1. Announcements Final Study Guide posted on course web page. Response Question due in Section tomorrow.

2. Part I: ECHR, Rights Claims and the National Legal System I. National Incorporation of the European Convention: the process Three National institutional requirements A. Article 1: obligation to respect HRs B. Article 13: right to effective remedy C. Flexibility in domestic implementation

3. European Convention of 1950 Article 2 Right to Life Article 3 Prohibition of Torture Article 4 Prohibition of slavery Article 5 Right to liberty and security Article 6 Right to Fair Trial Article 7 No punishment without law Article 8 Right to Respect for private life Article 9 Freedom of thought, religion Article 10 Freedom of expression Article 11 Freedom of assembly Article 12 Right to marry Article 13 Right to an effective remedy Article 14 Prohibition of discrimination

4. II. How Convention Rights are Protected in National Legal System A. Empowering the National Judiciary EXAMPLES: FRA: Conseil d’Etat gave priority to an international treaty over a municipal law ITA: Court of Cassation recognizes direct applicability of ECHR case law AUS/SWISS: use ECHR rulings as basis to expand national rights SPA: the ECHR assisted the development of constitutional law when it was a new democracy

5. (II. How Convention Rights Protected, cont.) B. Creating Constitutional Rights in Domestic Law 1. Convention given Statutory Status: UK: Human Rights Act 1998 provides a statutory bill of rights GER: Const. Court upgraded Convention statutory status, stating German Constitution must be read in light of the Convention

6. (II. How Convention Rights Protected, B. Creating Constitutional Rights, cont.) 2. Convention given Constitutional Status -Convention Rights are Supreme EXAMPLES: NET, AUS, BEL, CYP, CZ

7. III. Rights Litigation and the ECHR A. Protection of Right to a Fair Trial (Art 6, European Convention) -60% of cases between 1960-98 invoked Art6 EXAMPLES: 1. Length of Proceedings: Trippel v. Germany (2003) Cwyl v. Poland (2003) 2. Improper Action of National Courts Popescu Nast v. Romania (2003)

8. (III. Rights Litigation, cont.) B. Expansion of Convention Rights Goodwin v. UK (2002) Dispute: Goodwin claimed UK laws violated the Convention rights as applied to transexuals: -Art 14 (prohibition of discrimination) -Art 8 (right to private life) -Art 13 (right to effective remedy) -Art 12 (right to marry and to found a family) ECHR Decision: UK law is in violation of Art 8 (private life) and Art 12 (to marry)

9. IV. Rights Litigation involving Convention Rights in the National Legal System A. Balancing Conflicting Rights: EXAMPLE: Right to Privacy v. Right to Freedom of Expression 1. Naomi Campbell v. the Mirror (2002) Dispute: Campbell’s right to privacy vs. the newspaper’s right to freedom of expression

10. (IV. Right Litigation involving Convention, A. Balancing, cont.) 2. Z.Jones/M.Douglas v. Hello! (2003) Dispute: Jones/Douglas brought suit against Hello! on 13 counts, including violation of their right to privacy. 3. Cases led to the development of new UK national privacy law

11. (IV. Right Litigation involving Convention, B. Problems with Varying Nat’l Implementation EXAMPLE Schröder v. Mail on Sunday/Maerkische Oderzietung (2003) Dispute: The Chancellor’s right to privacy vs. the newspapers’ right to freedom of expression Decision: bans newspaper article in Germany only, not the same paper sold in the UK

12. Part II: Supranational Courts Compared I. Function and Legal System A. ECJ -Ensure the uniform interpretation of EU law -EU Law: diverse policy areas & wide body of law (legislation, treaties, etc.) -Regional jurisdiction (Europe only) -Institution of the European Union

13. (I. Function and Legal System, cont.) B. ECHR -Ensure that member states comply with the European Convention -Single body of law, single policy area (European Convention, human rights) -Regional Jurisdiction (Europe only) -1999, Court and Comm. were combined -Institution of the Council of Europe

14. III. How Does a Case come before the Court?

15. A. How Individuals Bring a Claim before the ECJ: Two Options ECJ National Court Individual Direct Action Preliminary Ruling Procedure

16. B. How Individual Claims come before the ECHR: Pre and Post 1998 Procedures Commission Committee of Ministers ECHR Individual ECHR Individual Optional Stage: Art 46 Pre-1998 ProcessPost 1998 Process Optional Stage: Art 25

17. IV. Rulings: How Binding? Dissenting? Powerful? A. ECJ: - They are binding, monetary penalties for non-compliance -No dissenting opinions: protects national judges so they can uphold EU interest -Powerful rulings that have expanded EU rights and national law.

18. (IV. Rulings, cont.) B. ECHR -Final judgments of the ECHR are binding on member govts. -Dissenting opinions: important as human rights are controversial/complex issues. -Pre-1998 not as powerful with limited ECHR jurisdiction, but enhanced after 1998. -No enforceable penalties, but member govt. comply.

19. V. National Sovereignty (NS) A.ECJ 1. Preservation of NS: ECJ empowers national courts, subsidiarity 2. Limits on NS: Van Gend en Loos and Costa Decisions, opened the EU legal system to individuals to bring claims against their own governments.

20. (V. National Sovereignty, cont.) B. ECHR 1. Preservation of NS: Pre-1998 system, optional clauses Art 25 and Art 46, margin of appreciation 2. Limits on NS: Post 1998 system, compulsory jurisdiction and individual complaints, eliminated Commission and strengthened Court.