European Court of Human Rights - Essay Example

? European Court OF Human Rights The European Union has a common legal system which is the basis of its operations and commonality man dby the legal order. The union is able to achieve its objectives by making new laws and abiding by it. The EU legal order has so far achieved a lot. The European Court of Human Rights is an international court set up by the European Convention on Human Rights (Kloth, 2010). It hears petition relating to countries breaking some laws that uphold and protect human rights. Any country preaching these provisions on human rights touching on political and civil rights are brought before the court. A case can be lodged by any individual or group of individuals of the states that are a party to the provision and other than judgment the court can offer advisory opinion. The Convention was adopted within the context of the Council of Europe, and all the 47 members of the union have accepted the terms therefore they are all a party to the provision (Kloth, 2010). The Court is based in Strasbourg, France. The court was set up in January of 1959 on the argument based on article 19 of the European Convention on Human Rights when its first members were voted in by the Consultative Assembly of the Council of Europe. The convention ensures that the court hold all the party states to account for any human rights violations, and should observe the engagement taken by the states that are party to these conventions, that is making sure that the implementation of the European Convention in the member states of the Council of Europe (Dickson, 1997). The court has been fully recognized by all the 47 member states of the European Union. In 1998, the Court became a full-time institution and the European Commission of Human Rights which usually decides on acceptability of applications, was removed by Protocol eleven. The governments are Being resolved to take steps to make sure that here is togetherness in enforcing of certain rights and freedoms including those not included in Section 1 of the Convention for the guarantee of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 are upheld and in Articles 1 to 3 of the First Protocol to the Convention that was signed at Paris in 1952. Accessing the court is one of the basic rights that the court grants as a guarantee to a fair trial. This right is protected by Article 6 of the European Convention on Human Rights (Dickson, 1997). Even though the text alone of the Convention does not have a specific reference to the right to access the court it is set up by the case law of the European Court of Human Rights that the right to access to court is an inherent part of the fair trial guarantees provided by Article 6. In one of its early decisions, Golder v. UK, the Court held that Article 6 "secures to everyone the right to have any claim related to his civil rights and obligations brought before a court or tribunal. The issue that pertains the accessibility of the court, the important principle is that the state cannot do away with judicial review in specific fields or for certain classes of individuals. A lot of cases challenging state practices in this area have been taken to courts by prisoners. In Golder v The United Kingdom  (Application No. 4451/70, Judgment of 21 February 1975), a prisoner who sought to bring charges to court against his prison guard had his letter withheld by the prison guard and could not reach the a solicitor, and the European Commission of Human rights. The Court found a violation of both his right to correspondence under Article 8 and his right of access to court under Article 6(1). In Campbell and Fell v. The United Kingdom   (Application No. 8342/95, Judgment of 28 June 1984), the prisoner charged was denied a right to meet his solicitor. Even though they were generally given access, they were only allowed to consult with the solicitor within prison guard standing by and hearing what they were saying. In finding a violation of Article 6(1) of the Convention Court held that the absence of privileged contact between lawyer and client amounted to an interference with the right of access to court. It is however not an absolute right for one to access the court and some shortcomings of this right may be working together with the Convention if they have a purpose that is legitimate and are in line with the goal they aim to achieve. The European court of human rights guarantees however "rights that are real and practical. Article 6.1 obliges the states to secure to everybody an effective right to access to court (DIJK, 1993). Legal limitations of this right may be found to be in violation of the Convention if they inconvenience applicant's easier right to access the court. The excess court fees could be the reason behind obvious reasons as to why the court is not out rightly accessible. In the instances of Kreuz v. Poland the Court uphold that while the obligation to pay court fees in civil cases in no way violation of Article 6 per se, any limitation of the right to access to court should justify a lot of requirements. To be in order with Article 6, paragraph 1, a limitation on the right to access should pursue a legitimate goal and there ought to be a right relationship of proportionality between the method employed and the legitimate aim wanted to be achieved (DIJK, 1993). In Kreuz the thing that was of concern was the decline by the domestic courts to give an exemption from court fees that is equal to the average annual salary in the country. Looking at the amount of the fee and the reality that the denial of a waiver in this case has led to discontinuing the claim, the Court realized that the domestic authorities had failed to draw a proper balance between the interest of the state in collecting court fees and the interest of the applicant in bringing his claim to the courts. In these situation and with no evidence of applicant's capability to pay, the Court found the fee too much and the denial of exemption in violation of the individual right to access to court (Garci?a roca & Machetti, 2012). In certain instances, requirement under Article 6.1 could oblige the state to take some right steps so as to secure an effective right to access to court to all people. In the case of Airey v. Ireland , the European Court uphold that the Convention does not clearly provide for a right to free legal aid in civil cases, in some situations it may want the state to provide legal aid in civil disputes (Garci?a roca & Machetti, 2012). Article 6.1 may require the states to avail free legal aid when such assistance become indispensable for securing an effective access to court either because legal representation is mandatory under the domestic law or because of the complexity of the procedure or the case. While the court obliges the states to secure an effective right to access to court, the states may choose the means of securing this right, whether by giving legal help in civil cases, by making the procedure simple or through any other way. Legal help might be needed if legal representation is a must, or if there are difficult issues of law and fact. In Airey, the applicant was looking for legal help so as to obtain a decree of judicial separation from her husband who was abusive in a generally complex procedure. Contrary to that, with regard to the criminal law the convention provide for certain specific fair trial rights for individual who is pleading guilty to criminal offences on top of the other fair trial guarantees of article 6.1. the court has paid attention to the right to access the free legal aid, as per article 6.3 (c) of the convention, as the main means of guaranteeing access to the court for those pleading guilty to criminal offences. The defendant who is facing criminal charges as a right to a legal representation as provided in article 6.3(c) of the Convention it also provide a right to a free legal aid if one does not have financial capability and so the interest of justice demand so (Weissbrodt & wolfrum, 1998). The convention acts oblige the state to guarantee right to a free legal representation if the defendant does not have financial ability to meet the cost or for the sake of interest of justice. First the court is supposed to provide free legal representation if the accused is not able to pay for his lawyer and retain it. It is however upon the court to decide whether one does not have sufficient mean through the accused having to proof beyond any reasonable doubt that he has no sufficient means (Weissbrodt & wolfrum, 1998). Secondly the court has to oblige the state to provide free legal representation if there need be for the interest of justice. This depends heavily on the nature and complexity of the case and the ability of the accused to understand the case and to defend himself in person. If the court does not give enough time for the state lawyer to prepare for the case, it will be deemed a violation of the convention (Mowbray, 2007). Though the state cannot be held liable for all the shortcomings, the state can also be accused to have denied the defendant a right to a fair trial if it fails to sufficiently defendant the accused. The court also has provision that looks in to the issue of reimbursement after the trial is offer. Rights through interpretation of the Convention The Court has set up certain number of guarantees of the right to access to court in civil cases and the right to free legal representation in criminal cases, which look forward to securing a fair trial provisions that will be applied equally to everybody, without regard to their financial status (Mowbray, 2007). These guarantees have been developed over the time and the Council of Europe jurisprudence reflects an increasing concern with access to justice.  The European Court of Human Rights once more have also affirmed that the national security and intelligence agencies are also obliged to respect the rights and freedoms of the European Convention. The National agencies are under the obligation to take appropriate steps to provide protection from unlawful interference and also to distance itself from active infringements of the rights in question to everyone within its jurisdiction. These general obligations also include guaranteeing the compliance with the Convention by intelligence agencies and security services. References MOWBRAY, A. R. (2007). Cases and materials on the European Convention on Human Rights. Oxford, Oxford University Press. WEISSBRODT, D., & WOLFRUM, R. (1998). The Right to a fair trial. Berlin, Springer. Mowbray, A. (2004). The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights. Oxford: Hart Pub. KLOTH, M. (2010). Immunities and the right of access to court under Article 6 of the European Convention on Human Rights. Leiden, Martinus Nijhoff Publishers. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=583745. DICKSON, B. (1997). Human rights and the European Convention: the effects of the convention on the United Kingdom and Ireland. London, Sweet & Maxwell DIJK, P. V. (1993). Access to Court. European System for the Protection of Human Rights. 345- 379. GARCI?A ROCA, J., & SANTOLAYA MACHETTI, P. (2012). Europe of rights a compendium of the European Convention of Human Rights. Leiden, BRILL. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=919588. Read More