Defending Marcos's Rights under the ECHR - Assignment Example

In order to file a claim pursuant to the EHCR, There are three key requirements that Macros must meet. Firstly, Macros must be a victimof a violation of one or more of the articles of the Convention. In general what this means is that, Macros must have been directly affected by an act that has breached the convention. In some cases, one needs only to show a strong likelihood of being affected instead of actual breach so long as you belong to a specific class of persons. For example, homosexual men were permitted to challenge laws that criminalized gay sex even though it was highly unlikely that the individual applicants would ever be prosecuted. (Your Rights 2008) Because the laws were rarely enforced it was unlikely that they would be prosecuted, but the risk of enforcement was there, so they were allowed to challenge it.(Your Rights 2008) Here, Macros has standing because he has already been mistreated. Thus, Macros has satisfied the first element of standing. Before Macros makes an application to the ECHR he must pursue any proceedings that he could take in the Hungarian courts that are capable of providing him with an adequate remedy for the breach of his Convention rights. Here, the Hungarian Courts found that the officers had used necessary force to contain the situation while making multiple arrests. Further, the Hungarian Courts also found that the internal inquiry conducted within the Special Anti-Terrorist Squad was adequate although no officers were criminally prosecuted. Based upon the facts provided, it appears that all remedies offered by the Hungarian courts have been exhausted. Accordingly, Macros fits into the second element of standing to file his application to the ECHR. Finally, Macros must make his application to the ECHR within six months of the conclusion of any court proceedings that he has taken in Hungary that could have provided him with a remedy or, if there were no proceedings that it was reasonable to expect Macros to take, within six months of the event which gives rise to his application. When Macros makes his application to the ECHR he will be asked to complete one of the ECHR’s application forms. However, it is not necessary to fill out one of these forms to meet the six month rule. All he need to do is to get a letter to the court within the six months setting out: 1. His details (name, address and nationality). 2. The country against which you are making your application. Hungary 3. The facts that have given rise to the application. Marcos was sitting in a café in the centre of Budapest (Hungary) when officers of the Special Anti-Terrorist Squad raided the café in order to arrest a number of suspected criminals known to be regular customers. During the operation, Marcos was hit two or three times on the head with a broken leg of a table. The police officers threatened and swore at him, using abusive language. They dragged Marcos outside the café, hit him several times and threw him down on the ground. He was also hit several times on the head with the butt of a gun and his ribs kicked several times. After seeing his papers, the officers told Marcus they had mistaken him for someone else, apologised and left the café. Marcos lost consciousness and was taken into hospital where he was found to have cerebral trauma. Emergency head surgery was carried out and he remained in hospital for 2 months recovering. He complained to the Hungarian Courts that the ill-treatment had been a violation of the rules on the use of force by the police. 4. The article or articles of the Convention that are alleged to have been breached. The articles Macros should allege to have been breached are: A) Article 1 – Obligation To Respect Human Life – Despite the ruling of the Hungarian courts the conduct of the Hungarian police officers was not respectful towards the life of Macros. B) Article 3 – Prohibition of Torture – Macros can make an excellent case for torture. He was threatened and sworn at. The officers used abusive language. They dragged Marcos outside the café, hit him several times and threw him down on the ground. He was also hit several times on the head with the butt of a gun and his ribs kicked several times. C) Article 5 – Right to Liberty and Security – as noted earlier, He was threatened and sworn at. The officers used abusive language. They dragged Marcos outside the café, hit him several times and threw him down on the ground. He was also hit several times on the head with the butt of a gun and his ribs kicked several times. After seeing his papers, the officers told Marcus they had mistaken him for someone else, apologised and left the café. Obviously, they should have asked to see his papers before they beat and tortured him. D) Article 6 – Right to a Fair Trial – It is clear that Hungary’s judicial system is completely lacking in the civil rights arena. Accordingly, Macros is entitled to relief from this tribunal. Macris should send his letter to: The Registrar European Court of Human Rights Council of Europe F-67075 Strasbourg Cedex France Fax: 00 33 3 88 41 27 30 Article 6 guarantees the right to a fair trial, both in civil and criminal proceedings. It is the right most often invoked by applicants before the European Court of Human Rights. The concept of a fair trial contains many elements. At the core is the right to a "fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Also contained in Article 6 are: · the principle of the presumption of innocence until guilt has been proven, · the right of the accused to have adequate time and facilities to prepare a defence, · the right to defend oneself in person or through legal assistance, · the right to call witnesses and · the right to have the free assistance of an interpreter where necessary. Article 13 provides for the right to an effective remedy for alleged violations of the ECHR. Where there is no effective remedy available under the domestic law, this in itself can amount to a violation under the ECHR. A Contracting State must provide for the possibility of a remedy for alleged breaches of the ECHR. When it has received Macros’ letter the ECHR will send him one of its application forms to complete. If there is not enough space on the form he can set out his case in a longer document which he must attach to the form. It is important that he submits his completed application form within any deadline set by the ECHR or, if no deadline is set, within a few weeks of receiving it. If he does not submit the form speedily he runs the risk that the ECHR will decide that he has not met the six month deadline. If he cannot meet any deadline that is set he should contact the ECHR and try to agree an extended deadline. Once the ECHR has acknowledged receipt of Macro’s application form it may be some time (months if not years) before he hears anything further. At this stage the ECHR may rule Macro’s application inadmissible. The ECHR will not give reasons and there is no right of appeal. If the application is ruled inadmissible he will not be able to proceed with it. If it is not ruled inadmissible at this stage, his application will be allocated to one of the ECHR’s four sections. A panel of seven judges from that section will deal with the case. Very significant cases may be dealt with by the ECHR’s Grand Chamber. These cases are considered by a panel of seventeen judges. A case could be transferred to the Grand Chamber at any stage in the proceedings. The application will also be communicated to the Government of Hungary at this stage, that is, the Government will be informed that Macros has made an application and will be invited to respond. Macros will be given an opportunity to respond to the Government’s observations and there may be further exchanges of written representations. The ECHR will then decide whether Macros’ application is admissible. It can rule his application inadmissible if he has failed to meet one of the three requirements set out above or if the ECHR considers that it is ‘manifestly ill-founded’, in other words, that is not arguable. If the ECHR finds his application inadmissible at this stage it will give reasons, but there is no right of appeal. If the ECHR finds Macros’ application admissible it will then go on to decide whether there has been a breach of the Convention. The ECHR usually refers to this as considering the merits of the application. At this point he will have the right to put in a claim for compensation. The ECHR calls this ‘just satisfaction’. It should include a claim for legal expenses if he has incurred any. His claim for just satisfaction should be sent to the ECHR within two months of the ECHR finding his application admissible. Both sides may make further representations before the ECHR decides on the merits of the application. When the ECHR has made its decision on the merits of the application, Macros will be notified of the date on which its judgment will be made public. The judgment will be published on the ECHR’s website on that day. If the ECHR finds that there has been a breach of Macro’s rights it may award him compensation although it does not always do so on the basis that its finding that there has been a breach of Macros’ rights is enough. Once a section of the ECHR has made a final decision on the merits of an application, either party, the Government or the Applicant, can ask to have the application referred to the Grand Chamber. This is the only form of appeal that the ECHR’s rules allow for. The Grand Chamber only rarely agrees to a referral. There is no appeal from a final decision made by the Grand Chamber. If the ECHR decides to hold a hearing after it has found the application admissible, the ECHR rules require Macros to be represented by a lawyer at that hearing unless the ECHR allows otherwise. References www.echr.coe.int en.wikipedia.org/wiki/European_Convention_on_Human_Rights www.worldlii.org/eu/cases/ECHR/1978/1.html Read More