Announcements -Final Study Guide will be posted the beginning of next week. -Thursday, May 31 class will be a review session

European Court of Human Rights I. Council of Europe Set up in 1949 (10 nations), today 45 nations Created a Committee of Ministers and Assembly of Parliamentarians

II. European Convention on Human Rights (1950 signed, 1953 came into force) A. Create rights the collective enforcement of the rights stated in the United Nations Universal Declaration of Human Rights (1948)

(II. European Convention on Human Rights, cont.) B. Create a system to enforce these rights 1. European Commission of Human Rights 2. European Court of Human Rights 3. Committee of Ministers of the Council of Europe

(II. European Convention on Human Rights, B. Create a system, cont.) 4. How did complaints come before the ECHR? a. optional clauses - Art 46 (Court’s jurisdiction) - Art 25 (individual petitions) b. the process

The pre-1998 Process: Human Rights Complaint lodged > Commission (determines admissibility) If admissible: attempt at a friendly settlement, if fails then Commission draws up report Then case is sent: Commission > Committee of Ministers > judgment given by ECHR/or adjudicative function of Committee of Ministers

by 1995: all 30 states accepted optional clauses as compulsory and litigation increases

III. The New European Court of Human Rights (1998) A. Institutional Changes - The Commission and Court functions were combined - The Committee of Ministers lost their adjudicative mechanism B. Organization of the Court - 45 judges, elected for 6 year terms

(III. New ECHR, cont.) C. Procedure before the Court 1. General: any member state or individual claiming to be a victim of a violation may lodge directly with the Court 2. Admissibility Procedure Indiv. Complaint > ECHR section > Comm./Chamber 3. Procedure on the Merits

(III. New ECHR, C. Procedures before the Court, cont.) 4. Judgments chambers decide by majority vote dissenting opinions chamber judgment can be appealed to Grand Chambers 5. Advisory Opinions

(III. New ECHR, cont.) D. Sunday Times Case (1979) - Public’s Right to Know & Newspaper’s Freedom of Expression (Art 10) Vs. - UK Govt. interest in protecting a right to a fair trial (Art 6)

IV. ECJ and ECHR compared A. Judges: Equal to Member States ECJ: 25, one from each country ECHR: 45 judges, does not require one from each country

(IV. ECJ and ECHR compared, cont.) B. Judicial Review and decisions ECJ: concrete review, wider scope, no dissenting opinions ECHR: concrete review, advisory opinions, dissenting opinions

(IV. ECJ and ECHR compared, cont.) C. Access ECJ: individuals, national governments, EU institutions ECHR: national governments, Commission and now individuals

(IV. ECJ and ECHR compared, cont.) D. Autonomy and Relationship to National Legal System ECJ: EU constitutional doctrine empowered EU law over national law, preliminary ruling procedure empowered national courts Subsidiarity: (Treaty of Rome, Art.5) In policy areas where the EU does not have clear jurisdiction or competence, the EU should only act if the objectives cannot be sufficiently achieved by member states.

IV. ECJ and ECHR compared, D. Autonomy and Nat’l Legal System,cont.) ECHR: incorporation of Convention into national law has varied, traditional separation of national and international law applies. Margin of Appreciation: (ECHR developed in Lawless decision) the degree of deference afforded to contracting states in implementing and applying Convention rights.

V. The Impact of the European Supranational Legal Systems Democracy and Legitimacy: The ECJ and ECHR can serve to ensure that national governments implement the rights that are available to individuals in the Treaty and Convention, but these courts can also expand the meaning and scope of supranational law with the effect of undermining national law and national sovereignty. Is this institutional arrangement democratic? If so, how do these courts uphold their legitimacy? If not, how have they tarnished their legitimacy as democratic institutions?