The Jurisdiction of the European Court of Human Rights - Case Study Example

The Jurisdiction of the European Court of Human Rights Introduction This paper is tasked to criticize, evaluate, assess and interpret the case application of Banković and Others v. Belgium and 16 Other Contracting States. The action was filed in October, 1999. On November, 14, 2000, it was forwarded by the Chamber of the First Section of the European Court of Human Rights (or Court for brevity) to the Grand Chamber of the Court. The latter heard the case on October 24, 2001, with respect to the admissibility of the application. The complaint was instituted by six Yugoslavians, all residents of Belgrade, then of the Federal Republic of Yugoslavia, for themselves and for certain deceased relatives. It all started when the North Atlantic Treaty Organization (or NATO for short) bombed the premises of the Radio-Television Serbia in Belgrade in the midst of the Kosovo conflict. In one of the bombardment attacks in the morning of April 23, 1999, a NATO aircraft struck one building of the radio and television network killing sixteen persons and wounding sixteen others. The assault led to the filing of the case against NATO member states, numbering seventeen in all. The respondents are also among the Contracting States to the European Convention on Human Rights which are Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom. (BANKOVIĆ AND OTHERS V. BELGIUM AND 16 OTHER CONTRACTING STATES. European Court of Human Rights. application no. 52207/99. [internet]. Accessed March 6, 2010. Available at: ). The main thrust of the complaint was that the bombing was carried out by NATO in violation of Articles 2, 10 and 13 of the European Convention on Human Rights, likewise hereinafter referred to as the Convention. The said Article 2 provides that all persons have a right to life which is afforded full protection under the law. The only exception to this rule is when the intentional deprivation of life is by reason of an imposition of a penalty upon a court sentence resulting from a criminal conviction provided for by law. Upon the other hand, Article 10 was alleged by the applicants as a ground for their action, as a matter of course, in view of the fact that the target of the attack was a media entity. Article 10 lays down the dictum that every person is entitled to the freedom to express or to speak out his mind albeit the same may be restrained according to the limitations which statutes of the Contracting States prescribe. Lastly, Article 13 of the Convention mandates that those whose rights and liberties are violated or encroached upon under the provisions of the Convention must be afforded an effective remedy or relief even if the perpetrators have acted in official capacity. (European Convention on Human Rights and Fundamental Freedoms. COUNCIL OF EUROPE. European Treaties. Press for Change [internet]). The focal issue in this discussion is the statement of the Court which declares that it is the obligation of the Court to consider the special character of the Convention pertaining to its role in the maintenance of European public order for the purpose of protecting persons or individuals. It also points out that the Convention has been covenanted to ensure that the engagements undertaken by the High Contracting Parties, meaning the treaty signatories, are observed. The latter principle is evident in the setting up of the European Commission of Human Rights and of the Court, both specified in Article 19 of the Convention. Since the principal matter which was resolved by the Court refers to the admissibility of the application, the arguments and debate presented in this treatise will center on that question. Some comments and opinions from literary sources will be considered for inclusion here. The Convention It is necessary to have knowledge of the history of the Convention in assessing the case at hand. Formally denominated as the Convention for the Protection of Human Rights and Fundamental Freedoms, the Convention is a treaty entered into by the signatory states intended for the protection of human rights and fundamental freedoms in Europe. The indicated venue or site of coverage for the individual liberties seems to be the source of the dispute under review which aspect will be taken up later in the main discussion. Entered into as a covenant among the members of the Council of Europe, the treaty was consummated in 1950 and became effective on September 3, 1953. New states joined in the membership roster thereafter as the number of the states which signified adherence to the Convention grew to twenty three (23) in 1989 and to forty (40) in 1997. (The European Convention on Human Rights. UK LAW ONLINE. [internet]). The United Kingdom was the leading prime mover in the drafting of the treaty and the influence was strong enough that the Convention does not only consider complaints from governments, it welcomes redress for grievances coming from individual persons as well. British nationals were afforded that privilege in 1966. In view of the growing interests in asserting substantial personal civil liberties under the Convention, both the European Commission on Human Rights and the European Court of Human Rights have become agencies of heightened significance and have been dutifully vigorous. As a matter of fact, people in the region within the scope covered by the Convention developed a stronger awareness of the need for a truly defined bill of rights in their respective states. While it is true that English law has historic origins in recognized individual rights and freedoms dating back to ancient times with the Magna Carta and the Bill of Rights already in place as early as in 1689, the notion favoring a documented set of legislated human privileges was rekindled after the Convention was made into a formal and binding treaty. Pursuant to its mandate, a Court was established with the authority to issue judgments for the award of damages which had already been practiced in so many cases before the Court. (CASE OF A. v. THE UNITED KINGDOM (100/1997/884/1096) JUDGMENT STRASBOURG 23 September 1998. EUROPEAN COURT OF HUMAN RIGHTS. [internet]). The remarkable and persuasive influence of the Convention has been apparent. For instance, it is very important to observe that even the Human Rights Act 1998 which was enacted into law in the United Kingdom was passed purportedly to make more effective the Convention as far as concerning the rights and freedoms which it guarantees. This is made very explicit by the said UK law in its preamble. (Human Rights Act 1998. UK Public Acts 1998. OPSI Office of Public Sector Information. [internet]). As the name speaks for itself, the Convention enumerates the basic rights and fundamental freedoms among which are the rights to life, liberty, security, fair trial, privacy and several others. (Basic Rights and Freedoms under the Convention. Edited Guide Entry. BBC. [internet]). The treaty is thus supposedly aimed at giving the constituencies of European states their fundamental civil and political rights which were envisioned by the members of the Council of Europe to be what every person must have. All those goals were in turn premised on countering the horrible experiences during World War II and were thus the embodiment of a serious attempt to avoid any vestige of totalitarian oppression and brutality in prospective periods as had happened in Western Europe, among the other places so affected in the international landscape. At that time and right away thereafter, in view of the sad occurrences under certain dictatorships, the basic components of human liberties and equality among men under the rule of law underscored political rights including free election. (Barclay and others v v Secretary of State for Justice and others. Judgment given on 1 December 2009. The Supreme Court. [2009] UKSC 9. [internet].) With all the foregoing backdrops, this essay will proceed to the questions of who are the people covered by the Convention and what cases does it cover. It will finally likewise be queried as to when the Convention applies. In short, there is a need to know what circumstances are embraced under the operation of the Convention. In the legal sense, the inquiry has to be directed into the jurisdiction of the Court which the Convention had created. Stated in another way, it has to be determined when, where and over whom does the Court exercise its judicial powers under the Convention in conjunction with the rules and principles of international law. Article 1 of the Convention is very specific. It provides that the signatories to the treaty are under obligation to secure to all the people within their jurisdiction the rights and freedoms enumerated in Section 1 of the Convention. Were the applicants covered as persons within the jurisdiction of the High Contracting Parties when the bombardment of the radio-television network was carried out? The answer is definitely in the negative. They were not. During the time of the bombing of the Radio-Television Serbia headquarters, Banković and his co-applicants and their deceased relatives, Serbia was not a member of the Convention and, therefore, they were not within the reach of jurisdiction of the Court. The bombing party, NATO, was also found by the Court as not having Serbia within its (NATO’s) effective control or that of its members. (Committee on Legal Affairs and Human Rights. as reported by Herta DÄUBLER-GMELIN The state of human rights in Europe: the need to eradicate Impunity. Parliamentary Assembly. Doc. No. 11934. 3 June 2009. par 60. [internet]). Interestingly and curiously enough, this interpretative judicial analysis was not applied in the case of Case of Issa and Others v. Turkey where the complainants sued for illegal arrest and detention, maltreatment and for the death of their relatives during military exercises perpetrated in April 1995 by the Turkish Army in the north of Iraq. (CASE OF ISSA AND OTHERS v. TURKEY. The European Court of Human Rights (Second Section). (Application no. 31821/96) JUDGMENT STRASBOURG 16 November 2004. [internet]). As a matter of fact, the variance in construction or interpretation is the meat of the big debates on the issue although going back to the ordinary meaning of Article 1 of the Convention will readily give the understanding that the applicants were not covered by the Convention because they were nationals or constituents of a country which was then not a signatory to the treaty. At this juncture and considering the situations under which the provisions of the Convention are to be construed or understood, it is important to note that the Convention has been asserted for quite a time as the constitutional foundation of human rights matters and aspects in the entirety of Europe. (Jacobs. Francis. The impact of European Convention on Human Rights. THE EUROPEAN CONVENTION ON HUMAN RIGHTS, THE EU CHARTER OF FUNDAMENTAL RIGHTS AND THE EUROPEAN COURT OF JUSTICE. [internet]). An interpretation here and another interpretation there can sometimes be a source of controversy especially if the time interval is not significant between two constructions and the circumstances surrounding the dispute in question are almost the same. Anent the seeming discrepancy between the above-cited Banković and Issa suits, it may be pertinent to mention the thoughts of the judges of the International Court of Justice which declared in its advisory opinion that countries who are members to a treaty must be accountable under the terms and conditions specified in it even if those signatories exercise jurisdiction outside of their domestic boundaries or territories. This ruling came under the presumed dictum that any state must not be tolerated to escape from its human rights obligations simply because the questioned exercise or conduct was done or carried not within its national territory, it being that the proponents for the protection of human rights who signed the treaty could not have that intention when they drafted the covenant. (From Legal Theory to Policy Tools: International Humanitarian Law and International Human Rights Law in the Occupied Palestinian Territory POLICY BRIEF May 2007. p 4. PROGRAM ON HUMANITARIAN POLICY AND CONFLICT RESEARCH HARVARD UNIVERSITY. [internet]). Assessment and Conclusion It is true that the Convention attracted, and still attracts, other states expected to ratify the treaty. (UK Constitution “we, the people…” [internet]). Yet, it is equally a factual truth that during the bomb attacks which injured the complainants and killed some members of their kin or families, Serbia, the host country and under which the complainants were citizens or constituents, was not a member of the European Convention on Human Rights and therefore, the people within its jurisdiction do not enjoy the coverage of Article 1 of the Convention. Saying it in another and blunt manner, the complainants did not have the personality required by the treaty for them to file the application. This is to reiterate that the ordinary meaning of jurisdiction declares so and as given the same interpretation by the Court. It is a universal precept in legal disciplines that what is not included must be excluded. Serbia being not a member of the Convention, it has to be excluded from the coverage of the international covenant. Along that line, it subjects and citizens could not then claim that their rights and freedoms can find redress within the spirit of the Convention. The question may be posed as to why then was there another standard for construction in the Issa case. It is confessed that the jurisdiction of the Court has been put to test in similar situations, that is, in an incident, for example, where a treaty signatory conducts military actions outside of its own territorial limits, metes and bounds. (Kirchner, Stefan. The Jurisdiction of the European Court of Human Rights and Armed Conflicts. Institute for Public Law, University of Goettingen. May 12, 2003. [internet].). The application in the Bancović case pertains to an incident which occurred outside the jurisdiction of the treaty members. Nevertheless, it cannot also be denied that the High Contracting Parties as members of the NATO at the same time could exercise military supremacy and might in Serbia. To expediently rule that the application is not admissible simply because of the procedural requirement as to jurisdiction will seem to say that one can do good here and can do bad there. It is as if to convey the message that human rights apply in one location and do not apply in another location. It has to be considered though that case laws evolve in the passing of time. National supreme courts or the highest tribunals in countries around the world reverse their own decisions from time to time. The European Court of Human Rights can just be in that same category. In the final analysis, it has to be acknowledged that judges are humans and those sitting in the benches of the Court are people who can err or who have to modify perceived standards in order to conform to the needs, demands and exigencies of the moment. Maybe a hundred years ago, marriages between parties of the same gender were not only taboos but truly condemnable ideas or notions. That is no longer so today. Within these purviews, the Bancović ruling may be correct or may be wrong. Only history will tell. Whatever the ultimate judgment will be, one thing is certain. Human rights will remain as inherent properties of every man. References BANKOVIĆ AND OTHERS V. BELGIUM AND 16 OTHER CONTRACTING STATES. European Court of Human Rights. application no. 52207/99. [internet]. Accessed March 6, 2010. Available at: Barclay and others v v Secretary of State for Justice and others. Judgment given on 1 December 2009. The Supreme Court. [2009] UKSC 9. [internet]. Accessed March 6, 2010. Available at: Basic Rights and Freedoms under the Convention. Edited Guide Entry. BBC. [internet]. Accessed March 6, 2010. Available at: CASE OF A. v. THE UNITED KINGDOM (100/1997/884/1096) JUDGMENT STRASBOURG 23 September 1998. EUROPEAN COURT OF HUMAN RIGHTS. [internet] Accessed March 6, 2010. Available at: CASE OF ISSA AND OTHERS v. TURKEY. The European Court of Human Rights (Second Section). (Application no. 31821/96) JUDGMENT STRASBOURG 16 November 2004. [internet] Accessed March 6, 2010. Available at: < http://vlex.com/vid/case-of-issa-and-others-v-turkey-26782421> Committee on Legal Affairs and Human Rights. as reported by Herta DÄUBLER- GMELIN The state of human rights in Europe: the need to eradicate Impunity. Parliamentary Assembly. Doc. No. 11934. 3 June 2009. par 60. [internet] Accessed March 6, 2010. Available at: European Convention on Human Rights and Fundamental Freedoms. COUNCIL OF EUROPE. European Treaties. Press for Change [internet]. Accessed March 4, 2010. Available at: . From Legal Theory to Policy Tools: International Humanitarian Law and International Human Rights Law in the Occupied Palestinian Territory POLICY BRIEF May 2007. p 4. PROGRAM ON HUMANITARIAN POLICY AND CONFLICT RESEARCH HARVARD UNIVERSITY. [internet] Accessed March 6, 2010. Available at: < http://www.hpcrresearch.org/pdfs/IHRLbrief.pdf> Human Rights Act 1998. UK Public Acts 1998. OPSI Office of Public Sector Information. [internet] Accessed March 5, 2010. Available at Jacobs. Francis. The impact of European Convention on Human Rights. THE EUROPEAN CONVENTION ON HUMAN RIGHTS, THE EU CHARTER OF FUNDAMENTAL RIGHTS AND THE EUROPEAN COURT OF JUSTICE. [internet] Accessed March 6, 2010. Available at: < http://www.ecln.net/elements/conferences/book_berlin/jacobs.pdf> Kirchner, Stefan. The Jurisdiction of the European Court of Human Rights and Armed Conflicts. Institute for Public Law, University of Goettingen. May 12, 2003. [internet]. Accessed March 6, 2010. Available at: < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=420100>) The European Convention on Human Rights. UK LAW ONLINE. [internet]. Accessed March 5, 2010. Available at: ). UK Constitution “we, the people…” [internet] Accessed March 6, 2010. Available at: Read More