How the UK and Spain Apply the ECHR within Their Own Legal Systems - Essay Example

The Difference Between the way in Which UK and Spain Apply the ECHR within their own Legal Systems and State: Date: The Difference between the Way in Which UK and Spain apply the ECHR within their own Legal System Introduction The European Convention on Human Rights (ECHR) is a continental pact derived from within the Council of Europe, coined in Strasbourg in 1949 in the first post-war efforts to unite Europe. Among the states that ratified ECHR was UK and Spain. In particular, UK consented to the right of individuals to push a case to Strasbourg as well as the jurisdiction of ECtHR in 1966. All the signatories of the treaty were obliged in 1998 to accommodate the right of individual petition. Also, the jurisdictions of the Court were made mandatory for all the member states. Since then, the Strasbourg scheme has immensely extended throughout Europe owing to an entry of eastern and central European countries, whose membership of the convention heralded an end to their autocratic past (Leach, Gordon and Donald, 2012, pp. 1-15). The European Convention on Human Rights is lauded as the most effective system for enforcing human rights in the planet. Forty-seven states, housing about 800 million people, are at the moment under the convention. Since its foundation, no state has ever pulled out of the treaty (Boyle, 2009, pp. 167-175). Spain ratified the European Convention on Human Rights in 1979. As of 31 December 2013, the court addressed 1042 applications from Spain, while 855 cases were recorded as pending towards the beginning of January 2014 (European Court of Human Rights, 2014, pp. 1-7). For UK, the Court handled 1652 applications by the closure of 2013, of which 1633 were pronounced inadmissible hence struck out. The total number of pending applications for UK stood at 3368 by January 2014 (ECtHR, 2014, pp. 1-14). The ECHR has provisions for individuals to forward complaints outside their state that they feel their government has contravened the rights and freedoms stipulated in the convention. An autonomous court is mandated to give rulings on such complaints. Under the Convention, all member states are obliged to implement the Court’s judgments. In the event that a violation has been spotted by the Court, a “just satisfaction” is often awarded to the individual complainant (Boyle, 2009, pp. 167-175). This usually takes the form of financial compensation or reformation of some laws and practices (Gerard, 2014, pp. 1-11). Summary of the Essay The provisions and laws making up European Convention on Human Rights are exercised differently within the legal contexts of UK and Spain. As an international pact, the European Convention on Human Rights was not treated as part of the Law of the United Kingdom. For that reason, the treaty was not directly put into effect by UK’s judicial framework. However, the UK Courts interpret local legislations by all means necessary to ensure that it conforms to the international treaty obligations on grounds that it is a presumption of the legislative intent that the legislature aims to comply with the treaty obligations of the UK (Scott et al, 2013, p.75). Within the Spanish legal system, the European Court of Human Rights Resolutions do not have a direct or enforceable effect within the Spanish Judicial framework. To this effect, the Spanish Judicial system does not contemplate the carrying out of international sentences. Be that as it may, sentences pronounced by foreign courts are enforceable through Spanish courts. In addition, the Spanish courts system views the European Convention on Human Rights as not a supranational judicial body (Kluwer Law International, 2001, pp. 398-402). The recognition accorded by the Spanish State to the mandate of the Court cannot go beyond that which is set out in Article 46 of the Convention, and which collaterally bars the interpretation of sentences pronounced by the Strasbourg Court as the ultimate and definitive ruling in cases coming from the local courts. Article 117.3 of the Spanish constitution postulates that the jurisdictional authority in all forms of legal processes and proceedings, judgments, and enforcements of judgments solely belongs to the Spanish courts set under the law. The influence of the European Court of Human Rights on the Spanish legal system can only be made possible via a ‘lex data’ equated to the one reflected in Article 81.1 of the constitution of Spain. Thus the extent of reception and application of ECHR by these two member states are different (Kluwer Law International, 2001, pp. 398-402). Main Body UK’S Application of ECHR Even though UK was among the first states to ratify the European Convention on Human Rights in as early as 1953, it was the last country to harmonize the Convention with its local legal system. With the enforcement of the UK Human Rights Act in 2000, UK harmonized the Convention with its constitution, making it an immediate source of individual rights against government bodies, and in the event of contravention, a source of remedies before the local courts. In so doing, UK opened its legal orders to the full reception of ECHR passively. As such they are now staged to play a more intensive role in the improvement of the European Constitutional order by way of judicial dialogue (Sweet and Keller, 2008, pp. 31-42). In UK, the application of international law is founded on the principle of national jurisdiction, which remains mainly territorial, even though jurisdiction is interpreted broadly by the ECtHR. The UK treatment of the ECHR is complex for two major reasons. The first dilemma surrounds the application of ECHR beyond the national frontiers. In 1953, UK broadened the influence of the Convention, except Protocol no.1, to 42 dependencies and colonies. From 1965, most British colonies had been decolonized. However, the Convention still has an effect on the legal systems of some of these colonies today. The second dilemma concerns the UK territory itself. UK is made up of England and Wales, Scotland and Northern Ireland (Sweet and Keller, 2008, pp. 31-42). Before the coming into force of HRA, it was presumed that the judges and parliament, through the common laws, guaranteed the fundamental freedoms and rights of individuals. In 1950, the UK signed the ECHR. However, the international protection of human rights was viewed by the British Foreign Office as part of a larger attempt to foster stability in Europe. Owing to UK’s dualism, it was easier for it to sign and consent to the ECHR than for monist states like Spain, where the Convention might be accorded instant legality in domestic law (Sweet and Keller, 2008, pp. 31-42). The UK was in the forefront in promoting the creation of the Council of Europe and to push for the ECHR agenda in the continent. However, it was vehemently opposed to an international judicial mechanism with the authority to adjudicate matters pertaining to human rights. Ultimately, states reached a consensus to bestow mandatory interstate jurisdiction on the court, but to make the individual right of petition optional. The UK preferred specificity to vagueness, and it was a British representative who coined the Article 2 to 17 of the ECHR, simplifying adoption by the UK (Sweet and Keller, 2008, pp. 31-42). In 1998 before the existence of the HRA, the Convention acquired the standing of an international Convention devoid of immediate validity in domestic law. Legal subjects in the UK who had a conviction that their rights had been undermined could forward a legal action with regard to such a contravention before the ECtHR only. During the thirty years that passed after the accession, incorporation was not envisioned. Rather, only cursory references were made in the Legislature within the first few years of ratification of the ECHR (Sweet and Keller, 2008, pp. 31-42). While the United Kingdom has a classic dualist treatment of the international law, entry into the EU diluted the dualist belief. When the UK joined the EU in 1973, the philosophies of the supremacy and impact of EU law were slowly acknowledged as having been incorporated into the domestic law through the European Communities Act 1972. Further, the supremacy of the EU law applied even to contradicting parliamentary statutes passed later. The doctrine of implied retraction, otherwise a core rule of legislative autonomy in the UK, is not employed in clash between EU rule and later UK statutes (Sweet and Keller, 2008, pp. 31-42). The widespread priorities given to human rights, particularly Convention rights in the EU law, as well as asperity of judicial solutions before the ECJ by comparison to the ECtHR, have proven to be vital, indirect factors in the treatment of ECHR in the British constitution. This has been the scenario, for example, in the area of anti-discrimination, particularly the prohibition of indirect inequity or safeguarding of pregnancy at work and right of free movements. When EU law strengthened its influence in the domestic legal system, appellate judges and legal scholars started, with escalating energy, to be concerned about the inconsistency of the UK’s stand on the ECHR (Sweet and Keller, 2008, pp. 31-42). The UK government usually places a lot of emphasis on precision and details in observing judgments of the European Court of Human Rights. Also, enforceability of the Court’s decisions is usually mostly a question of domestic governments opting in. This is attributed to the fact that decisions are binding to the states only as a question of international law under article 1 of ECHR. As such, they are not directly binding in the national legal system. For example, the UK government observed the early verdicts of the European Court of Human Rights that the government could not extradite the Islamic fundamentalist Abu Qatada to Jordan without precise guarantee to the state that proof acquired by way of torture could not be applied against him in trial proceedings (Sweet and Keller, 2008, pp. 31-42). The UK government is reluctant to pass legislation to change its law. This is in breach of a ruling from Strasbourg that by omitting the right to vote from prisoners, the government defied Protocol 1, Article 3 of ECHR, which provides all citizens with rights to regular, free and fair elections. Thus, unlike the ECJ, the ECHR has no direct jurisdiction within the legal system of the United Kingdom. In the early 80s, when the UK started to lose cases at the ECtHR, increased pressure for incorporation started to mount on the UK government, since the UK judges found that English Common law was not a substantial means to safeguard Convention rights (Sweet and Keller, 2008, pp. 31-42). If the options boiled down to incorporation versus drafting a Bill of Rights, the former appeared quicker, less complex and less politically controversial. Then decisive moment set in when the Labor Party assumed power in 1997, under the leadership of Tony Blair, who pledged to address human rights issues both locally and in the British foreign policy. In its white paper, Rights Brought Home in 1997, it stressed that the UK had been pioneer of human rights in the European continent. That being so, Bringing Rights Home would subject the British government to legal principles that were, after all, British, not alien (Sweet and Keller, 2008, pp. 31-42). In its case for incorporation, the British government asserted that where domestic remedy lacks with regard to infringements of the Convention, individuals have no choice but to travel to Strasbourg, dampening the spirit of the participants. Demanding that the judges interpret domestic law in consonance with the Convention would lower the number of cases forwarded to, and sanctioned in Strasbourg, and the political embarrassment thus generated. Moreover, the more the UK judicature actively adjudicated on the Convention rights, the more the UK would create dominance on the ECtHR’s jurisprudence, culminating in reduced incoherencies between national and supra-national models and findings (Sweet and Keller, 2008, pp. 31-42). Spanish Application of ECHR Within the Spanish legal context, decisions made by the European Court of Human Rights lack a direct influence. In the same breadth, the Spanish judicial framework does not contemplate the execution of international sentences. However, sentences read by foreign courts can be enforced by the Spanish courts. Moreover, the European Court of Human Rights is not viewed as a supranational judicial body, and the acknowledgement provided by the Spanish government to the jurisdiction of that court cannot go beyond that which is stipulated in Article 46 of the Convention, and which collaterally bars interpreting sentences pronounced in the Strasbourg court as the final definitive ruling in cases coming from the national courts (Kluwer Law International, 2001, pp. 398-402). Article 117.3 of the constitution of Spain stresses that the jurisdictional authority in all forms of legal proceedings, enforcements of verdicts and judgments exclusively belongs to the Spanish courts. Given the legal framework as it is today, the influence of the European Court of Human Rights in the Spanish judicial context can only be made possible via a ‘lex data’, equated to the one spelt out in Article 81.1 of the constitution of Spain. Sentences read by the European Court of Human Rights or the verdicts made by the Committee of ministers cannot supersede sentences pronounced by a Spanish court owing to the Spanish legal system regulations (Kluwer Law International, 2001, pp. 398-402). The only ways that the decisions made by the European Court of Human Rights can override the sentences pronounced by Spanish Court are through: modification of the Spanish legal structure as is the case with Norway so as to create a new protocol for the review of a final judgment, and signing a new Agreement protocol entrenching a procedure for the execution of ECHR judgments or decisions made by the Committee of Ministers of defendant states. In the absence of the aforementioned situations, this situation can only be resolved declaring it a tall order to enforce (Kluwer Law International, 2001, pp. 398-402). Spain has gone through the longest standing autocratic regimes in Europe after Portugal. This culminated in the late ratification of the European Convention on Human Rights. Upon the end of the dictatorial eras, the Convention was signed by Spain on the very same day it assented to the Council of Europe in September 1976. Spain ratified the treaty in October 1979. However, the right of individual petition was given recognition in 1981. Spain expressed several reluctance to Article 5, 6 and 11, and various interpretative declarations with respect to Article 10, 15 and 17 (Delmas-Marty, 1992, pp.171-194). Ever since the signing of Protocol 1 and 4 in 1978, they have never been ratified. An assessment of the Spanish constitution reveals that it devotes a large proportion of its provisions to the fundamental rights and freedoms of its citizens. The Spanish constitution has become a absolute avenue for recognizing a democratic nation. The constitution is made up of discursive perspectives directed at consolidating the democracy which was established by democratic transition in Spain (Delmas-Marty, 1992, pp.171-194). In spite of the firm intent of Spain to be counted as part of the community created by European states, it has never granted a constitutional status to the ECHR. The constitution exclusively remains the cornerstone of the Spanish legal system. Article 96-1 of the constitution of Spain declares that treaties may only be repealed, suspended or amended ‘in the manner provided for in the treaties themselves or in accordance with the general rules of international law’. This implies that a statute cannot suspend or modify the entire or even a fraction of an international agreement (Delmas-Marty, 1992, pp.171-194). The treaty triumphs over Spanish domestic legislation, irrespective of whether it is subsequent or prior. From the aforesaid facts, in the event of a conflict between the provisions of a domestic statute and those of a treaty, the Spanish courts are obliged to give precedents to the treaty’s provisions. Be that as it may, treaties, and thus the ECHR, rank below the Spanish constitution. Preventive orex post facto scrutiny of the legality of the treaty is bestowed on the Constitutional Court (Delmas-Marty, 1992, pp.171-194). The Spanish constitution reserves a special status to international human rights treaties. This is clearly reflected in Article 10 of the constitution of Spain. In particular, the provisions of the Spanish constitution states as follows: ‘Provisions relating to the fundamental rights relating to the fundamental rights and the freedoms recognized by the Constitution shall be construed in accordance with the international treaties and agreements on human rights that have been ratified by Spain.’ Upon full publication in Spain, the foreign treaties that have been legally concluded shall form part of the local legal system (Napoletano and Galigiuri, 2010, pp.125-197). The Spanish Constitution bestows a supra-legislative status to the ECHR, above the local legislation and below the Constitution. For that reason, domestic legislation may not, even though enforced subsequently, change or derogate an international treaty. Additionally, the European Convention on Human Rights has an infra-constitutional status, which is drawn from Article 95 (1) of the Spanish Constitution. It declares that in the event that an international treaty has provisions that are deemed incompatible with the Constitution, its ratification needs a prior amendment of the Constitution itself. As a final point, Article 10 (2) demands that constitutional fundamental rights ought to be interpreted in conformity with the international human rights treaties, hence with the European Convention on Human Rights (Napoletano and Galigiuri, 2010, pp.125-197). The Spanish Constitutional Court has been reiterating its firmness that ECHR can integrate the content of constitutional rights, having special significance to the understanding of such rights. Nonetheless, the ECHR is not an independent apparatus under which national legislation can be revised. In so far as ordinary courts are concerned, being that international treaties cannot be amended or derogated from by national legislation, the Tribunal Constitutional made a ruling that domestic courts may allocate legislation conflicting with the ECHR, or in instances of doubt, make an inquiry asking the Constitutional Court to revise the conformity of national legislation with the fundamental right guaranteed by the ECHR and the Constitution (Napoletano and Galigiuri, 2010, pp.125-197). Conclusion Having considered the extent and modes of application of the European Convention on Human Rights by the two countries, we can deduce that they sharply differ in their manner of application of the Convention within their legal frameworks. The UK legal apparatus interprets local legislations by all efforts to ensure that it conforms to the international treaty obligations on the foundation that it is a presumption of the legislative intent that the parliament aims at complying with the treaty obligations of the UK. In the Spanish legal system, however, the Resolutions of the European Court of Human Rights do not have a direct or enforceable influence on the Spanish judicial framework. Whereas the UK established a local legal parameter that represents the ideals embraced by the Convention, the Spanish government is yet to pass such legislations. In an effort by the then British Prime Minister Tony Blair to reconcile the UK legal system with the ECHR, he launched a program dubbed Bringing Rights Home which in essence entails entrenching ECHR in the British legal system. But the Spanish government still ranks the ECHR below the Constitution of Spain. In addition, the Spanish government has not created any local legal representation of the ECHR. We can thus deduce that the modes of application of ECHR within the legal contexts of the two countries are dissimilar. References Boyle, K., 2009. The European Experience on Human Rights. Victoria University of Wellington Law Review, [e-journal] 40 (1), pp.167-175. Available at < http://www.ebscohost.com > [Accessed 4 May 2014] Delmas-Marty, M., ED., 1992. The European Convention for the Protection of Human Rights: International Protection versus National Restrictions. [e-book] Dordrecht: Kluver Academic Publishers. Available at Google Books < http://www.books.google.com> [Accessed 4 May 2014] ECHR., 2014. The United Kingdom. Press Country Profile- United Kingdom, [e-journal] pp.1- 14. Available at < http://www.echr.coe.int> [Accessed 4 May 2014] European Court of Human Rights., 2014. Spain. Press Country Profile-Spain, [e-journal], pp.1- 7. Available at < http://www.echr.coe,int> [Accessed 4 May 2014] Gerald, J., 2014. Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of Reasoning. Human Rights Law Review, [e-journal], pp.1-11. Available at < http://www.hrlr.oxfordjournals.org> [Accessed 4 May 2014] Kluwer Law International., 2001. Spanish Yearbook of International Law. [e-book] The Hague: Martinus Nijhoff Publishers. Available at Google Books < http://www.books.google.com> [Accessed 4 May 2014] Leach, P., Gordon, J., and Donald, A., 2012. The UK and the European Court of Human Rights. Equality and Human Rights Commission Research Report, [e-journal] 83, pp.1-15. Available at < http://www.equalityhumanrights.com> [Accessed 4 May 2014] Napoletano, N., and Galigiuri, A., 2010.The Application of the ECHR in the Domestic Systems. Italian Yearbook of International Law, [e-journal] XX, pp.125-197. Available at < http//www.academia.edu > [Accessed 4 May 2014] Scott et al., 2013. Legal Systems and Skills. [e-book] Great Clarendon Street: Oxford University Press. . Available at Google Books < http://www.books.google.com> [Accessed 4 May 2014] Sweet, S., and Keller, H., 2008. A Europe of Rights: The Impact of ECHR on National Legal Systems. [e-book] Great Clarendon Street: Oxford University Press. Available at Google Books< http://www.books.google.com > [Accessed 4 May 2014] Read More