Course: European Criminal Law SS 2009 Hubert Hinterhofer

European Criminal Law – Council of Europe Fundamentals – Eldest political organization in Europe – International Organization – 47 countries of Europe – Not to be mixed up European Council (summits of the Heads of States of the EU) Council of the EU

European Criminal Law – Council of Europe Goals of the Council – Promotion of Democracy – Protection of Human Rights Founded: Treaty of London 1949 (10 States) European Convention on Human Rights (ECHR) – 1950 – Multilateral Treaty – First international legal instrument safeguarding human rights – 13 Additional Protocols European Court of Human Rights (1959)

European Criminal Law – Council of Europe Structure, Organization and Aims – 47 member states (22 countries from Central and Eastern Europe) – Each MS of the EU is a MS of the Council of Europe – Others e.g.: Russian Federation, Switzerland, Turkey – Based in Strasbourg

European Criminal Law – Council of Europe Structure, Organization and Aims – Organization Committee of Ministers – 47 Ministers of Foreign Affairs/Strasbourg-based Deputies – Decision-making body – Governmental body Parliamentary Assembly – 636 members from the 47 national parliaments – Advising body Secretary General and its Office – 5 year term – Directs the activities of the Council

European Criminal Law – Council of Europe Structure, Organization and Aims – Organization European Court of Human Rights – Strasbourg – Established by the ECHR – Judicial organ – Admissibility Procedures – Procedures on the merits of the case – Judges elected for a 6-year term (re-election possible) – Judges elected by the Parliamentary Assembly – One judge for each MS (47 judges) – Since 1998: full-time-court with permanent sessions – Goal: Observes the MS regarding the ECHR

European Criminal Law – Council of Europe Structure, Organization and Aims – Aims Supports human rights, parliamentary democracy and the rule of law “Human Rights Watchdog” Development of international agreements aiming at the harmonization of social and legal practices – Legal Instruments Treaties/Conventions – About 200 so far – Different topics (e.g.: organized crime, prevention of torture, data protection) Recommendations – Guidelines to Governments of the MS – Different topics: legal mattes, health, education

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Committee on Crime Prevention (ECCP) 1958 Coordination of activities regarding crime prevention and crime control Based in Strasbourg Plenary session every year

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Committee on Crime Prevention (ECCP) Tasks – Identifies priorities – Proposals to the Committee of Ministers regarding criminal law – Elaborates Conventions, Recommendations and Reports – Organizes criminological research conferences

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Convention on Human Rights (ECHR) Signed in 1950 Entry into force: 1953 Legal form – Treaty – Ratification – Transformation into national law of MS: Constitutional Law/ordinary Federal Law

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Convention on Human Rights (ECHR) Relation to the EU – Legally Art 6 section 2 TEU, Art 52 Charter of Human Rights: respect for the Human Rights being part of the ECHR Wide coherence – Practically European Court of Human Rights not competent regarding EU-law, only ECJ Different jurisdiction (ECouHR/ECJ) possible Treaty of Lisbon: EU could become part of the ECHR as a whole

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Convention on Human Rights (ECHR) Contains a number of Fundamental Rights and Freedoms, such as – Right to life – Prohibition of torture – Right to a fair trial – No punishment without law – Freedom of expression More rights guaranteed in Additional Protocols

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Fundamentals – Enforcement-machinery on an international level – Established by the ECHR – Set up in 1959 – Strasbourg – Tasks Individual Complaints Inter-State petitions Suggestions (interpretation)

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Fundamentals – Organization of the Court Since 1998 (Protocol No 11) restructured Complaints referred directly to the Court (Committee of Ministers is not involved any longer) 3 different panels: Board, Chamber, Grand Chamber

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Fundamentals – Organization of the Court Board > 3 Judges > Admissibility of individual complaints > Unanimity Chamber > 7 judges > Admissibility and Merits of the application > Investigation possible > In Principle: public hearings

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Fundamentals – Organization of the Court Grand Chamber > 17 judges > At the request of a party > Interpretation or application of the ECHR > Serious issues of general importance > Final

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Consequences of the judgments of the ECouHR – Declaratory judgments Declares that the ECHR has been violated (or not) No competence to quash decisions of domestic courts No competence to abolish or amend domestic legislation

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Consequences of the judgments of the ECouHR – Restitutio in integrum Legal obligation to stop the violation of the ECHR Obligation to full restitution Amendment of legal order of MS Release of persons being unlawfully detained – Award for Just Satisfaction Compensation for pecuniary loss Compensation for legal costs Restitution of property

European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Consequences of the judgments of the ECouHR – Supervision of the enforcement Committee of Ministers Ensures just satisfaction Activities for necessary changes in the laws of the MS Austria (§ 363a Austrian Code of Criminal Procedure) > Possibility to restart a national criminal procedure > Violation of the ECHR in the Austrian criminal procedure (especially Art 6 ECHR) > Request of the convicted person