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ALL CON & AD notes! [Lecture NOTES]
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Constitution and administrative law notes *FULL*!!
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Constitutionand
Administrative
ECHR Notes
,Lecture 1
(i) The history of the ECHR 1950:
• 10/12/1948: the 1st global expression of rights to which all human beings are inherently
entitled occurred when, at the Palais de Chaillot, in Paris, the UN General Assembly
adopted the Universal Declaration of Human Rights
• 05/05/1949: The Council of Europe, which oversees the ECHR, was created by 10
countries: UK, Ireland, Sweden, Denmark, Norway, Belgium, Netherlands, Luxembourg,
Italy and France
• 04/11/1950: the 1st exclusively European expression of human rights occurred when, in
Rome, all 10 Council members signed the ECHR, which was ratified and came into force
on 03/09/1953
• 13/07/1950: significantly, since it had been the principal cause of the Council’s creation,
Germany became the 13th member state
• By contrast, the European Union (EU) would be created, some years later, for purely
economic reasons
NB: VERY IMPORTANT DISTINCTION:
• It is critical that we grasp, at an early stage, that there is no link whatsoever
between the ECHR and the EU
• Let’s immediately repeat this to ourselves once again: there is no link whatsoever
between the ECHR and the EU
• The ECHR and the EU - which we’ll consider, in more detail, in ECHR lecture 3 - are
entirely separate entities, which were created for different reasons, with different
institutions, in different locations, with different personnel
Protocols / updates:
• Inevitably, given that it was drafted in 1950, the ECHR has required updates, of
which there have, so far, been 5, and which are known as protocols
• The 1st Protocol was added in Paris on 20/03/1952
• The most recent Protocol was added a surprisingly long time ago (over half a century
ago), in Strasbourg on 20/01/1966
• There has, therefore, been no update for over 50 years
• Each ECHR Article, from 2 up to 12, contains a ‘human right and fundamental
freedom’ to be protected, some key Articles being:
– Article 2: Right to Life
– Article 3: Prohibition of torture and inhuman or degrading treatment or
punishment.
– Article 5: Right to liberty and security of person;
– Article 6: Right to a fair trial; and
– Article 8: Right to respect for private and family life
– Article 10: Right to freedom of expression
– Article 1 Protocol 1: Right to peaceful enjoyment of one’s possessions
, • ECHR Article 1, and Articles 13 upwards, contain further protection of rights, some
key Articles being:
– Article 1: Member states shall secure ECHR rights;
– Article 13: Right to an effective remedy for a violation;
– Article 14: Enjoyment of rights shall be without discrimination;
– Article 15: Right of a member state to derogate; and
– Article 34: Right to claim re a violation
(ii) Which countries make up the Council of Europe today?
There are 3 European countries which are, today, not members of
the Council of Europe are:
• (i) Belarus
• (ii) Kazakhstan; and
• (iii) the Vatican City
All other European countries are Council members
(iii) The location of the key ECHR institutions:
• The Council of Europe is situated in Strasbourg, in France
• The ECHR’s court, the European Court of Human Rights (ECtHR), is also situated in
Strasbourg
The aim of the setting up of the Council of Europe, and the drafting, and subsequent
ratification, of the ECHR, was to prevent a repeat of atrocities such as the use of gas
chambers in WW2
To what extent do we feel the Council has achieved its aim?
• Unfortunately, despite the praiseworthy aim of the Council of Europe, in drafting
the ECHR, of preventing a repeat of the humanitarian atrocities which occurred
during World War 2, it has not managed completely to achieve this objective
• A real low point, since the ECHR was signed on 4 November 1950, occurred on the
evening of Tuesday 11 July 1995, when Serbian soldiers rounded up over 8,000
Bosnian Muslim men and boys in Srebrenica, in Bosnia, drove them to a forest
clearing, made them all kneel down, and, from behind, shot them all dead.
On Wednesday 22 November 2017, the international Criminal Court for the Former
Yugoslavia, based in the Hague, in the Netherlands, finally, over 22 years after the incident,
gave some closure to the surviving relatives of the victims by ruling, that Ratko Mladic, the
Bosnian Serb army commander who ordered the slaughter at Srebrenica, was guilty of
genocide (‘a systematic attempt to eradicate a people’) and crimes against humanity
, • In defence of the Council, at the time the Srebrenica atrocity took place in July
1995, neither Bosnia and Herzegovina, who joined on 24/04/2002, nor Serbia, who
joined on 03/04/2003, were members, because they were both, at that time, part of
the former Yugoslavia, the whole point of the struggle in the Balkans having been
that the various elements of the former Yugoslavia wanted to be independent
countries
The question of the extent to which the Council of Europe has achieved its aims is,
therefore, a difficult one to answer
Additional information: For those of us who share my interest in the case, on Wednesday
29 November 2017, exactly a week after the International Criminal Court for the Former
Yugoslavia, based in the Hague in the Netherlands, found Ratko Mladic, the Bosnian Serb
army commander who ordered the slaughter at Srebrenica, guilty of genocide and crimes
against humanity, Slobodan Praljak, a former Bosnian Croat general, killed himself while
standing trial at the court.
• In September 1991, Praljak joined the Croatian Republic of Herzeg-Bosnia, whose
aim was to secede from Bosnia & Herzegovina, and unite with Croatia, and, from 24
July to 8 November 1993, while he was Chief of Staff of the Croatian Defence
Council, Praljak was accused of failing to prevent the armed forces from committing
many war crimes he could have stopped (eg detaining muslims in Prozor from July to
August 1993, murdering muslims and destroying mosques in Mostar, and destroying
the famous old bridge in Mostar)
• Being a Bosnian Croat rather than a Bosnian Serb, Praljak was not involved in
Srebrenica, but, during 1993, he was the general in charge of the Dretelj
concentration camp where Bosnian Muslim men were brutalized, starved, and even
killed
• Although Praljak was accused of ordering the destruction of Mostar’s old bridge on 8
November 1993, causing ‘disproportionate damage to the muslim civilian
population’, the court accepted that the bridge was a legitimate military target
• The 17th century bridge had stood for 427 years, until it was destroyed on 9
November 1993
• The bridge has since been rebuilt, with reconstruction having started on 7 June 2001,
and having been completed on 23 July 2004
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