where the ECtHR upheld the headscarf ban in institutions of higher education on the ground of laicism, is the only instance in headscarf cases where the Court conducted review under Article 9 of the Convention, finding the headscarf ban to be a legitimate interference with the applicant’s religious freedom. After Leyla Şahin, the ECtHR rejected nearly one hundred similar petitions filed by women wearing the headscarf.115

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ECtHR, Kalaç v. Turkey (no. 20704/92), 1 July 1997. Bulut and Karaduman, both dated 3 May 1993, were headscarf cases concerning female university students, whereas Yanaşik, dated 6 January 1993, concerned the expulsion of a cadet from the military academy on the basis of his religious activities. ECtHR, Kalaç v. Turkey (no. 20704/92), 1 July 1997. ECtHR, Mehmet Pektaş v. Turkey (no. 39687/98); ECtHR, Murat Soysever v. Turkey (no. 39826/98); ECtHR, O.Ö. v. Turkey (no. 42137/98); ECtHR, Tuncer Duman v. Turkey (no. 42788/98); ECtHR, Ali Özcan v. Turkey (no. 44199/98); ECtHR, Nuri Dağli v. Turkey (no. 45373/99); ECtHR, Özkan Dal and Erdal Özen v. Turkey (no. 45378/99); ECtHR, Şahin Özdaş v. Turkey (no. 45555/99); ECtHR, Yusuf Önce v. Turkey (no. 45627/99); ECtHR, Helmi Başpinar v. Turkey (no. 45631/99); ECtHR, Habip Balci v. Turkey (no. 45822/99); ECtHR, Arif Acarca v. Turkey (no. 45823/99); ECtHR, Ziya Çelikateş and Others v. Turkey (no. 45824/99); ECtHR, Mahir Kayseri v. Turkey (no. 46643/99); ECtHR, Habip Gündoğdu v. Turkey (no. 47503/99); and ECtHR, Osman Balci v. Turkey (no. 48718/99), all decided on 3 October 2002. ECtHR, Ramazan Akbulut v. Turkey (no. 45624/99), 6 February 2003; ECtHR, Sedat Şen and Others v. Turkey (no. 45824/99), 8 July 2003; ECtHR, Hasan Sert v. Turkey (no. 47491/99), 8 July 2004. Interview with Riza Türmen, the former Turkish judge at the ECtHR. Can Dündar, ‘Türkiye’de artik parti kapatilmasin’, Milliyet, 16 June 2008.

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Thus, in cases where applicants challenged state policies on laicism, the ECtHR has either agreed with Turkey’s interpretation of secularism or refrained from addressing the issue by issuing inadmissibility decisions. The Kavakçı judgment is an exception. In this case, the ECtHR found Turkey to have violated the Convention in stripping the applicant from her status as a parliamentarian with the pro-Islamist Fazilet Party, and banning her from politics for five years for having taken her oath in the Islamic headscarf.116 The Court assessed the case under Article 3 of Protocol no. 1 and did not address the applicant’s claim under Article 9 ECHR. Another critical freedom of religion issue in Turkey concerns the Alevis, a non-Sunni Muslim minority who adhere to a different interpretation and practice of Islam than the Sunni majority. Among the principal demands of the Alevis is the abolishment of compulsory religion classes in primary and secondary schools. In its 2007 Hasan and Eylem Zengin judgment, the ECtHR held that these courses violate Alevis’ right to education protected under Article 2 of Protocol no. 1. The Court found the content-matter of these classes to have failed to meet the criteria of objectivity and pluralism necessary for education in a democratic society and for developing a critical mind towards religion.117 It did not, however, review the applicant’s claim under Article 9 ECHR. The course that the ECtHR will take in the pending cases brought by Protestants against state policies on religion is noteworthy to be followed closely.118 Ünal Tekeli is the only judgment in the case law on Turkey where the ECtHR found violation of Article 14 ECHR. The case was lodged by a female lawyer against a domestic law requiring married women to use both their maiden name and their husband’s last name on official documents. She sought release to use only her maiden name on the ground that she was known by the latter in her professional life. Noting that Turkey is the only country within the Council of Europe imposing the husband’s name as the couple’s surname, even where the couple prefers otherwise, the ECtHR found the differential treatment of married men and married women to constitute discrimination on the basis of gender.

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ECtHR, Kavakçi v. Turkey (no. 71907/01), 5 April 2007. ECtHR, Hasan and Eylem Zengin v. Turkey (no. 1448/04), 9 October 2007. In March 2001, two Protestants who were arrested for publishing and distributing books about Christianity lodged a complaint with the ECtHR under, among others, Article 9 ECHR. In another case filed in December 2002, applicants are Turkish citizens of Protestant faith, who contested the rejection of their application to register their church on the ground that this violated their freedom of religion.

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5. Conclusion The ECtHR case law played an indispensable role in bringing to light the egregious human rights situation in Turkey in the late 1980s and early 1990s. The Court’s fact findings on disappearances, unlawful killings, arbitrary detentions, torture and destruction of property committed by members of the security forces shed light to an administrative policy of systematic violations against Kurdish civilians. It also exposed the impunity of perpetrators and the unavailability of domestic legal remedies for victims. The ECtHR’s case law demonstrated not only the dismissive attitude of legislative and executive authorities towards human rights, but also the absence of an impartial and neutral judiciary to uphold the principles of rule of law and human rights in Turkey. In the early years of litigation originating from Turkey, the Court’s judgments critically analysed the legal and political situation in the country, and provided an invaluable resource for other international actors in monitoring the country’s compliance with human rights standards. The judgments also encouraged national human rights organisations to express their criticisms vis-à-vis the government and to demand reforms. If awareness of the poor human rights record of Turkey was largely triggered by the ECtHR’s jurisprudence, reforms to improve it were made possible with the emergence of the EU as an actor in Turkish politics. Notwithstanding the high number of judgments that the ECtHR has issued against Turkey over the years, their execution began only after the EU declared Turkey a candidate for accession in 1999 and accelerated after the Justice and Development Party (Adalet ve Kalkınma Partisi-AKP) came to power in 2002. In monitoring Turkey’s compliance with the accession criteria, the EU treated ECtHR judgments as benchmarks in measuring progress. This forced the AKP government to undertake a series of relatively groundbreaking reforms in the area of human rights. While not necessarily a democratically minded political party with a principled approach to human rights, the AKP nonetheless adopted a pragmatic approach in the reform process, undertaking legislative and constitutional changes to achieve the absolute minimum necessary to fulfil the EU’s accession requirements. The ways in which the ECtHR’s case law has made a difference in rights protection in Turkey seems to depend on various factors, such as the type of violation in question, the commitment of the government to executing the judgment concerned, the political nature of the issue, the number of judgments on any given issue and the amount of compensation Turkey is ordered to pay. While the government has come a long way in executing the ECtHR’s judgments on Article 3 ECHR, for example, the same cannot be argued for the execution of those concerning Article 10 ECHR. The relative success in

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executing Article 3 judgments can be explained by various factors: the jus cogens nature of the prohibition of torture under customary international law, the absolute prohibition of torture under the Convention and the non-derogable nature of the duty not to torture, the political will demonstrated by the AKP government in its campaign on ‘zero tolerance to torture’, and the relative ease in creating strong public support against torture and ill treatment. In contrast, freedom of expression is not a jus cogens principle and its protection under the Convention is not absolute but subject to certain restrictions. In addition, the AKP government’s commitment to freedom of expression is highly questionable, and there is no public support for the absolute protection of freedom of speech, particularly when such speech concerns the expression of alternative views on the Kurdish question and laicism. The government undertook a series of significant reforms within the context of the EU accession process. However, despite the removal of some restrictions on human rights, the reforms fall short of fulfilling the EU conditions for membership. In the area of freedom of expression, the constitutional restrictions were lifted on the use of any ‘language prohibited by law’ in the expression of thought and in broadcasting, respectively. However, the amendments left untouched the restrictions attached to the exercise of these rights for the purposes of, inter alia, safeguarding ‘the indivisible integrity of the state with its territory and nation.’ While legislative reforms bolstered the constitutional amendments, in some cases the draconian provisions of the penal code were effectively re-enacted under new names. Similarly, the 2006 amendments to the anti-terror law constitute a serious setback in terms of the parliament’s earlier efforts.119 The new law has an over-inclusive definition of terrorism, introduces new restrictions on free speech, and imposes heavy fines for owners and editors of media organs and prison sentences for journalists. Most disconcertingly, the law reintroduces the temporary closure of publications without a formal hearing and even at times merely upon the order of a prosecutor. In the area of freedom of association, many of the restrictions on the exercise of this right were lifted during the reform process.120 It is now easier for marginalised individuals and minorities to establish associations, which in turn are allowed to use minority languages in non-official correspondence. Yet, the ban on the establishment of associations with aims expressly prohibited in the constitution remains. While the law does not define the ‘prohibited’ purposes or activities, one might suspect that it aims to protect the constitutional principles of territorial unity and national security. The expansive 119

120

Terörle Mücadele Kanununda Değişiklik Yapilmasina Dair Kanun [Law on the Amendment of the Law on the Fight against Terrorism], no. 5532, 29 June 2006. Dernekler Kanunu [Law on Associations], no. 5253, 4 November 2004.

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reading of these principles by Turkish prosecutors and judges have in the past resulted in the inclusion among the ‘prohibited purposes’, inter alia, of advocacy of peaceful solutions to the Kurdish problem. For example, the Turkish Constitutional Court dissolved the Socialist Party on the grounds, inter alia, that its activities aimed at a peaceful solution to the Kurdish problem encouraged separatism and threatened national unity and territorial integrity. The Court closed the United Communist Party of Turkey, which advocated in its program the acknowledgment in the constitution of the ‘existence of the Kurds’, on the basis that the party was ‘likely to undermine the territorial integrity of the state and the unity of the nation.’ The domestic framework governing political parties is one other area that needs further reforms to achieve harmonisation with the ECtHR’s jurisprudence. On the one hand, the constitutional amendments achieved significant progress by substantially increasing the threshold for the dissolution of a political party. Pursuant to Article 69, the Constitutional Court may not dissolve a party unless it concludes that the party has become ‘the centre of activities’ contrary to the fundamental principles laid out in the constitution, including the principle of laicism. Notwithstanding, in defiance of the principle of the hierarchy of laws, the Law on Political Parties retains several restrictions that contradict the letter and spirit of the relevant constitutional provisions as well as the standards established by the ECtHR. Article 9(3) prohibits the use of the word ‘communist’ in the name of a political party, despite the ECtHR’s unequivocal ruling in United Communist Party. Article 81 bans political parties from ‘arguing’ the existence of minorities in Turkey, promoting minority languages and cultures, and using minority languages in their written materials, activities and statements. After decades of litigation history with the Strasbourg court, law and politics in Turkey fall far short of meeting the European human rights standards. While significant progress has been made in recent years in harmonising the Turkish legal framework with the principles laid out in the Convention and the jurisprudence of the ECtHR, the constitutional and legal structure continue to rest on an authoritarian understanding which seeks to protect the interests of the state against individuals at the cost of violating fundamental rights and liberties. The reforms undertaken in the EU accession process were instrumental in lifting several restrictive provisions in the constitution and laws. However, the official ideology underlying the Turkish legal framework remains intact and continues to hold the preservation of national unity and laicism above the protection of human rights and consolidation of democracy.

Chapter Nine The European Court of Human Rights in the UK: Litigation, Rights Protection and Minorities Susan Millns, Christopher Rootes, Clare Saunders and Gabriel Swain 1. Introduction The United Kingdom, with its historic absence of a written Constitution and accompanying Bill of Rights, has traditionally paid more attention to the need to respect individual freedom than the protection of positive substantive rights.1 However, following mounting criticism of judicial incapacity to redress human rights violations, and an increasing number of cases from the United Kingdom being heard before the European Court of Human Rights (hereafter the ECtHR or the Court), pressure for the introduction of a domestic Bill of Rights grew throughout the late twentieth century. Prior to this, fundamental freedoms in the United Kingdom were typically upheld through a combination of legislation and judicial enforcement. Historically, legal remedies protecting civil liberties were closely linked to private law causes of action.2 So, for example, individual liberty and freedom from arbitrary detention was guaranteed by the action for false imprisonment or trespass to the person. As a result the courts were able to protect certain liberties through individual litigation. That said, while in many other jurisdictions rights enjoy a constitutionally protected status, permitting judicial review of the constitutionality of legislation, this has not historically been the case in the UK. Instead, it is the judges who have sought to use the common law (that is unwritten, case law) to impose limitations upon legislative power. In this regard, the judges have identified certain standards as fundamental to the historical common law and these are

1

2

D. Feldman, Civil liberties and human rights in England and Wales, 2nd ed. (Oxford: Oxford University Press, 2002). Ibid., p. 58.

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used in the interpretation of legislation.3 Such standards include the presumption that legislation is not intended to be retroactive, is not intended to interfere with property rights and is not intended to oust the jurisdiction of the court.4 These presumptions, however, have not always been accorded sufficient weight as to protect individual rights with the power of the common law and judicial creativity being kept within limits. As such, a separation of powers has existed with politicians and the legislature keen to protect their freedom to enact legislation subject to a democratic mandate without interference by judges on the basis of uncodified and unlegislated rights.5 Equally, by virtue of the doctrine of parliamentary sovereignty, Parliament has effectively been able to encroach on freedom without legal constraint. As a result of calls for reform to strengthen the power of the judiciary in their role as the guarantors of individual fundamental and human rights, one of the most important constitutional changes ever to have been introduced in the United Kingdom came with the arrival in power of the Labour government in 1997 together with its commitment to improve human rights protection. With the passage by parliament of the Human Rights Act 1998 (HRA), a new era has begun as a distinct rights culture has come to pervade UK law, society and political life and the government has realised its ambitious project to ‘bring rights home’. ‘Bringing rights home’, to use the rhetoric of New Labour,6 describes the process of ‘domestication’ of international human rights law. More specifically, it denotes the incorporation of parts of the European Convention on Human Rights and Fundamental Freedoms (hereafter the ECHR or the Convention) into internal UK law,7 with the effect that individuals can rely on the rights contained within the Convention before the domestic courts, thus avoiding the expense and delay of taking a case before the European Court of Human Rights in Strasbourg. Yet, while speed and cost effectiveness were given as the practical reasons for incorporation, the project was presented more broadly by New Labour as embodying an ideological commitment on the part of the government to a better protection of fundamental rights and freedoms.8 3 4 5 6

7

8

Ibid., p. 61. Ibid. Ibid., p. 63. This phraseology reflects the titles of the Labour Party’s Consultation Paper introduced prior to the General Election of May 1997: J. Straw, MP and P. Boateng, MP, Bringing rights home: Labour’s plans to incorporate the European Convention on Human Rights into United Kingdom law, December 1996, and the UK government’s White Paper on the case for incorporation: Rights brought home: The Human Rights Bill, October 1997, Cm 3782. The Human Rights Act 1998 is applicable in Northern Ireland and Scotland, as well as in England and Wales. Rights brought home: The Human Rights Bill, para 1.17.

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The commitment to give further domestic effect to the substantive rights guaranteed under the Convention resulting in the adoption of legislation in the form of the HRA 1998,9 has been heralded as ‘the most significant statement of human rights in domestic law since the 1689 Bill of Rights.’10 Undoubtedly, the changes it introduces have important implications for the future direction and content of human rights litigation in the UK. The HRA enjoyed a relatively smooth introduction since it was supported by more liberal members of the judiciary together with civil liberties groups such as Liberty and Charter 88 which had long campaigned for the introduction of a Bill of Rights.11 None of these constituencies, however, pursued an agenda aimed specifically at the promotion of non-majoritarian rights and interests and this may go some way towards explaining the lack of bite of the new legislation in its equality provisions, having in particular no freestanding equality clause. Hence, rather than seeking to install a wholly newly drafted Bill of Rights, the HRA incorporates the existing European Convention on Human Rights (ECHR) (with all its existing merits and flaws) into domestic law. In line with the idea of bringing rights home, the legislation envisaged the domestic mainstreaming of human rights, making their protection a matter of routine and providing a core set of political and legal values against which the conduct of national public authorities must be measured. The changes introduced have been of significant interest to numerous nonmajoritarian communities for both their positive promise to end deeply rooted oppression based upon race, religion, gender, sexuality, etc. The Act has been welcomed in so far as it opens up a window of opportunity allowing previously unheard arguments to be put before the courts based upon alleged violations of fundamental rights. This advantage, however, has to be measured along side some significant difficulties. Inevitably, it harbours a negative capacity to provoke a backlash against minority rights claims and to further the demands of opposing interest groups. Also, as regards the scope of the legislation – both its material scope in terms of the rights guaranteed and its personal scope in terms of those to whom the act applies – this certainly detracts from its capacity to address certain types of harms. Obviously, having incorporated the ECHR into domestic law in order to produce a national Bill of Rights, the HRA mirrors many of the deficiencies of 9

10

11

The Act received the Royal Assent on 9 November 1998. It came into effect in 2000, the delay in introduction being due to the carrying out of a programme of judicial education. J. Straw, MP, ‘Foreword’, in Wadham and Mountfield (eds.), Blackstone’s Guide to the Human Rights Act 1998 (London: Blackstone Press, 1999), p. ix. F. Klug, Values for a godless age: The story of the UK’s new bill of rights (London: Penguin, 2000), pp. 152–163.

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the Convention itself. For example, in terms of the rights it guarantees, the European Convention is typical of many international human rights instruments being premised upon the need to sanction State actions that violate fundamental rights in the public sphere. As such, it contains a familiar list of first generation civil and political rights and is notably short on the provision of second generation social and economic rights.12 This is not to mention the absence of third generation cultural, environmental and developmental rights and an emerging fourth generation of ‘bio-rights’ associated with the regulation of new biotechnologies. Critics, however, have notoriously challenged the construction of such rights instruments arguing that they do not provide an effective way of tackling harms against minority and other social groups which may represent a more privatised form of injury, for example harms to the body of a sexual or reproductive nature.13 As such, some types of injury, such as those committed upon women, have had to be reformulated in such a way as to bring them within the material scope of international human rights texts. A further limitation and criticism of the Convention rights in this regard is that, being addressed only to States, they seem a priori to cover only those violations of fundamental rights which are carried out by public and not private actors. It is well established that, in principle, international law agreements do not create obligations for private parties,14 but only for states, and the Human Rights Act itself is confined in its application to violations or rights carried out by public authorities.15 As a result the HRA is concerned primarily with the review of executive action (i.e. that of public authorities and those private bodies exercising a public function) for its Convention compliance (s.6, HRA). Consequently, concern to avoid an over-simplification of the public-private divide and the recognition that the abuse of the rights of non-majoritarian minority groups may more usually occur at the hands of private individuals is not addressed by the Act’s apparent lack of effect between non-state actors. That said, under the case law of the European Court of Human Rights it has been held that states may be under positive obligations to prevent harm caused by private persons and so have a duty to protect victims of rights abuses. For 12 13

14

15

K.D. Ewing, ‘Social rights and constitutional law’, Public Law (1999), 104. W. Brown, States of injury: power and freedom in late modernity (Princeton: Princeton University Press, 1995); W. Brown, ‘Suffering rights as paradoxes’, Constellations 7/2 (2000), 230; C. Bunch, ‘Women’s rights as human rights: toward a re-vision of human rights’, Human Rights Quarterly 12 (1990), 486. This is not to say that the application of international human rights law to private parties has gone unexplored: A. Clapham, Human rights in the private sphere (Oxford: Oxford University Press, 1993). See Wadham and Mountfield, Blackstone’s guide, chapter 5. Nevertheless, see also, M. Hunt, ‘The “horizontal effect” of the Human Rights Act, Public Law (1998), 423.

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example, in the case of X and Y v. The Netherlands16, a sexual assault carried out upon a minor in a private institution which had gone unprosecuted led the ECtHR to find the Netherlands in violation of the right to respect for private life under Article 8 ECHR. The Court concluded that the state’s positive obligations ‘may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves’ (para. 23). These developments do hold some promise for a more horizontal application of Convention rights in disputes between private parties in the UK. Bearing in mind this background to the domestic protection of human rights in the UK, we now turn in section two to a consideration of the attention which has been given to the ECHR in the national sphere. This will be followed by an examination of litigation raising claims made by minority groups and by and analysis of the jurisprudence of the European Court of Human Rights in the sphere of Articles 8–11 and 14 ECHR.

2. The Study of the ECHR: State of the Art in the UK The academic and legal study of the ECHR in the UK has a substantial history. The United Kingdom became a signatory to the ECHR in 1950 and the instrument came into force in 1953. The right of individual petition was recognised by the UK in 1966 and while this was originally recognised for a period of five years, it has been renewed regularly.17 It is this right of individual petition which has provided the majority of cases coming before the European Commission and Court and thus has provided much food for academic thought in discussing the relative contribution of the Convention to the protection of individual and/or group rights. As one academic commentator, Farran, argues, the Court should be viewed as a ‘bulwark against specific infringements of human rights rather than large scale violations, although individual cases may be representative of violations affecting certain sectors or groups of the population.’18 While the Convention is binding in international law on all its signatories, its status in relation to UK domestic law has traditionally been somewhat ambiguous and this issue too has vexed many members of the academic and legal communities. The difficulty is that, while in many countries it is an 16 17

18

ECtHR, X and Y v. The Netherlands (no. 8978/80), 26 March 1985. See further S. Farran, The UK before the European Court of Human Rights – Case law and commentary (London: Blackstone Press, 1996), chapter 1. Ibid., p. 2.

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automatic feature of international law that the Convention becomes part of the domestic law of the signatory State in accordance with the hierarchy of norms provided by the State’s Constitution, this is not so in the UK. Here, this process is not automatic. The Convention, like all other forms of international law, has not traditionally been incorporated into national law and therefore in cases of conflict between international and domestic law the courts are expected to apply the national provisions. Consequently individuals from minority and vulnerable groups have not been successful in introducing arguments based upon a violation of Convention rights in the domestic courts. This point of constitutional principle was reiterated firmly in the case of Brind19 in which the House of Lords was asked to assess the legality of a decision of the Home Secretary which restrained the dissemination of opinions of ‘terrorist’ organisations in Northern Ireland in the media. A group of journalists challenging the decision argued that it constituted a violation of Article 10 of the Convention. Lord Ackner dismissed the application as manifestly ill founded and stated that if the Home Secretary had considered Article 10 ECHR in coming to his decision then this would have amounted to an incorporation of the Convention through the back door. Since the Convention had not been incorporated into domestic law it could not act as a source of rights or obligations. Yet, as with other international treaty obligations, the Convention has traditionally been applicable in the interpretation of legislation. This is because of the generally recognised principle of statutory construction that Parliament is deemed not to intend to legislate contrary to international obligations. Where appropriate, therefore, the national courts endeavoured to interpret statutory law in the light of the Convention and the House of Lords, in the case of Derbyshire County Council,20 expressly indicated that where the law is either unclear or ambiguous, or regards a question not already ruled upon, then the courts ought to consider the implications of the Convention upon that question. Commentators have noted too that the Convention has also come to influence domestic law more indirectly via its incorporation into the law of the European Union. The European Court of Justice has indicated on many occasions that fundamental rights are to be respected as part of the general principles of EC law and that these rights are inspired by, inter alia, those rights guaranteed in the European Convention.21 Since directly effective EC law is to 19

20 21

UK House of Lords, R v. Secretary of State for the Home Department, ex parte Brind and Others [1991] 1 All ER 720. UK House of Lords, Derbyshire County Council v. Times Newspapers Ltd [1992] 3 WLR 28. ECJ, Case 4/73, Nold v. Commission [1974] ECR 491. ECJ, Case 36/75, Rutili v. Minister for the Interior [1975] ECR 1219.

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be applied automatically in UK domestic law under the terms of s.2(4) of the European Communities Act 1972 (as interpreted in Factortame Ltd v. Secretary of State for Transport22), then issues concerning those fundamental rights guaranteed by the Convention have found their way into national UK law without further parliamentary involvement, at least where they touch upon matters of EC law and policy.23 As a result of this picture of the relationship between international and domestic law as it pertained to the incorporation of Convention rights in the UK prior to the HRA 1998, individuals from minority and vulnerable groups seeking to assert that their fundamental rights had been violated had little option but to take their case to the Strasbourg institutions. This, alongside a strong domestic culture and tradition of asserting civil liberties claims and the UK’s early signature of the Convention, has meant a substantial history of litigation against the UK before the European Commission and Court of Human Rights. For example, figures for 2005 indicate that individual petitions from the UK resulted in 1.816 Court decisions and 284 Court judgments, including 135 judgments (67 against) under Articles 8, 9, 10, 11 and 14 ECHR.24 Other comparative studies have reached similar conclusions. For example, the study by Cheney, Dickson, Fitzpatrick and Uglow, published in 1999, indicated that up to October 1998 the United Kingdom had 135 cases against it referred to the Court, and at least one violation of the Convention was found in 52 cases. By comparison, Denmark had had 7 cases referred to the Court, with at least one violation found in 3 cases; France had 118 referrals and 59 violation cases; Germany had 35 referrals and 15 violation cases; Italy had 155 referrals and 101 violation cases; the Netherlands had 50 referrals and 30 violation cases.25 Thus, while the UK has been the subject of more successful complaints than Denmark or Germany, it fares well by comparison with most other states. In discussing the consequences of implementation of the Convention in the domestic arena, commentators have raised concerns over the extent to which the Act can really provide a vehicle for the promotion of fundamental rights and social justice and who exactly should be involved in these decisions.

22

23 24

25

ECJ, C-213/89, The Queen v. Secretary of State for Transport, ex parte Factortame [1990] ECR I-2433, 19 June 1990. See Farran, ‘The UK before the European Court’, p. 4. Among the nine states included in the JURISTRAS project, this puts the UK second behind Italy (on Court decisions), fourth behind Italy, Turkey and France (on Court judgments) and second behind Turkey (on judgments under Articles 8, 9, 19, 11 and 14 ECHR). D. Cheney et al., Criminal justice and the Human Rights Act 1998, 1st ed. (Bristol: Jordan Ltd., 1999), chapter 1.

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One point which deserves highlighting at this stage is the reality of any rights culture which necessarily produces competing rights claims requiring the judiciary to engage in a careful balancing exercise. The increased involvement of the judiciary in this process thus also deserves mention in so far as the new rights culture has seen a shift in the balance of power between the various organs of the State charged with ensuring the protection of fundamental rights. Basically, the powers of the legislature and those of the judiciary have altered in favour of the latter. Unlike the application of Bills of Rights in other jurisdictions, the HRA maintains the core constitutional doctrine of the sovereignty of parliament - meaning that the judiciary may not directly disapply Acts of parliament.26 This at least ensures that legislative provisions which have been hard fought over in parliament (for example, the Abortion Act 1967 and its subsequent amendments) cannot be directly overturned by an unelected judiciary. That said, legislators now face a heavy responsibility to give proper consideration to the question of Convention compatibility when proposing new statutes. Section 19 HRA requires the Minister in charge of the Bill to state either that in his/her view the Bill is compatible with the Convention rights or that s/he is unable to make a statement of compatibility but that nevertheless the government wishes parliament to proceed with the Bill.27 The statement must be made in writing and be published. The effect of this provision is clearly to focus the mind of legislators on their obligation to act in conformity with the Convention. In terms of the subsequent application of legislation by the courts, the maintenance of the doctrine of parliamentary sovereignty does also need to be viewed alongside the innovation that some courts (the High Court and above) may now issue a ‘declaration of incompatibility’ (s.4(2), HRA). The declaration acts as a signal to Parliament and to the public at large that, in the court’s view, a violation of a fundamental right has occurred. While the courts strive to interpret statutory provisions in conformity with the Convention rights in order to minimise the need to have recourse to the ‘declaration of incompatibility’, section 3(1) of the Act also imposes an obligation on domestic courts and tribunals to interpret legislation, wherever possible, in a way which is consistent with the Convention rights and section 2(1) demands that they take account of the decisions of the Strasbourg institutions in doing so.

26

27

K.D. Ewing, ‘The Human Rights Act and parliamentary democracy’, Modern Law Review 62 (1998), 79; K.D. Ewing, ‘A theory of democratic adjudication: towards a representative, accountable and independent judiciary’, Alberta Law Review 38 (2000), 708; D. Feldman, ‘The Human Rights Act 1998 and constitutional principles’, Legal Studies 19 (1999), 165. See Feldman, ‘Civil liberties and human rights’, p. 93.

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While, therefore, only public authorities are obliged to comply with the terms of the HRA, the obligation upon the courts to interpret legislation in conformity with the rights set out in the Convention has the effect that the Convention will be potentially relevant in cases between private parties and in the development of rights under the common law.28 For example, the Article 10 right to freedom of expression might be used to suggest a particular construction of the Defamation Act in litigation between private parties even though neither of them could directly bring proceedings against the other under the HRA. Not surprisingly, the HRA and its reorganisation of the division of powers with regard to the resolution of human rights questions in the UK has given rise to many commentaries and much speculation as to possible effects. This has produced a mixed range of responses. Many commentaries in the media, from academics and civil liberties campaigners have been positive. Leading figures such as Anthony Lester have described it as a ‘brilliant Bill’29 and a turning point in the UK’s legal and constitutional history. William Wade talks of a ‘quantum leap into a new legal culture of fundamental rights and freedoms’.30 The positive responses are, however, not uniform. Other literature highlights alleged omissions, deficiencies and other general problems. This is largely oriented around the chosen model of incorporation and comes from those who argued the case for an entrenched Bill of Rights whereby the judiciary would have full powers of constitutional review and the option of overturning unconstitutional legislation.31 The ensuing debate has produced familiar assertions as to whether parliament or the judiciary can be said to have the best record on protecting human rights.32 While the question remains unresolved at present, what is clear is that the process of determining human rights claims in the UK must now be viewed as one of ongoing dialogue and intense decision-making. This dialogue inevitably operates not only at the national but also the supranational level, involving both domestic and international institutions, including contributions from the European Court of Human Rights.

28

29

30 31

32

G. Phillipson, ‘The Human Rights Act, “horizontal effect” and the common law: A bang or a whimper?’, Modern Law Review 62 (1999), 824. A. Lester, ‘The impact of the Human Rights Act on public law’, in Marshall (ed.), Constitutional reform in the United Kingdom (Oxford: Hart Publishing, 1998), pp. 105–107, at 105. W. Wade, ‘Human rights and the judiciary’, EHRLR (1998), 520, at 532. See, for example, G. Marshall, ‘Patriating rights – With Reservations: The Human Rights Bill 1998’ in Marshall (ed.), Constitutional reform in the United Kingdom, pp. 73–84. N. Whitty, T. Murphy & S. Livingstone, Civil liberties law: The Human Rights Act era (London: Butterworths, 2001), p. 4.

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3. Litigation in the ECtHR Regarding Claims Raising Articles 8–11/14 ECHR as well as Claims Involving Non-majoritarian Groups Not surprisingly, UK litigants have brought cases under all aspects of the Convention including Articles 8–11 and Article 14 ECHR, and these have had important implications for both the individuals concerned, as well as the wider groups and communities to whom these people belong. The UK data set of cases used to provide quantitative and qualitative data for this chapter comprises all the cases (judgments and decisions) in which Article 14 ECHR has been raised by litigants against the United Kingdom, as well as all judgments in which Articles 8–11 ECHR were raised.33 This selection is necessitated by the large number of cases brought against the UK and the fact that cases raising Article 14 ECHR are particularly prominent. Our database hence contains 92 Court judgments and 471 decisions raising Article 14 issues in conjunction with allegations of breaches of other Convention rights, as well as an additional 69 judgments in which Articles 8–11 ECHR were raised with no connection to Article 14 ECHR.34 Litigants are often motivated to bring human rights claims on their own initiative. However, in a substantial number of UK cases litigants are assisted in their claims by various NGOs, and the interest of such organisations in human rights litigation goes some way to explain the nature and frequency of cases brought on particular issues. As Table 1 indicates, from the foundation of the Court up to the end of 2008, one-third (34%) of cases raising Articles 8–11 and 14 ECHR, for which judgments were given, were brought by individuals who received some type of support from an NGO. Here we define support as instances where an NGO either submits to the Court written comments in support of an applicant’s claims, or represents the applicant before the Court. NGO involvement ranges from a handful of organisations that have submitted written comments in support of an applicant in one case, to Liberty, a human rights NGO that has represented applicants before the Court in 15 cases, and has submitted written comments in 14 additional cases. There are, however, numerous organisations 33

34

The decision to limit the data set to these cases was taken in the light of the large amount of litigation against the UK and in order to create a manageable data set. A search of the HUDOC database reveals that most judgments and decisions relating to the specific situation of immigrants indeed involve a claim based on Article 14 ECHR. Only 1 out of 4 judgments did not (the claim was based on Article 5 ECHR) and 9 out of 19 decisions did not (claims were based on Articles 5, 6, 8, 13 and 24 ECHR). Regarding the situation of minorities more generally, again most claims involve Article 14 ECHR with only 7 out of 17 judgments not raising this Article (claims involved Articles 2, 3, 6, 8, 9, 10, 11 and 13 ECHR).

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Table 1. Organisations supporting applicants (in cases raising Articles 8–11 & 14 ECHR, for which there were judgments) [to December 2008] Organisation

Liberty Child Poverty Action Group Citizens Advice Bureau AIRE Centre Committee on the Administration of Justice European Roma Rights Centre Rights International JUSTICE Article 19 Amnesty International Interights British Irish Rights Watch Campaign for Freedom of Information Joint Council for the Welfare of Immigrants Privacy International Programme on International Rights of the Child Age Concern England Voluntary Euthanasia Society Society for the Protection of Unborn Children

Represented applicant

Submitted comments in support of applicant

Represented and/or submitted comments in support of applicant

Percentage of cases

15 2

14 0

29 2

18.0 1.2

2

0

2

1.2

1 1

3 1

4 2

1.2

0

5

5

3.1

0

4

4

2.5

0 0 0

3 3 2

3 3 2

1.9 1.9 1.2

0 0

2 1

2 1

1.2 0.6

0

1

1

0.6

0

1

1

0.6

0

1

1

0.6

0

1

1

0.6

0

1

1

0.6

0

1

1

0.6

0

1

1

0.6

(Continued)

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Table 1. Organisations supporting applicants (in cases raising Articles 8–11 & 14 ECHR, for which there were judgments) [to December 2008] (Cont.,) Organisation

Trade Union Congress Post Office Engineering Union Catholic Bishops’ Conference of England and Wales No organisation involved

Represented applicant

Submitted comments in support of applicant

Represented and/or submitted comments in support of applicant

Percentage of cases

0

1

1

0.6

0

1

1

0.6

0

1

1

0.6

140

127

106

65.8

N.B. The sum of percentages exceeds 100 because in some instances more than one organisation submitted written comments for the same case.

involved in supporting applicants; Table 1 includes only organisations that submit written comments or represent applicants; it does not include other organisations involved in Court decisions (see below) or those that offer advice and/or other types of support to ECtHR applicants. The engagement of these human rights/welfare organisations in test case litigation makes it easy for us to identify test cases. The Child Poverty Action Group (CPAG) has a policy of seeking cases that will benefit not only the person pursuing the action, but others too.35 One of CPAG’s main test cases was Willis v. UK.36 CPAG had been campaigning at least since the late 1990s to help to ensure that widowers might receive payment upon the deaths of their wives equal to that their wives would receive upon their husbands’ deaths. It brought the Willis case to the ECtHR to challenge the British legislation that prevented men from claiming widow’s payments. Brian Wilson and his wife were married in 1978 and had three daughters, born in 1980, 1981 and 1986. The applicant’s wife died in 1993, aged 42. The applicant was the administrator of his wife’s estate. The applicant’s wife was employed as a private caterer for at least three years and, while working, she contributed to the joint income of the marriage. She paid social security contributions as an employed earner until her death. The applicant, a solicitor, continued in full-time work and had to meet the 35

36

R. Smith, ‘Test case strategies, public interest litigation, the Human Rights Act and legal NGOs’, JUSTICE, London (2003). ECtHR, Willis v. UK (no. 36042/97), 11 June 2002.

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expense of childcare from the existing family income. The applicant applied to the Benefits Agency for the payment of social security benefits, namely a Widow’s Payment and a Widowed Mother’s Allowance, payable under the Social Security and Benefits Act 1992 but was told he was ineligible because of his sex. He was finally awarded £21.084,22 pending the introduction of the Welfare Pensions Reform Act and the case was struck out of the list. A related test case supported by CPAG was that of Runkee and White v. UK.37 Similar to the Willis case, Mr Runkee and Mr White applied for Widow’s Payment and Widowed Mother’s Allowance, and the UK government was found to have violated Article 14 ECHR for discriminating against men and Article 1 of Protocol 1 to the Convention for denying the applicants their right to property on those accounts. However, this case differs because the applicants also contested the decision of the UK government to deny them payment of a Widow’s Pension. On this count, there was deemed to be no violation of the ECHR. This and later cases raising the same issue were thrown out of the court as it was deemed that the Widow’s Pension had a role to play in providing to women of a certain generation with supplementary income in order to correct ‘factual inequalities’ between older widows, as a group, and the rest of the population. The court has since ruled that this difference in treatment was reasonably and objectively justified. In a similar, gender-related test case, Walker v. UK,38 Liberty supported Mr Walker, a 60-year-old pensioner who claimed that it was unfair that he should pay National Insurance Contributions (NICs) when a woman of his age would be exempt. Retirement ages for men and women have traditionally been differentiated in the UK, women retiring at 60 and men at 65, and the payment of NICs has been tied to these ages. In this case, the Court found that there had been no violation of Article 14 ECHR because the state had taken measures to equalise the retirement age of men and women, and the five year age difference was until recently justified in order to ‘correct factual inequalities’, to mitigate financial inequality and hardship due to women’s traditional role as carers. The ECtHR also failed to find a violation of Article 14 ECHR in this case because it considered it legitimate to link NICs to the end of working life, and because it considered that national authorities are in a better position than the ECtHR itself in determining appropriate revenues and taxes for states. Liberty had more success in a related test case, Grant v. UK,39 in which it stood up for a male to female transsexual who was disallowed a pension at the 37 38 39

ECtHR, Runkee and White v. UK (no. 42949/98), 10 May 2007. ECtHR, Walker v. UK (no. 37212/02), 22 August 2006. ECtHR Grant v. UK (no. 32570/03), 23 May 2006.

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age of 60 even after being granted a Gender Recognition Certificate under the Gender Recognition Act 2004. The Court granted the applicant a pecuniary award from the time elapsed between the Christine Goodwin v. UK40 case (which recognised the new gender of transsexuals) and the present time, under Article 8 ECHR, as the ECtHR considered that there was no separate issue under Article 14 ECHR. Liberty has also worked on other gender-related cases, including an unsuccessful attempt to prove sexual discrimination and harassment (Fogarty v. UK),41 and upon a successful case raising Article 12 (B. and L. v. UK),42 the right to marry and found a family. B. and L. were father-in-law and daughter-in-law who were prohibited from marrying under UK law initially designed to protect the integrity of the family and prevent sexual rivalry between parents and children. However, even at the time of the case, the UK government had made proposals for lifting the prohibition as it claimed that it did not serve a useful purpose in public policy.43 On the subject of marriage, Liberty also helped P.M,44 an unmarried father, to claim tax-free benefits equal to those of a married father. The other, much-publicised, judgment case that Liberty was involved in was the case of A. v. UK,45 in which Liberty was seeking to challenge the right of Members of Parliament (MPs) to parliamentary immunity. A. was a tenant in social housing who had been dubbed a ‘neighbour from hell’ for alleged drug use and miscreant children. Her precise name and address had been announced by her MP in Parliament, resulting in her identity being made public and leading to her receiving threats of a racist nature and hate mail. Liberty believed that it was inappropriate for the MP to have disclosed this information in a parliamentary debate. Nonetheless, the case failed to result in a violation partly because, in the words of Owens and White, ‘where the source of grievance is the legislation itself, requiring an effective remedy would be tantamount to allowing judicial review of the legislation’.46 Liberty was accused of trying to expose crusading MPs to the threat of the libel courts, although this was never its intention.47 In addition to human rights organisations using test-case litigation to support individual claimants, individuals themselves may seek support from

40 41 42 43

44 45 46 47

ECtHR, Christine Goodwin v. UK (no. 28957/95), 11 July 2002. ECtHR, Fogarty v. UK (no. 37112/97), 21 November 2001. ECtHR, B. and L. v. UK (no. 36536/02, 13 September 2005. C.O. White and R.C.A. White, The European Convention on Human Rights, (Oxford: Oxford University Press, 2006), p. 251. ECtHR, P.M. v. UK (no. 6638/03), 19 July 2005. ECtHR, A. v. UK (no. 35373/97), 17 December 2002. Ibid., p. 471. Liberty (2002), A v. UK and Parliamentary Privilege, Liberty website.

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independent solicitors or local law centres. One firm of solicitors that is particularly active in supporting human rights cases filed against the UK is the Belfast-based Madden & Finucane, which has lent support to cases involving Irish prisoners. This firm continues to work for those who suffered from prejudice for their Catholic beliefs during the troubles in Ireland. According to Chambers, ‘Madden & Finucane maintains its reputation for advising claimants on civil liberties, human rights, data protection, freedom of information issues and challenges to the decisions of public bodies’.48 In the 87 cases for which there are judgments against the UK government, not one solicitor, barrister, QC or legal advisor has represented more than seven cases. The most frequently used barristers are Lord Anthony Lester (QC) and Mr David Pannick (QC), both of whom work for Blackstone Chambers, a legal practice with particular expertise in human rights. Although we have not provided a statistical breakdown of the organisations that assist individual litigants in decisions, it is interesting to note that amongst the decisions there are also a number of cases supported by another human rights organisation, JUSTICE. This is an all party law reform and human rights body which works to improve the legal system and quality of justice in the UK, in particular by promoting human rights, improving access to justice, improving criminal justice and raising standards of EU justice and home affairs. Legal support in decisions is also given to litigants by a number of other specialised organisations that are not as active at the judgment stage. For example, the Joint Council for the Welfare of Immigrants and the AIRE Centre have intervened in decisions to represent clients in the field of migration. Homosexual reform groups such as Stonewall and Spanner support applicants in cases involving homosexuals. The Children’s Legal Centre in London and the Child Poverty Action Group support decisions involving children. Groups such as the European Roma Rights Centre, the Public Law Project, the National Gypsy Council, Hereford Traveller Support Group and the Romani Rights Association often support cases involving gypsies and travellers. The support group MIND has assisted mentally handicapped applicants. Decisions involving political or electoral issues are often supported by political parties and those involving prisoners and applicants from Northern Ireland are sometimes supported by IRA related associations and the Irish Prisoners’ Support Group. Some applicants in employment related cases are assisted by representation from trade unions (e.g. NALGO – the National and Local Government Officers Association) and some in newspaper/freedom of expression cases are supported by the newspaper

48

Madden and Finucane Solicitors, at http://dspace.dial.pipex.com/town/place/ger47/, accessed 11/4/08.

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itself (e.g. Times, Observer49). The International Society supported a case concerning religious discrimination for Krishna Consciousness. A number of cases are supported by organisations that support individuals in the community, usually by offering free legal advice. Amongst these, cases have come to Strasbourg in which litigants have been represented by the Citizens Advice Bureau as well as by local Law Centres (those in London are particularly active, e.g. Hackney, Hounslow, Camden). Occasionally individuals are represented by legal academics.

4. ECtHR Jurisprudence in the Cases Under Review A survey of the outcome of cases raising discrimination claims under Article 14 ECHR together with a substantive violation of Articles 8, 9, 10 or 11 ECHR shows that the rights claims of individuals representing non-majoritarian groups are vindicated more particularly in relation to certain types of claims than others. For example, in our study, of the 42 cases in which there were found to be violations of Article 8 ECHR, seven are in respect of the rights of homosexuals and a further three are in respect of the rights of transsexuals. In Dudgeon v. UK50 the relationship between homosexuals was held to be an aspect of private life and the law in Northern Ireland which criminalised male homosexual relationships was found to violate that right. Four of the cases raising rights of homosexuals are with regard to the Armed Forces’ old policy of discharging homosexual employees from their posts, regardless of conduct.51 This policy was challenged by these judgments and has subsequently been amended in line with the ECHR and the Human Rights Act 1998. In a series of cases brought by transgender applicants, the UK law on marriage, which made it impossible for someone who had undergone gender reassignment surgery to marry a person of their new opposite sex, was unsuccessfully challenged in Rees v. UK52 and Cossey v. UK.53 Later, the Court reversed this earlier case law in three cases involving male to female transsexuals where the

49

50 51

52 53

ECtHR, Sunday Times v. UK (no. 6538/74), 26 April 1979, and Observer/Guardian v. UK (no. 13585/88), 26 November 1991. ECtHR, Dudgeon v. UK (no. 7525/76), 22 October 1981. See the following: ECtHR, Lustig-Prean and Beckett v. UK (nos. 31417/96; 32377/96), 27 September 1999; Smith and Grady v. UK (nos. 33985/96; 33986/96), 27 September 1999; Perkins and R. v. UK (nos. 43208/98; 44875/98), 22 October 2002; and Beck, Cop and Bazely v. UK (nos. 43535/99; 43536/99; 43537/99), 22 October 2002. ECtHR, Rees v. UK (no. 9532/81), 17 October 1986. ECtHR, Cossey v. UK (no. 10843/84), 27 September 1990.

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applicants had completed gender reassignment surgery and sought to present themselves as males in society. In I. v. UK54 the applicant complained because her birth certificate registered her as a male and was not changeable and this discriminated against her when she was required to show it for administrative purposes such as applying for a loan or a job. Christine Goodwin expressed the same grievances, but also complained about the benefits system that continued to treat her as a man, and that she was unable to marry. Grant complained about the benefit system not treating her as a woman. Although Grant was awarded a Gender Recognition Certificate in 2004, her complaint was about historical discrimination, as she had applied but been refused the benefits that would be available to a woman in 1997 and again in 2002, but failed to get a remedy in the UK Courts. ‘In so far as the Government sought to argue that no breach arose after the Christine Goodwin judgment, this was contrary to the House of Lords’ judgment in Bellinger itself and contrary to Convention caselaw’.55 The Bellinger case had been found to violate Articles 8 and 12 ECHR, but the House of Lords had ‘deemed the formulation of legal norms to remedy that breach best left to Parliament’.56 These successful cases, in which applicants were given financial settlements pending the introduction of new legislation or backdated from the time of their initial complaint in the UK Courts to the materialisation of the Gender Recognition Act 2004, came after a couple of false starts, but with the balance of votes in the ECtHR changing gradually in favour of transsexuals. Although the Cossey case (1991) failed in the ECtHR, by that time, the UK government was criticised by the ECtHR ‘for failing to keep the need for appropriate legal measures in this area under review in the light of scientific and societal developments and stressed the importance of all states doing so’. The trend towards acceptance finally materialised in the cases of I and Christine Goodwin in 2002. The general societal trend towards greater acceptance of transsexuals can be explained by the fact that these are ‘dynamic issues’, in that they can and have been ‘interpreted in the light of developments in social and political attitudes’.57 Other significant rulings under Article 8 are the case of Abdulaziz, Cabales and Balkandali,58 in which no violation of the right to family life was found where, in the context of immigration law, the right of a wife to be joined by her 54 55 56 57 58

ECtHR, I. v. UK (no. 25680/94), 11 July 2002. Paragraph 35 of the Grant v. UK judgment. Ibid., paragraph 13. White and White, ‘The European Convention on Human Rights’, p. 47. ECtHR, Abdulaziz, Cabales and Balkandali v. UK (nos. 9214/80; 9473/81; 9474/81), 28 May 1985.

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husband was not protected in the same way as that of a husband to be joined by his wife. Also, in the case of Buckley v. UK 59 the applicant, a gypsy, argued that an enforcement notice against her issued by the District Council for the removal of her caravans amounted to a violation of Article 8 ECHR in so far as it prevented her from pursuing the traditional lifestyle of a gypsy. The Court found that there was no violation of Article 8 ECHR since member states should be allowed a wide margin of appreciation and in this case procedural safeguards were in place to allow for the weighing up of the respective interests of the applicant in her traditional lifestyle alongside the interest of the local authority in regulating land use. Under Article 9, the right to freedom of thought, conscience and religion, cases have been brought by litigants representing a variety of religious and quasi-religious faiths, beliefs and practices: for example, minority faiths such as Druidism (Chappell v. UK 60), pacifism (Arrowsmith v. UK 61), veganism (H v. UK 62) and recognised religions such as Islam (Ahmad v UK 63) and religions practised by certain cults (Church of X v. UK 64). Article 9 ECHR was not, however, found to extend to include the right to publish a blasphemous poem suggesting that Christ was a practising promiscuous homosexual (Gay News Ltd v. UK 65). Article 10 ECHR, freedom of expression, has equally generated litigation affecting minority and other groups, especially those seeking a form of political expression. In the case of Arrowsmith, the applicant, a pacifist, was convicted under the Incitement to Disaffection Act 1934 for distributing leaflets to troops stationed at an army camp, the contents of which were directed at trying to discourage them from serving in Northern Ireland. The applicant alleged that her right under Article 10 ECHR had been infringed. The European Commission of Human Rights found that there was no doubt of this and the question was whether the interference could be justified under Article 10 paragraph 2. The government argued that the Incitement to Disaffection Act was necessary to protect national security, to prevent disorder and to protect the rights of others. The Commission accepted this, saying that the applicant’s sentence (seven months’ imprisonment) while severe was not in the circumstances so out of proportion to the legitimate aims pursued that this severity in itself

59 60 61 62 63 64 65

ECtHR, Buckley v. UK (no. 20348/92), 25 September 1996. ECtHR, Chappell v. UK (no. 10461/83), 30 March 1989. EComHR, Arrowsmith v UK (no. 7050/75), 16 May 1977. EComHR, H v. UK, 16 EHRR CD 44 (1993). EComHR, Ahmad v. UK, 4 EHRR 126 (1982). EComHR, Church of X v. UK (no. 3798/68), 17 December 1968. EComHR, Gay News Ltd v. UK (no. 8710/79), 7 May 1982.

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could render the interference in Article 10 ECHR unjustifiable. In the case of McLaughlin v. UK66 the applicant claimed that he was prevented from having direct access to the broadcasting media as a result of the broadcasting ban covering any broadcast consisting of or including words where the speaker represented Sinn Fein or where the words supported or solicited support for Sinn Fein. The Commission expressed the opinion that the applicant’s rights under Article 10 ECHR had been interfered with but that the aim of the restrictions was necessary in a democratic society bearing in mind the margin of appreciation permitted to States, the limited interference with the applicant’s rights and the importance of measures against terrorism. Also, regarding claims raising Article 10 ECHR, a key case is that of Sunday Times v. UK67 in which the applicants complained about an injunction that prevented them from publicising a story about thalidomide and its effects on children. This had been a high profile public debate, with several pending law cases in the domestic courts between Distillers Ltd (the manufacturers of thalidomide) and parents of affected children. The Sunday Times wrote an apparently balanced article on the topic, which was forbidden from being published as it was seen by the government to interfere with the proper administration of justice. The House of Lords had made the decision to bring the injunction and had threatened contempt of court. The applicants claimed that this was in breach of Article 10 ECHR and that the government should introduce legislation to overrule the decision of the House of Lords in order to bring the law of contempt of court into line with the ECHR. In UK domestic law, the Phillimore report sets out the terms of contempt of court as ‘a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally’ and as existing to protect not the dignity of the judges but ‘the administration of justice and “the fundamental supremacy of the law.” ’ It draws on Hunt v Clarke68 in which Lord Cotton had stated: ‘If anyone discusses in a paper the rights of a case or the evidence to be given before the case comes on, that, in my opinion, would be a very serious attempt to interfere with the proper administration of justice. It is not necessary that the court should come to the conclusion that a judge or jury will be prejudiced, but if it is calculated to prejudice the proper trial of a cause, that is a contempt, and would be met with the necessary punishment in order to restrain such conduct’. Although the ECtHR agreed that the law was

66 67 68

EComHR, McLaughlin v. UK (no. 18759/91), 9 May 1994. ECtHR, Sunday Times v. UK (no. 6538/74), 26 April 1979. UK High Court, Hunt v. Clarke [1889], 61 L.T. 343.

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accessible and certain in this regard, it deemed that the injunction constituted illegitimate interference with the media’s duty to provide the public with information in a democratic society. It claimed that the article was moderate and well-balanced and that the information it provided was not outweighed by any social need. The ECtHR not only challenged the UK law in this instance, but also sought to ensure that that the Government and the applicant reached a friendly settlement within three months of the judgment. Two cases in which violations of Article 10 ECHR were found also related to the freedom of information. In both the Observer/Guardian v. UK and Sunday Times 2 v. UK 69 the applicants complained against injunctions that prevented them from printing details of the book Spy Catcher, which contained politically sensitive information on M15. The same principles of domestic law were applied to these cases: injunctions and contempt of court. Although the domestic law itself was not challenged, the ECtHR decided that, once the book had been published in the USA, without restrictions on imports, that there was little need to continue to pursue the interests of confidentiality. The UK government was challenged for seeking to maintain the reputation of M15 rather than the interests of national security and instructed to pay compensation and costs to the applicants. Under Article 11 ECHR – the right to freedom of assembly and association – cases have been brought against the UK again regarding forms of assembly for the purposes of respecting the peaceful association of groups and minorities. In the case of Chappell, the right of Druids to celebrate the summer solstice at Stonehenge was claimed, although the interference in this right was found by the Commission to be prescribed by law within the meaning of Article 11 paragraph 2 for the purposes of public safety, preventing damage to the monument, preventing the risk of harm and disruption to the public, and traffic. Similar restrictions on chapel attendance for a prisoner held in a segregated unit were held to be justified under Article 11 paragraph 2.70 In Rai, Allmond and ‘Negotiate Now’ v. UK,71 the applicants were members of an organisation which sought to promote peace in Northern Ireland and in order to promote their views they requested permission to hold a rally in Trafalgar Square. This was refused on the grounds that it was Government policy to refuse permission for any public demonstration or meetings concerning Northern Ireland in Trafalgar Square. The applicants complained that the ban infringed their freedom to manifest their

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ECtHR, Observer/Guardian v. UK (no. 13585/88) 26 November 1991; Sunday Times 2 v. UK (no. 13166/87), 26 November 1991. ECtHR, Childs v. UK (no. 9813/82), 1 March 1983. EComHR, Rai, Allmond and ‘Negotiate Now’ v. UK (no. 25522/94), 6 April 1995.

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beliefs in public, the right to freedom of expression and their right to freedom of peaceful assembly. The Commission responded that the right of the individuals to peaceful assembly had been restricted, but the restriction was sufficiently ‘prescribed by law’ and fell within the Government’s margin of appreciation and was proportionate and justified. Equally, under Article 11 of the Convention, in the case of Wilson, National Union of Journalists and Others v. UK 72, the applicants claimed to have been discriminated against through their refusal to relinquish collective bargaining positions through their trade unions. Each applicant was faced with the choice of relinquishing trade union membership and collective bargaining or forgoing a pay rise. All refused to accept their pay rises. The Employment Protection Act (1973) states that employees should not be prevented or deterred from joining a trade union. However, the employers seemed to breach this but without penalty, for the House of Lords had ruled that the action of the employers was not ‘action (short of dismissal)’. After the House of Lords trial, the law was amended in the interests of employers via the Trade Union Reform and Employment Rights Act (1993), which implied that it was acceptable to discriminate against employees for choosing collective representation so long as the action taken was not beyond that which any reasonable employer would take. However, the Social Charter’s Committee of Independent Experts and the International Labour Organisation Committee on Freedom of Association had both criticised the UK government’s policy. The ECtHR ruled that bribing employees to renounce union members by offering pay rises was in breach of the Convention and the applicants were paid damages. Article 14 ECHR, which does not confer a free standing equality guarantee, but has instead to be used in conjunction with an alleged violation of substantive right under the Convention, has been invoked on a number of occasions by UK litigants, usually without a great deal of success, since the substantive violation is normally considered to be the most important aspect of the case. Claims have involved, for example, the exclusion of a solicitor from interviews of terrorist suspects in Northern Ireland (John Murray v. UK 73), transsexuals (X.,Y., and Z. v. UK 74), disabled persons (Pretty v. UK 75), discriminatory treatment of certain forms of conduct but not others, e.g. sado-masochistic acts between consenting males compared to boxing (Laskey, Jaggard and Brown

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73 74 75

ECtHR, Wilson, National Union of Journalists and Others v. UK (nos. 30668/96; 30671/96; 30678/96), 2 July 2002. ECtHR, John Murray v. UK (no. 18731/91), 8 February 1996. ECtHR, X.,Y., and Z. v. UK (no. 21830/93), 22 April 1997. ECtHR, Pretty v. UK (no. 2346/02), 29 April 2002.

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v. UK 76), and a ban on broadcasting material favourable to Sinn Fein which did not apply to other political parties (McLaughlin v. UK). A claim of race discrimination was successfully made out in the case of East African Asians v. UK 77 in which the husbands of applicants had been refused admission into the UK in circumstances in which wives would have been admitted. The applicants claimed that the immigration legislation being applied discriminated against them on the grounds of their race and colour. The Commission responded that the legislation in question did indeed discriminate against the applicants and that ‘a special importance should be attached to discrimination based on race; that publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity…’. As far as sex discrimination is concerned, in the case of Abdulaziz, mentioned above, the applicants argued that they were victims of a practice of discrimination authorised by Parliament because men who were lawfully resident in the UK (even if not UK nationals) were entitled to be joined by their foreign wives while in order for a husband to join his wife he had to show that she was a citizen of the UK and Colonies who was born in the UK or whose parents had been born there. The Commission noted that the Government’s justification for this difference in treatment was to protect the domestic labour market in a time of rising unemployment but did not accept this view. Instead it concluded that there had been sex discrimination in securing the applicant’s right to respect for family life. The Commission did not however find race discrimination, accepting that most immigration policies do differentiate on the basis of people’s nationality and indirectly their race ethnic origin and possibly their colour. The European Court, giving its opinion on the case, likewise was not convinced by the Government’s arguments regarding employment and the economic activity of men and women. It too concluded that the applicants were victims of sex discrimination (while agreeing with the Commission’s finding of an absence of race discrimination). Finally, there are some interesting patterns to be revealed by looking at minority rights claims over time, particularly from 1980 onwards (only 4 of the 115 cases brought by minorities preceded 1981). Just over one tenth of the judgment cases against the UK government took place in the decade 1981–1990, close to a third were in the next decade (1991–2000), and just over 76

77

ECtHR, Laskey, Jaggard and Brown v. UK (no. 21627/93; 21826/93; 21974/93), 19 February 1997. ECtHR Committee of Ministers Resolution, East African Asians v. UK (nos. 4403/70; 4419/70; 4422/70; 4423/70; 4434/70; 4443/70; 4476/70; 4478/70; 4486/70; 4501/70; 4526/70; 4530/70), 21 March 1994.

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half have been since 2000. In the 1980s, religious, male, ethnic and abused minority cases were not judged in the ECtHR. Throughout the 1990s, disabled minorities were the only minority not heard. During the 2000s, though, all of these minorities were represented. In particular, there was a surge in male applicants seeking redress for the unfair benefits system.

5. Conclusion The above analysis of case law emerging under the HRA and Convention Articles 8, 9 and 14 ECHR suggests that the legislation has made both winners and losers of litigants concerned to promote equality through recourse to human rights arguments. While the Act does little on its face to counter the challenge and critique of human rights discourses mirroring the typical deficiencies of other national and international human rights instruments, it has nevertheless opened up a new constitutional space. In doing so it promises an increased range of litigation strategies for complainants, both women and other non-majority groups, and has amplified the audibility of a previously unheard dialogue on minority rights before the courts. The articulation of such dialogue has clearly brought about a deeper activist engagement with legal and judicial processes. Equally, the response of the UK government to adverse judgments has, overwhelmingly, been to accept them, and over time to make consequential changes to domestic law and practice where appropriate. It is widely acknowledged that detainees, criminal suspects, prisoners, the mentally ill, homosexuals, schoolchildren, journalists and many others in the United Kingdom can trace the strengthening or clarification of their rights and protections to decisions of the European Commission and Court.78 In this respect, it is suggested by Farran that ‘individual complaints taken to Strasbourg benefit a wider sector than simply the applicant’ and that ‘[t]he case law of the Court and the Commission can thus be seen as a human rights lobby’.79 Overall, consideration of minority rights cases in the UK over time, and particularly from the 1980s onwards, reveals a striking pattern of development. Just under one-tenth of judgments against the UK government raising Article 14 discrimination claims took place in the decade 1981–1990, around a quarter were in the next decade (1991–2000), and just under two-thirds have been post 2000. Generally, as the decades progress, we see greater use of the ECtHR on a wider range of minority rights claims. 78 79

Cheney et al., ‘Criminal justice and the Human Rights Act 1998’. Farran, ‘The UK before the European Court’, p. 5.

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One further noteworthy positive development to emerge from the passage of the HRA and increased litigation on fundamental rights in the courts, is the greater role being given to interest groups as third party intervenors. The under-explored question of the potential for interest groups to influence judicial decision-making through third party interventions is likely to be of increasing importance in the future as such interventions offer the opportunity to build a litigation strategy which can help shape the development of case law under the Act. So much had already been recognised in the preHRA case of R v. Smith80 which concerned the defence of provocation to murder, and in which a coalition of feminist groups successfully made a written intervention in the House of Lords in order to represent the interests of battered women. It was particularly apparent in the case of R v. A,81 in which women’s groups were admitted to the court as third party intervenors in a case involving a challenge to ‘rape shield’ law provisions which prohibited the giving of evidence and cross examination about any sexual behaviour of the complainant except with the leave of the court. In this regard, the participation of interest groups in the litigation process may be seen as a good in itself with success not being measured in terms of winning or losing a specific case but rather in raising public awareness of the extent of violence against minorities and other social groups and the need to tackle discrimination and hatebased harms. The number of success stories does accentuate positive developments under the HRA and will continue to give hope to those concerned with broader issues of equality and the capacity of rights discourse to address these. The outcomes highlight that the promise of human rights is not false and that litigation strategies pursued before the courts may be an important mechanism for judicial enterprise which can sometimes enhance the rights of minority groups who have otherwise found themselves marginalised, or unsuccessful, before the parliamentary process. Viewed also as part of an ongoing process of national and European judicial dialogue, it is noteworthy that House of Lords cases such as Ghaidan v. Godin-Mendoza 82 and Bellinger v. Bellinger 83 had been preceded by earlier decisions of the European Court of Human Rights on the point in issue (Christine Goodwin v. UK on the rights of transsexuals and Karner v. Austria 84 on the rights of same-sex couples).

80 81 82 83 84

UK House of Lords, R v. Smith [2001] AC 146, 13 December 2001. UK House of Lords, R v. A [2001] 3 All ER 1, 17 May 2001. UK House of Lords, Ghaidan v. Godin-Mendoza [2004] UKHL 30, 21 June 2004. UK House of Lords, Bellinger v. Bellinger [2003] UKHL 21, 10 April 2003. ECtHR, Karner v. Austria (no. 40016/98), 24 July 2003.

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Furthermore, both cases fed into legislative reform proposals with the Gender Recognition Act 2004 providing for the validity of transsexual marriage and the Civil Partnerships Act 2004 providing same-sex couples with the option of registering their relationship and extending all rights currently conferred on heterosexual couples to same-sex couples. It is indeed in the area of cases involving sexuality/transsexuals, that we can see a general trend toward greater sympathy in the ECtHR, with more cases resulting in the finding of a violation, and a greater tendency for cases to be decided by unanimity rather than majority voting. Post-1999, all judgments regarding sexuality/transsexuals have found a violation and have been unanimously agreed. This reflects the political and social tendency for homosexual and transsexual activity to be regarded as acceptable, and the principle of ‘dynamism’ with regard to such issues. It might also reflect increased pressure group activity in the UK around issues of sexual orientation and gender identity. Nevertheless, human rights activists, litigants and members of minority communities must be ever vigilant in tracking the ways in which the opportunities presented by the HRA are exploited by counter-claimants to women’s and minority rights. Inevitably this means that valuable resources and energy have to be put into securing existing positions against an erosion of existing rights as well as seeking further advancement and equality guarantees. Yet, as the rights culture deepens and broadens and as it becomes increasingly accessible to, and owned by, hitherto marginalised sections of society, there are grounds for hope that human rights arguments will continue to be employed to ameliorate the position of those who lack power and voice in society.

Chapter Ten Conclusions Yorgos Kaminis 1. Introduction The significance of the European Court of Human Rights (ECtHR) for the protection of minorities and vulnerable groups varies considerably across national contexts. In order to understand such differences, it is necessary to illuminate the diverging historical legacies, as well as political and legal traditions that have shaped how minorities are treated in different parts of Europe. The eight countries examined in the current volume can be roughly divided into two categories. The first category comprises countries integrated into the ‘western bloc’ of liberal parliamentary democracy after World War II. While featuring distinct political and constitutional traits, England, France, Germany, Austria and Italy form a group of countries that undoubtedly dispose of a firmly established rule of law (Rule of law, Etat de droit, Rechstaat, Stato di diritto). The second category encompasses Bulgaria, Greece and Turkey. These were incorporated into the family of democratic countries with a certain delay. Bulgaria made this transition following decades of communist regime, while the latter two after repeated states of emergency, mostly, though not exclusively, in the form of military dictatorship. Due to the historically defined conflict amongst these three neighbouring countries, the issue of national minorities is highly sensitive and controversial. In addition, there is no culture of rights that is tolerant to freedom of expression among minorities – not even among religious minorities, particularly when these seek official recognition in public life. On the other hand, western European countries of the first group have for most part (albeit not entirely) resolved their domestic national minorities’ issues at a relatively early stage. They have also been willing to accommodate to a lesser or greater degree the ongoing demands of their minorities. In these countries, freedom of religion is no longer an issue either, as religious rights were addressed centuries ago. They were dramatically resolved through bloody

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religious wars, which devastated Europe in the 16th and 17th centuries. Under the rule of the Ottoman Empire at the time, countries of South-East Europe did not participate in these ‘purgatorial’ wars. Instead, these pending issues have gradually emerged over the past few decades, and the Council of Europe has been called upon to assist. Having resolved their national or religious minorities issues in the public sphere, western European societies instead have been forced to set their records straight with other minorities. They have been confronted with minorities ‘deviating’ from what is embraced as mainstream by the majority – primarily those collectively excluded, i.e. on grounds of their sexual identity, or, as it commonly defined, their sexual orientation. The contribution of the Strasbourg Court has been crucial in this field. The rights of sexual minorities as interpreted by the Court exemplify how the Convention can function as a ‘living instrument’, closely monitoring developments on social mores and prompting national legal structures to adapt accordingly. However, the great adventure of human rights through history is a long and winding road. Old issues give way to new issues, and so forth. Societies that are extremely tolerant to difference may suddenly present an unforeseeably intolerant face. Particularly regarding the subject of the present volume, minorities and marginalised groups, contemporary migrating trends and globalisation in itself may cause other problems to surface. They give rise to obstacles believed to have been overcome, or new challenges with no precedent. This volume’s conclusions will be elaborated in three parts. First, we attempt to distinguish countries in reference to the issues raised by minorities and marginalised groups in the Strasbourg Court. Next, the issue of strategic litigation is examined. Its salience as a form of mobilisation to pursue or defend minority-related rights appears to be growing across Europe. The final part discusses the impact of the Convention and Strasbourg case law on national judicial interpretations.

2. An Initial Attempt to Classify Rule of Law by Topic 2.1 National Minorities The delay in establishing liberal democratic institutions is not the only common ground in the three Southeast European countries examined in the current volume (Turkey, Bulgaria, and Greece). Originating from the dissolution of the Ottoman Empire, these countries have inherited the issue of national minorities, which is traditionally perceived to be intrinsically linked to the territorial integrity of the state. It should not be forgotten that these three countries were in conflict with one another during the Balkan Wars from 1912–1913.

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Turkey is confronted with the most serious minority situation in the eastern provinces of the country, where there is an ongoing armed conflict for years now, with severe impact on the local Kurdish populations. For the first time in its history, the severity and massiveness of the incidents against human rights under the state of emergency, which was declared in 1987, prompted the Court to issue judgements on cases, in which applicants had not exhausted the domestic remedies (for instance, the case of Akdivar). The situation in Greece and Bulgaria is of course far from a state of civil war. However, as exemplified by cases such as the Omo Ilinden, Sidiropoulos, Tourkiki Enose Xanthis etc., national courts persist in their refusal to implement Article 11 of the Convention, despite repeatedly being found in breach by the ECtHR. In effect, they refuse to recognise freedom of association for those citizens who identify themselves as members of national minorities. The reactions of Turkish national courts towards this issue are similar, as it is evidenced in the repeated dissolution of emerging Kurdish political parties. As a result of this stance, adverse judgments have been issued against Turkey on eight occasions. It is significant that Greece and Turkey are identical in their general approach to their own minorities: no minorities are recognised, apart from religious minorities as it is set out in the Treaty of Lausanne, which was bilaterally signed in 1923. On the one hand, Turkey recognises the existence only of non-Muslim minorities. Greece, on the other hand only recognises a Muslim minority. One wonders what Bulgaria’s approach to this same issue would have been, had ratification of the Framework Convention on the Protection of National Minorities (in 1999) not been an implicit requirement for accession to the EU. In contrast, there are no judgments of the Court against Austria or Italy on national minorities. These countries have recognised their national minorities, which enjoy satisfactory safeguards in the domestic regulatory framework. National courts in the three Southeast European countries persistently refuse to faithfully implement Strasbourg case law, a stance that is no doubt connected to the political salience and sensitivity of the minority issues that such case law raises. The right to collective self-determination of citizens belonging to national minorities is received by public opinion and political elites mostly as a threat against territorial integrity. We see, therefore, that the observation made in the Austrian chapter about the conservative mentality prevailing in large sections of the judiciary must also be seen to be pertinent for the three Southeast European countries, especially in reference to the ‘nationally sensitive’ cases. The conservative stance of national judges comes in conflict with the caselaw that has been gradually developed by the Court in the fields of freedom of expression and participation in public life. The Strasbourg Court strictly intervenes when participation in civil society is at stake, whether it concerns

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individual freedom of expression or the right to collective participation in civil society (assembly, association, establishment of political association, etc). In these cases, the Court will maintain the channels of participation in civil society open, thus assuming the role of an actual constitutional court at the European level. 2.2 Immigrants, asylum seekers, Roma In the field of immigration, apparently a different classification is required for the countries in question. A first distinctive group would be those countries with a long-standing past as host countries of economic immigrants (e.g. Austria, France, and Germany). Strasbourg-based litigation patterns against these countries are linked to the fact that petitioning immigrants have already developed firm links with the host country, but for a certain reason (e.g. a criminal conviction) they are faced with deportation. In these cases, the Court often finds these countries in breach of Article 8 of the European Convention of Human Rights (ECHR). It does so because it considers expulsion to be disproportionately onerous towards both the individual and his or her family which may reside in the host country. Turkey and Bulgaria have no noteworthy cases involving foreign immigrants, as they are countries of origin rather than host countries. Greece constitutes a distinct category in itself: a country of origin until recently, Greece has now become a host country. More importantly, it is also an entry route for large scale illegal immigration mainly from Asia and Africa. The Court has vindicated immigrants in cases against Greece, which concern severe infringements of so-called ‘first generation rights’, namely Articles 3 and 5 ECHR. Violations pertain to degrading detention conditions in prisons and police stations, illtreatment in police stations, lengthy and unlawful conditions of detentions etc. Moreover, developments in the Italian case of mass expulsions to Libya, along with detention conditions in the First Aid and Reception Centre of Lampedusa, increase the likelihood of adverse judgments against Italy, for breaches similar to those found in cases originating from Greece (see the interim resolution issued by the Committee of Ministers, and the recent applications considered admissible by the Court, in the Italian chapter of this volume). Whereas the Convention does not guarantee the right to political asylum, Article 3 ECHR does constitute the legal ground upon which the Court applies the non-refoulement principle, if expulsion of an asylum seeker to his or her country of origin carries the risk of exposure to ill treatment. In a rare instance of strategic litigation on behalf of a State, Great Britain participated as an intervening party in the case of Saadi against Italy, aiming to persuade the Court to change its interpretation of Article 3 of the Convention. Among the countries under consideration in this volume, infringements upon the rights of the Roma community are located mainly in Bulgaria and

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Greece. Both of these countries present considerable delay in integrating the Roma into local societies. As the traditional means of livelihood of the Roma are now extinct, their community is now plagued by unemployment, and as a result, a large portion of these populations have resorted to illegal activities. By large, the Roma live under conditions of appalling misery, as their homes are makeshift illegal campsites lacking rudimentary water supply, sewerage facilities, etc. Under these circumstances, the Roma face conditions similar to those of the illegal immigrants as detailed above. In Greece and Bulgaria, they fall victims of infringements of ‘first generation rights’: police brutality, unlawful detentions, unlawful use of lethal weapons etc. The Court has found repeatedly violations of Articles 2, 3 and 5 of the ECHR against these two countries. In some cases, there is also breach of Article 14 of the ECHR, when competent national authorities failed to investigate whether illegal activity against the Roma also had a racist motivation, according to the Strasbourg judgment. 2.3 Homosexuals and Transgender Individuals Regarding claims on behalf of homosexuals and transgender individuals, four countries have no cases brought in front of the Strasbourg Court (Bulgaria, Turkey, Greece and Italy). In the remaining four countries (Austria, France, Great Britain and Germany) the jurisprudence of the Court has been in constant and creative dialogue with the respective national legal orders concerning the rights of homosexuals and transgender individuals. The Court does not hesitate to note the progressive evolution in social perception regarding these rights, and to openly encourage national lawmakers to adapt accordingly. In this way, it has been a decisive player in decriminalising homosexual relationships (Austria, Great Britain), as well as in eliminating discrimination of sexual orientation in the field of family (France) and inheritance law (Great Britain, Austria). In the cases of gender reassignment, Strasbourg case law has assisted interested parties to smoothly integrate into society with their new gender, and to resist discrimination in enjoying social rights due to their gender reassignment (Germany). In the other four countries, the picture is radically different. Total lack of cases in the homosexual and transgender category should most likely be interpreted as a comparative delay in social mores and views, both in the three post-Ottoman countries (Turkey, Bulgaria, Greece), as well as in Italy. 2.4 Religious Minorities Important cases highlighting issues affecting religious minorities are identified in four of the countries under consideration: France, Turkey, Greece and

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Bulgaria. In the first two, the secular nature of the state is the source of the problem. On the other hand, problems in Greece and Bulgaria arise from the fact that religious minorities practice their rights within a legal environment where the dominant Orthodox Church is omnipresent. In the remaining four countries, there are no important petitions brought on behalf of religious minorities. In petitions concerning religious freedom, we can distinguish two categories of cases. One type of cases relates to the use of religious symbols in public. Such cases originate from Turkey and France, where the secularisation principle has the status of constitutional law. In these cases, the Court has recognised a wide margin of appreciation to domestic authorities. It is significant that neither France nor Turkey have been found in breach of Article 9 of the Convention (freedom of religion), though in both countries many members of religious minorities have raised claims before the Court. Even when violation of freedom of religion does occur, the judgments issued are based on other Articles of the Convention. For instance, in cases of attribution of parental responsibility when one of the divorced parents is a Jehovah’s Witnesses, France has been found in breach of Article 8 and Article 14 ECHR (Austria has also been found in breach of the Convention in a similar case). The second type of cases mostly concerns Greece and Bulgaria. In these cases, Article 9 of the Convention dominates, as these cases are purely about matters of religious freedom. Both Greece and Bulgaria traditionally demonstrate a lack of religious pluralism, the Orthodox Church constituting the prevailing figure in interactions with the state. Greece is the first country to have been found in breach of Article 9 ECHR. While in most cases, victims have been Jehovah’s Witnesses, there are also cases brought by Muslims from Western Thrace and concern state involvement in the nomination of the religious leaders (Mufti) of the Muslim community. Similarly to Greece, Bulgaria has been found in breach of the ECHR in cases of state interference with the selection of Muslim religious leaders. In cases concerning Jehovah’s Witnesses, on the other hand, given the established case law from the related Greek cases of the 1990s, Bulgaria generally prefers the friendly settlement option in order to avoid explicit condemnation by the Court.

3. Strategic Litigation Claiming rights through the available judicial remedy is a relatively new means of NGO action, at least for continental Europe. As it is mentioned in the chapter on France, NGOs active in the field of human rights protection are usually of left-wing political background, thus traditionally distrustful of the

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‘bourgeois’ judiciary. Therefore they have tended to use the mass media or political parties and organisations, rather than the courts, in seeking to address and publicise human rights violations. Nevertheless, human rights NGOs, especially those supporting asylum applicants, are increasingly asserting rights before the Strasbourg Court in recent years. This can be seen to reflect a broader trend towards the gradual judicialisation of NGO practices. In recent years, there is an evident shift of stance. Not only national but also international NGOs are increasingly willing to engage in strategic litigation before the Strasbourg Court. A case in point here is the European Roma Rights Centre, which has played a crucial role in assisting individuals to file petitions against Greece and Bulgaria for violations against the Roma. In Bulgaria, international intervention by NGOs had an even greater impact in the early years of transition to democracy, as Western actors (both public bodies and private individuals) financially supported human rights NGOs to bring cases before the Strasbourg Court. An exceptionally well-organised and effective approach to strategic litigation has been developed by Jehovah’s Witnesses. Jehovah’s Witnesses had accumulated considerable experience from persecutions of their community at the international level, which they used to devise a legal strategy centring on the Strasbourg Court. It can be conjectured that, at a certain point in time, the ecclesiastic structures of the Jehovah’s Witnesses proceeded with complementary initiatives to tackle national level discrimination by resorting to the Strasbourg Court to seek redress. Jehovah’s Witnesses are inclined to seek representation in court by attorneys that are also active members of the Church of Jehovah’s Witnesses and they also utilise law firms with successful track records at the Strasbourg Court. In cases regarding the Kurdish minority against Turkey, it seems that attorneys of Kurdish descent have also played a crucial part. The same applies for homosexuals throughout Europe. Attorneys, who were themselves homosexuals, stepped out of the ‘closet’ to represent cases of vital importance for their own rights before national courts and the Strasbourg Court alike. On the other hand, when it comes to groups that are not merely minorities, but also socially marginalised groups, such as the Roma, illegal immigrants or asylum seekers, legal support capable of defending their rights before national and European courts, rarely comes from within their ranks. Nonetheless, it seems that the presence of NGOs representing the rights of immigrants and asylum seekers is gradually becoming stronger. This trend is gaining momentum in Austria, France, Italy and Greece. Victims of discrimination on grounds of sexual orientation are also represented by NGOs. As pointed out in the chapter on Austria, rights mobilisation of homosexuals at the national or European level is prompted by the fact that homosexuals often

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face problems due to national legislation that specifically discriminates against them (i.e. the abolished prohibition of homosexuals in the British armed forces, and the former Article 209 of the Austrian Penal Code). The case of Bulgaria is of particular interest, as in some cases NGOs seem to develop their activity in two directions: lobbying for certain bills to pass in Parliament, and subsequently exercising pressure for implementation of these laws by courts.

4. The Impact of the Strasbourg Case Law on Domestic Legislation In principle, one would expect that the more judgments of the Court against a country, the greater the impact of the Court’s case law on the country’s national legislation. The fewer judgements against a country, the safer it is to assume that the country in question is indeed monitoring developments in the Court’s case law, and that it is in turn adapting its national legislation, administrative procedures and national judicial approaches accordingly. Germany seems to prove this assumption true more than any other country. Based on the country’s Constitutional Court jurisprudence, all state authorities – lawmakers, administration, judiciary – are obliged to apply the domestic legal norms, and to interpret them in the light of the Convention and the judgments of the Strasbourg Court. In this manner, Germany does not have a pattern of systematic violations in areas of rights pertaining to minorities and vulnerable groups. It is also one of the countries with a comparatively small number of adverse judgments issued against it by the Strasbourg Court. This seems to be the result of national courts’ systematic monitoring of ECtHR judgments, not only of judgments against Germany, but also of those issued against third countries. Still, whether the ECtHR judgments constitute a binding force in the national legal order remains a topic of heated discourse and debate amongst the German academia. Of course, of utmost importance is whether the national legal order provides effective domestic remedies when the rights of citizens are violated. One would expect adverse judgments against Austria to be as few as those against Germany. Both countries dispose of a well-established Rechstaat, and the presence of a Constitutional Court accessible to individual citizens. Furthermore, Austria is the sole country in question where the Convention has constitutional status. While its formal equivalence to the national constitution is important, this does not suffice to guarantee successful implementation of the Convention and the Strasbourg case law domestically. In the United Kingdom, on the other hand, due to the sovereignty of Parliament, the Convention has the status of ordinary legislation. Yet, since 1998, national authorities have

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pursued continuous efforts to enhance the influence of ECtHR case law in domestic practices. In the United Kingdom, which is unique for its lack of a written Constitution, the Human Rights Act (HRA) of 1998 determines procedures that do not challenge the doctrine of parliamentary sovereignty. At the same time, however, it ensures that the Parliament will not pass bills that contradict the Convention (‘statement of compatibility’, Section 19 HRA), and that national courts will not apply legislation incompatible with the ECHR (‘declaration of incompatibility’, Section 4 (2) HRA). Furthermore, the HRA imposes an obligation on domestic courts and tribunals to interpret legislation in the lightof the Convention, and it also requires that they take account of the decisions of the Strasbourg institutions in doing so (Section 3 (1) & Section 2 (1) ofthe HRA). Such explicit guarantees are not encountered in other countries. However, Britain still ranks high among countries, with a substantial number of petitions brought against it before the Strasbourg Court. This does not necessarily indicate incomplete implementation of the Convention by British courts. It is also due to the fact that British citizens traditionally take rights violations before the Strasbourg Court for two reasons. Firstly, the right of individual petition was recognised by the UK at an early date, in 1966. Secondly, the Convention was not incorporated into domestic law until 1998 (through the HRA). This means that prior to 1998 citizens could not invoke the Convention before national courts but only in front of the Strasbourg Court. Since 1998, a creative dialogue has developed between the British legal order and the Strasbourg Court, exemplified in cases concerning homosexuals and transgender individuals. The Court’s judgments in favour of I and Goodwyn resulted in the Gender Recognition Act of 2004. In its judgment in the case of Ghaidan v. Godin-Mendoza (2004), the House of Lords implemented Section 3 (1) of the HRA in a very creative manner. It recognised a man’s right to succeed to the tenancy of his deceased same-sex partner, whereas relevant domestic legislation provided only for the existence of a (heterosexual) spouse. On the same matter, the term ‘family members’ was interpreted by the Austrian Constitutional Court on the basis of the original intention of the legislator. At the time that the Austrian Parliament had passed the Rent Act, there was no intention to extent the term ‘family members’ to same-sex partners. Here we have a diametrically opposed approach and interpretation to the one pronounced by the British judge. While the British judge approached the issue in an open-minded spirit as called for by the HRA, the Austrian judge has adopted the most conservative interpretation possible. It becomes evident from the above that the status of the Convention in the hierarchy of a country’s legal norms may not be as important as the spirit in which domestic judges interpret both the Convention and the relevant

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national legal norms. Equally important is a government’s attitude towards implementing the Court’s judgments that raise politically sensitive issues. For example, in Austria the government has systematically opted for a case by case solution in cases concerning aliens, instead of pursuing legislative amendments. The intention is to avoid the political cost that progressive changes in domestic migration law might have, as public opinion seems to be predominately conservative regarding these issues. Regarding the impact of the Convention on domestic legislation in Bulgaria, a number of contradictions can be observed. Due to the communist past, the majority of the population did not enjoy freedom of speech until rather recently. A large portion of the public still identifies democracy with majority rule. The fact that minorities do exist, that they are disempowered politically and therefore in need of protection, is a concept that has not yet prevailed. Even judges themselves are not yet accustomed to providing judicial remedies to minorities in cases raising politically sensitive issues. Neither the judiciary, nor the established academic scholarship has fully accepted that the Convention has a status above ordinary law, which must be taken into account when interpreting domestic laws. For these reasons, the Convention’s influence is rather limited domestically and mainly stems from the Bulgarian cases brought before the Strasbourg Court, often on the initiative of NGOs. Public opinion is divided over the ECtHR: praising its judgements in restitution property cases, on the one hand, but harshly questioning the Court’s jurisprudence on issues of minorities, on the other. The Court seems to have a greater impact in cases concerning freedom of religion, triggering legislative amendments in the field (alternative military service, and registration of religious groups). The case of Greece has many similarities with the Bulgarian one. Greece is the only country in the Balkans that did not have a communist regime, yet, it has repeatedly experienced authoritarian political rule. The only long-lasting, continuous period of democratic stability in the post-World War II period has been after the fall of the dictatorship regime in 1974. The prevailing public opinion still perceives democracy as the principle that the majority rules and the (political) minority, represented by the opposition parties, monitors the government. Non-political minorities, i.e. non-majoritarian groups with distinct national, cultural or regional traits, claiming the right to self-determination, are yet to be accepted. The only significant steps forward, which have been taken, are in the field of freedom of religion. The Strasbourg Court paved the way with its jurisprudence in relation to Article 9 ECHR, and promoted considerable legislative amendments in the field of freedom of religion. However, obstacles remain in the field of freedom of association relating to ethnic minorities. Greek courts are strongly disinclined to accept any attempts of collective expression of a different ethnic-national identity, whether Slavo-Macedonian

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or Turkish, and they have systematically refused to comply with several relevant judgments of the ECtHR against Greece. As in the case of Bulgaria, any attempt toward collective ethnic self-determination is perceived as a threat to the country’s territorial integrity. In other words, the majority perceives the Court’s jurisprudence as a possible threat to the State itself. Turkey follows more or less the same pattern. As for Bulgaria, the Constitution clearly reflects a diffused concern about territorial integrity and about minorities as a threat to it. The vast majority of cases against Turkey are lodged by the Kurdish minority, asserting violation of rights in South-eastern Turkey, due to the veiled, or occasionally unveiled, military confrontation. In recent years religious minorities in Turkey have also been actively seeking redress in the Strasbourg Court. It is noteworthy that Turkey is one of the countries generating the largest number of petitions in the Strasbourg Court. Though Turkey is one of the founding members of the Council of Europe, the Turkish government recognised the right to individual petition as late as 1987. That same year, it also declared a state of emergency in the eastern and south-eastern regions. Apart from cases originating from conditions of armed conflict in the Kurdish regions, Turkey has also been repeatedly found in breach of the right to the freedom of speech (Article 10 of the Convention), and of the right to freedom of association in cases where national authorities restricted or prohibited the establishment of pro–Kurdish political parties (Article 11 ECHR). Whether the Strasbourg Court case law has an impact on rights in Turkey, especially regarding minorities, is still unclear. Nevertheless, the impact of the Convention on domestic laws depends to a large extent on developments pertaining to Turkey’s process of accession to the EU. It is hardly a coincidence that the same year that Turkey recognised the right to individual petition to the Strasbourg Court, it also applied for accession to the European Union. Until recently, litigation against Italy pursued by members of minorities or marginalised groups was limited. To date, the Court’s judgments against Italy mainly concern gaps in the domestic legal system, for instance, in cases concerning issues of privacy and fair trial. Otherwise, the Italian academia and judiciary, judges and attorneys appear to still have limited familiarity with the Convention. This seems to derive from a sort of national self-complacency, expressed in the argument that the Italian Constitution provides for a more advanced form of rights protection than the ECHR and the Strasbourg Court. As elaborated in previous sections, the protection that the Court ensures in practice is hardly limited to the ‘letter of the law’. The strength of the Convention lies in its being a ‘living instrument’ and this is constantly put to test in its ongoing encounter with national social and political actors, who have the obligation to implement it. Accordingly, it can be assumed that the financial

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crisis that broke out in 2009, in conjunction with the conservative parliamentary majority established in Italy in April 2008, will have a considerable impact on human rights, particularly in relation to the rights of immigrants, asylum seekers and Roma. At the same time, both the Italian academic scholarship and civil society have recently displayed a greater interest in the Convention and the Court’s jurisprudence. Under such conditions, an increasing number of Italian petitions are likely to be reviewed by the ECtHR in the near future, especially in issues concerning immigrants, asylum seekers and Roma. France also originally received the Convention and the Strasbourg Court with mixed feelings. Though the country is a founding member of the Council of Europe, France ratified the Convention no earlier than 1974, and recognised individual petition only in 1981. The French believed that their native country, being the homeland of human rights, had no lessons to learn in the field – and thus, they were initially very reluctant towards it, similarly to the self-complacent Italians, as elaborated above. Eventually, however, the French academia, along with judges and attorneys implemented the Convention with due diligence, as domestic public law with supra-legislative status. France ranks very high in its number of petitions brought to the Strasbourg Court. Perhaps this is associated with the fact that French is an official language of the Council of Europe, and perhaps with the fact that the Court resides in Strasbourg, which is French territory. In sum, the ECtHR has evolved into a central judicial forum, in which individuals from various kinds of minorities and vulnerable groups have sought to challenge and remedy historically inherited, national patterns of prejudice and exclusion. Through its case law, it has exerted notable influence in national laws and judicial approaches concerning the rights of minorities. While its impact has been piecemeal and contradictory, over time the ECtHR case law has prompted expansive national approaches to the rights of minorities and marginalised individuals. A crucial intermediate factor shaping the kinds of issues and claims that came under the Court’s purview has been the extent and nature of mobilisation by different legal, minority and civil society actors, a phenomenon that has grown in importance. The receptivity of national courts to the rights of minorities and immigrants has tended to be limited. National judicial responses have been recalcitrant, if not outright resistant, even as their broader approach to the ECHR has grown more attentive to and aware of the Convention and the Strasbourg Court case law. Matters concerning the rights of minorities and immigrants have traditionally been perceived to be subject to the discretion of the executive. National courts have shifted their interpretations to comply with ECtHR case law mainly in areas in which social perceptions had changed and in which sufficient support by political and other influential elites was already present.

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Index advocacy, 52, 60, 182 Alevis, 169, 169n 50, 170n 56, 171, 179 alien(s), 19, 21, 36, 36n 31, 37, 39, 39n 44, 41, 42, 44n 70, 47, 48, 48n 82, 93, 100, 101, 107, 110, 116, 123, 124, 126, 138, 138n 3, 154, 218, See also foreigner(s) alien(s’) law, 36, 47, 48n 82, 93, 101 Aliens’ Employment Act, 36, 42, 36n 31 [Ausländerbeschäftigungsgesetz] Armenian(s), 169, 177 asylum 2, 16, 19, 21, 25, 28, 37, 43, 48, 48n 82, 53, 85, 100, 103, 103n 54, 110, 111, 151, 153, 154, 154n 49, 158, 212, 215 asylum seekers, 6, 15, 16, 19–22, 25, 36, 38, 39, 41, 47, 48, 80, 81, 81n 58, 82n 60, 84n 74, 85, 93, 98, 100, 100n 41, 103, 111, 113, 114, 138n 3, 145, 147, 153, 154n 47, 155, 212–213, 215, 220 asylum procedure, 25, 100, 103, 111, 111n 98 Austrian Freedom Party, 30n 8, 31, 37, 39, 48 Child(ren), 46, 64, 87, 96, 99, 102, 105, 106, 107, 113, 146, 149, 159n 3, 159n 5 176, 193, 194, 196, 197, 201 citizenship, 6, 44, 126, 161, 164n 24, 167n 45, 170 civil servant, 93, 104, 107, 108, 112 communism, 51, 60, 108 compensation law, 167, 167n 45, 171, 173n 76, 173n 77 conditionality, 163–165, 167n 46 conscientious / objection objector(s), 64, 175 Constitution, 22, 23, 29, 53–57, 56n 4, 57n 7, 69, 69n 2, 71–73, 71n 11, 73n 22, 74n 29, 75, 77n 44, 78, 95n 14, 108, 117–120, 117n 7, 117n 8, 118n 11, 119n 15, 119n 17, 122, 122n 26, 137–144, 142n 12, 143n 17, 147, 147n 28, 160–163, 160n 7, 160n 8, 160n 10, 162n 14, 163n 22, 181–183, 188, 216, 217, 219 Constitutional Court, 22, 25, 27, 29, 30, 33, 33n 20, 34, 37, 41, 45, 45n 77, 49, 53, 54, 54n 1, 55n 2, 56, 56n 3, 58, 59, 64, 65, 73, 91, 92, 94, 94n 8, 94n 10, 94n 13, 95n 14, 96–98, 96n 19, 96n 21, 98n 32,

104, 104n 62, 105, 107, 107n 73, 113, 119, 140, 141, 142n 16, 143, 144n 20, 157, 160–162, 161n 12, 162n 16, 166, 168, 182, 212, 216, 217 Council of Europe, 1n 1, 3n 11, 3n 12, 4n 12, 7, 9n 27, 19n 61, 27, 29, 51, 56–59, 56n 5, 57n 5, 78, 78n 50, 92n 1, 92n 3, 97, 102n 48, 109n 90, 112, 114, 117, 128, 153, 154, 157, 159, 159n 1, 160, 165n 32, 171n 61, 172n 66, 173n 72, 173n 75, 179, 210, 219, 220 Council of State, 70n 7, 71–73, 75n 31, 78, 119, 160, 160n 8, 161n 11 Court of Cassation, 53, 72–74, 77, 119, 121n 23, 133, 141, 142, 142n 11, 142n 15, 142n 16, 157, 160, 161n 11 custody, 21, 36, 42, 46, 64, 145n 23, 146, 147, 149, 172 defamation, 31, 146, 191 degrading treatment, 6, 16, 84, 109, 123, 152, 159n 4, 175, see also inhuman treatment and ill-treatment democracy effective political democracy, 5, 5n 15, 16 liberal democracy, 17, 67n 24, 209 militant democracy, 22, 56, 77n 42, 163 denial of the holocaust, 77, see also revisionism deportation, 16, 36, 53, 63, 67, 151, 152n 38, 164n 24, 212 detention, 16, 23, 44, 53, 61, 81, 81n 59, 82n 60, 84, 84n 74, 108, 123, 125, 126, 129, 130, 133–135, 148n 29, 149, 151, 153, 172, 174, 180, 183, 212, 213 discrimination, 3, 6, 7, 17, 17n 49, 18, 24, 32–34, 36, 38, 40, 47, 48n 83, 49, 49n 84, 54, 57, 58, 58n 10, 61, 62, 65, 71, 74, 77, 78, 80n 54, 81n 59, 82, 83, 84, 86–88, 115, 125, 138, 138n 3, 153, 153n 41, 159n 3, 171, 172, 172n 67, 179, 196, 198, 199, 204–206, 213, 215 displacement/displaced, 2, 167, 171–173, 173n 77 dissolution of political parties, 23, 163, 167, 168, 171, 176, 182, 211

242

Index

domestic remedy/remedies, 10, 48, 103, 116, 144, 167, 169, 173, 211, 216 due process, 115, 143n 16, 144, See also fair trial emergency assistance [Notstandshilfe], 21, 36, 44 equality, 17, 18, 24, 29n 2, 32, 33, 33n 20, 53, 71, 75n 31, 78, 80n 54, 90, 140, 142n 12, 160n 5, 161, 164n 26, 169, 185, 203, 205–207 European Union (EU), 11, 21, 23, 32, 38, 38n 38, 43, 45, 68, 78, 79, 89, 90, 100, 128, 141, 143n 17, 156, 163–165, 168–171, 180–182, 188, 197, 211, 219 exhaustion of domestic remedies, 10, 103, 116, 127, 173 expulsion, 22, 25, 39n 44, 80–82, 83n 68, 84, 84n 75, 85, 88, 90, 93, 99, 103, 106, 109–111, 114, 117, 123, 138, 142n 11, 145–147, 149, 150, 152–158, 154n 49, 178n 111, 212 extradition, 43, 44, 93, 147, 152, 157 fair trial, 6n 18, 36, 47, 48, 48n 83, 52, 53, 60, 71, 80, 84, 102, 115, 124, 126, 133, 135, 144, 147, 158, 162n 19, 170, 174, 175, 219, See also due process foreigner(s), 19, 21, 36, 36n 31, 37, 39, 39n 44, 41, 42, 44n 70, 47, 48, 48n 82, 93, 100, 101, 107, 110, 116, 123, 124, 126, 138, 138n 3, 154, 218, See also alien(s) freedom of association, 32, 62, 84, 118n 11, 125, 131, 137, 146, 162, 181, 203, 211, 218, 219 freedom of religion, 48n 83, 63, 83, 84, 86, 87, 93, 162, 177, 179, 179n 118, 209, 214, 218 friendly settlement, 109, 109n 88, 110, 113, 129, 132, 177, 202, 214 Frontex, 100 ‘gag rules’, 67 gender, 21, 24, 32, 33, 33n 20, 53, 82, 85, 149, 169, 172, 179, 185, 195, 196, 199, 207, 213, 217 gender reassignment, 9, 104, 109, 198, 199, 213 German Basic Law, 25, 91, 92, 94–98, 94n 13 headscarf, 40n 46, 83n 69, 88, 168, 171, 178, 178n 111, 179 homosexual(s), 15, 21, 24, 25, 36, 39, 41, 44, 45, 47–49, 82, 83, 85, 90, 197, 198, 200, 205, 207, 213, 215–217

Human Rights Act, 24, 184–186, 184n 7, 189–191, 198, 205–207, 217 ill-treatment, 19, 61, 65, 100, 139, 152n 38 See also inhuman treatment and degrading treatment immigrant(s), 2, 3, 6, 8, 14–16, 19–22, 25, 35, 37–39, 48, 79–83, 92n 4, 115, 123, 127, 138, 138n 2, 139, 145–150, 153–156, 158, 192n 34, 197, 212–213, 215, 220 See also migrant immigration, 15, 22, 25, 28, 39n 44, 48, 100, 101, 155, 156, 158, 158n 58, 199, 204, 212, See also migration inhuman treatment, 98, 128, See also ill-treatment and degrading treatment insult, 31, 77, 106 interpreter, 102, 106, 107, 114 Islam, 39, 47, 63, 76, 163, 175–177, 179, 200 Jehovah’s Witnesses (JW), 14, 21, 46, 62, 63, 64n 14, 64n 19, 87, 124, 214, 215 journalist(s), 25, 31, 77, 144, 153, 155, 175, 181, 188, 203, 205 journalistic freedom, 35, 41 judiciary, 2, 7, 23, 24, 30, 31, 35, 37, 60, 80, 116, 119, 121, 125, 129, 131, 134, 163, 180, 184, 185, 190, 191, 211, 215, 216, 218, 219 judicial review, 1–4, 6, 9, 24, 53, 66, 67, 140, 145, 172, 172n 67, 174, 183, 196 Justice and Development Party [Adalet ve Kalkınma Partisi-AKP], 180 Kurds, 14, 169–173, 170n 56, 175, 176, 182 laicism, 75, 163, 163n 21, 167, 168, 170, 176–179, 181, 182, See also secularism length of proceedings, 46, 116, 131, 147, 158 margin of appreciation, 8, 9, 23, 85, 88, 129, 200, 201, 203, 214 marginalised groups, 12, 21, 24, 28, 36, 37, 47, 50, 52, 53, 68, 104, 115, 116, 128, 175, 210, 215, 219, See also vulnerable groups media, 31, 35, 47, 48, 59, 59n 12, 63, 79, 89, 104, 144, 145, 181, 188, 191, 201, 202, 215 freedom of, 32, 34, 35, 89, 165 migrant(s), 38n 37, 92n 4, 93, 99–106, 114, 155, See also immigrant(s) migration, 47, 101, 103, 110, 197, 218, See also immigration labour migration, 37

Index

minority (ies) ethnic, 6, 14, 26, 38, 38n 38, 40, 41, 120, 123, 126, 131, 134, 218 Minorities’ Act [Volksgruppengesetz], 40, 40n 50 Minority Advisory Council, 40 Minority Assistance Fund, 40 political participation, 18, 40, 137, 171 religious, 15, 21, 24, 36, 41, 46, 47, 71, 75, 80, 83, 87, 90, 115, 116, 147, 209–211, 213–214, 219 rights, 3, 41, 67, 125, 128, 131, 163, 164, 185, 204, 205, 207 sexual, 9, 15, 24, 84, 210 mufti, 63, 130, 131, 214 Muslims, 15, 23, 38–40, 49, 52, 61–63, 76, 83, 86, 88, 124–127, 130–132, 163, 168, 169, 171, 177, 178, 211, 214 national and territorial unity, 58, 163, 168, 176, 181, 182 National socialism, 31, 35 Nazi, 31 non-governmental organisations (NGOs), 14, 21, 22, 34, 39, 45, 47, 48, 49n 84, 50, 58, 58n 11, 60, 61, 79, 81, 81n 59, 81n 60, 82, 90, 127, 145, 149, 150, 152–155, 152n 39, 157, 192, 194n 35, 214–216, 218 non-refoulement, 19, 85, 138, 152, 212 Ombudsman, 54, 128 Orthodox Church, 121, 122, 122n 26, 130, 214 parental rights, 46, 64 Parliament, 12, 24, 37, 44, 45, 60, 71n 11, 89, 90, 94, 94n 9, 108, 111, 119, 142n 16, 150, 154, 156, 165, 181, 184, 188, 190, 191, 196, 199, 204, 216, 217 police, 14, 36n 31, 52, 61, 65, 67, 85, 108, 123, 126, 128, 128n 54, 132, 133, 135, 151, 153, 172, 177, 212, 213 political party(ies), 15, 21, 23, 48, 52–54, 56, 57, 60, 64, 65, 125, 131, 163, 168, 171, 176, 180, 182, 197, 204, 211, 215, 219 prison, 6, 43, 123, 126, 128, 133, 138n 3, 176, 181, 212 property, 23, 60, 68, 74, 80, 115, 124, 130, 137, 144, 148n 29, 149, 158, 162, 169, 170, 172, 173, 177, 180, 184, 195, 218 proportionality, 17, 37, 67, 162, 162n 16 proselytism, 26, 122, 125, 128, 128n 54, 129, 134 provisionary measures, 151

243

psychiatric clinic, 104, 108, 114 Public broadcasting agency [ORF], 34 public order, 16, 135, 156, 157, 162n 17, 177 refugee, 48, 103n 52, 110, 128, 138, 154n 47, 155 status, 43, 100n 42, 100n 92, 103, 111 religion, 3, 15, 38, 46, 48n 83, 57, 61, 63, 64, 76, 78, 79, 79n 52, 79n 53, 83, 84, 86, 87, 93, 115, 121, 122n 26, 124, 129, 138, 149, 161n 13, 162, 163n 21, 169, 169n 50, 170, 175, 177, 179, 179n 118, 185, 200, 209, 214, 218 religious rights, 14, 52, 54, 61, 62, 121, 209 return of confiscated property, 169, 177 residence, 21, 36, 36n 31, 42, 47, 87, 89, 92, 102, 113, 123 residence law, 25, 111 residence permit, 25, 64, 93, 99, 101, 106, 107, 110, 111, 114, 151 Revisionism, 89, 77n 42, See also denial of the holocaust Right wing populism, 31, 37 Roma, 13, 18, 21, 40, 52, 53, 61, 62, 65, 66, 115, 116, 124, 126–128, 132, 150n 36, 158n 58, 197, 212–213, 215, 220 Roman Catholics, 36, 46, 47, 130 secularism, 23, 24, 163n 21, 179, See also laicism secrecy of correspondence, 146, 149 Section 209 (Austrian Criminal Code), 34, 36, 44, 45, 47, 49 security, 13, 15, 16, 18, 24, 36, 37, 38, 43, 47, 56, 57, 64, 66, 75, 84, 88, 125, 151, 154, 156, 157, 158, 162n 17, 174, 175, 176, 181, 200, 202 right to, 6, 16, 162 social, 47, 194, 195 forces, 23, 168, 172, 173, 177 sexual orientation, 24, 34, 36, 45, 47, 79, 80, 82, 84, 85, 207, 210, 213, 215 Sikh, 83, 83n 68, 83n 69, 88, 88n 99 speech, 34, 58, 87, 181, 218, 219 hate speech, 89 state of emergency, 23, 168, 170, 172, 172n 71, 173, 209, 211, 219 State Treaty of Vienna 1955, 27, 41 strategic litigation, 14, 81–83, 90, 126, 145, 148, 150, 151, 156, 157, 170, 205, 206, 210, 212, 214–216 Supreme Administrative Court, 53, 66, 67, 71 Supreme Court, 29n 3, 30, 43, 44, 46, 49, 53, 72, 86, 141, 142

244

Index

tenancy, 46, 217 topographic terms/signs bilingual, 40, 41 torture, 6, 23, 51, 61, 65, 80, 82, 84, 85, 98, 100, 101, 116, 128, 139, 147, 151–153, 159n 4, 170, 172, 174, 180, 181 trade union, 37, 197, 203 transsexual, 9, 24, 86, 195, 196, 198, 199, 203, 206, 207 transgender, 15, 24, 86, 198, 213, 217

Treaty of Lausanne, 131, 159, 211 violence, 43, 53, 62, 65–67, 103, 128, 129, 177, 206 vulnerable groups, 14, 21, 22, 24, 27–90, 115–135, 137–158, 188, 189, 209, 216, 220 See also marginalised groups Works Council, 36, 44, 44n 70