The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context

The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context

The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context Edited By

Dia Anagnostou Evangelia Psychogiopoulou

LEIDEN • BOSTON 2010

On the cover: “City Flow” by Holly Van Hart, Oil painting on canvas, 20” x 24”, www.hollyvanhart.com This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data The European Court of Human Rights and the rights of marginalised individuals and minorities in national context / Edited By Dia Anagnostou, Evangelia Psychogiopoulou. p. cm. Includes bibliographical references and index. ISBN 978-90-04-17326-2 (hardback : alk. paper) 1. European Court of Human Rights 2. Human rights--Europe. 3. Civil rights--Europe. 4. Minorities--Legal status, laws, etc.--Europe. I. Anagnostou, Dia. II. Psychogiopoulou, Evangelia. KJC5138.E97 2009 342.408’73--dc22 2009033022

ISBN 978 9004 17326 2 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Brill has made all reasonable efforts to trace all right holders to any copyrighted material used in this work. In cases where these efforts have not been successful the publisher welcomes communications from copyright holders, so that the appropriate acknowledgements can be made in future editions, and to settle other permission matters. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

Contents Acknowledgements ........................................................................................... vii Table of Cases ..................................................................................................... ix List of Contributors ............................................................................................ xxiii Chapter One The Strasbourg Court, Democracy and the Protection of Marginalised Individuals and Minorities ............................... Dia Anagnostou Chapter Two Protecting Individuals from Vulnerable Groups and Minorities in the ECtHR: Litigation and Jurisprudence in Austria ............................................................................................................ Kerstin Buchinger, Barbara Liegl and Astrid Steinkellner Chapter Three Protecting Individuals from Minorities and Other Vulnerable Groups in the European Court of Human Rights, Litigation and Jurisprudence: The Case of Bulgaria .......................................................................................................... Yonko Grozev, Daniel Smilov and Rashko Dorosiev Chapter Four Protecting Individuals from Minorities and Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in France .......................................................... Emmanuelle Bribosia, Isabelle Rorive and Amaya Úbeda de Torres Chapter Five The Protection of Marginalised Individuals and Minorities in Germany: The Role of National and European Judicial Mechanisms ......................................................................................... Christoph Gusy and Sebastian Müller

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Chapter Six The European Court of Human Rights in Greece: Litigation, Rights Protection and Vulnerable Groups ..................................................... 115 Evangelia Psychogiopoulou

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contents

Chapter Seven Protecting Individuals Belonging to Minority and Other Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in the Italian System ...................................................................................................... 137 Serena Sileoni Chapter Eight Protecting Marginalised Individuals and Minorities in the ECtHR: Litigation and Jurisprudence in Turkey .............................................................................................................. 159 Dilek Kurban Chapter Nine The European Court of Human Rights in the UK: Litigation, Rights Protection and Minorities .......................................... 183 Susan Millns, Christopher Rootes, Clare Saunders and Gabriel Swain Chapter Ten Conclusions ............................................................................... 209 Yorgos Kaminis References............................................................................................................ 221 Index .................................................................................................................... 241

Acknowledgements This volume is the product of collaborative research undertaken in the context of the JURISTRAS project funded by the 6th Framework Programme of the European Commission (contract no. FP6-028398). The aim of this project was to explore the effects of the European Court of Human Rights case law on national laws, policies and judicial interpretations regarding minorities and immigrants. This volume contains a systematic overview and analysis of the first cycle of the project’s research. We would like to thank Angela Liberatore, the European Commission’s project officer, whose enthusiastic support for the subject of this research was from the start and throughout the project extremely encouraging and motivating. We would also like to thank the anonymous reviewer who saw in the original and much different manuscript a promising study of a little explored subject. The themes and structure of the original draft reports and subsequently the country chapters of this volume were developed and discussed by the authors in the course of four meetings that were held in Siena, Vienna, Berlin and Istanbul from the spring of 2007 until the autumn of 2008. We wish to thank the contributors to this volume for their willingness, even with occasional signs of exasperation, to respond to numerous remarks and suggestions of the editors and engage in repeated rounds of revisions. Collaborative research presents many challenges to the individuals involved. But as many others who have edited volumes before us would no doubt agree, it is one of the most gratifying aspects of academic work, not only because of the knowledge we gain from others, but also because of the pleasure in communicating it. Dia Anagnostou and Evangelia Psychogiopoulou Athens, May 2009

Table of Cases European Commission on Human Rights EComHR, Church of X v. UK (no. 3798/68), 17 December 1968 EComHR, Arrowsmith v. UK (no. 7050/75), 16 May 1977 EComHR, Gay News Ltd v. UK (no. 8710/79), 7 May 1982 EComHR, Ahmad v UK, 4 EHRR 126 (1982) EComHR, El-Makhour v. Germany (no. 14312/88), 10 July 1989 EComHR, Campopiano and other v. France (no. 18336/91), 5 May 1993 EComHR, H. v. UK, 16 EHRR CD 44 (1993) EComHR, McLaughlin v. UK (no. 18759/91), 9 May 1994 EComHR, G. and M.L. and GIA v. France (no. 17734/91), 29 June 1994 EComHR, Church of Scientology of Paris v. France (no. 19509/92), 9 January 1995 EComHR, Rai, Allmond and ‘Negotiate Now’ v. UK (no. 25522/94), 6 April 1995 EComHR, Ahmet Sadik v. Greece (no. 18877/91), 15 November 1996 EComHR, Universelles Leben e.v. v. Germany (no. 29745/96), 27 November 1996 EComHR, Scientology Kirche Deutschland e.v. v. Germany (no. 34614/ 97), 7 April 1997 EComHR, Zeibek v. Greece (no. 34372/97), 21 May 1997 EComHR, M.M. v. Bulgaria (no. 27496/95), 9 July 1997 EComHR, Agko v. Greece (no. 31117/96), 20 October 1997 EComHR, Imam and Others v. Greece (no. 29764/96), 20 October 1997 EComHR, Keller v. Germany (no. 36283/97), 4 March 1998 EComHR, Christian Association Jehovah’s Witnesses v. Bulgaria (no. 286 26/95; 3/7/1997), 9 March 1998 EComHR, A.B. and G.I.A. v. France (no. 28660/95), 20 May 1998 EComHR, Cha’are Shalom Ve Tsedek v. France (no. 27417/98), 20 October 1998 EComHR, Beshara and Others v. Germany (no. 43696/98), 30 October 1998

x

table of cases

European Court of Human Rights ECtHR, Tyrer v. UK (no. 5856/72), 25 April 1978 ECtHR, Luedicke and Others v. Germany (no. 6210/73), 28 November 1978 ECtHR, Sunday Times v. UK (no. 6538/74), 26 April 1979 ECtHR, Young, James and Webster v. UK (no. 7601/76 and 7806/77), 13 August 1981 ECtHR, Dudgeon v. UK (no. 7525/76), 22 October 1981 ECtHR, Childs v. UK (no. 9813/82), 1 March 1983 ECtHR, Öztürk v. Germany (no. 8544/79), 21 February 1984 ECtHR, Goddi v. Italy (no. 8966/80), 9 April 1984 ECtHR, Bozano v. France (no. 9990/82), 15 May 1984 ECtHR, X and Y v. The Netherlands (no. 8978/80), 26 March 1985 ECtHR, Abdulaziz, Cabales and Balkandali v. UK (nos. 9214/80; 9473/81; 9474/81), 28 May 1985 ECtHR, Glasenapp v. Germany (no. 9228/80), 28 August 1986 ECtHR, Kosiek v. Germany (no. 9704/82), 28 August 1986 ECtHR, Rees v. UK (no. 9532/81), 17 October 1986 ECtHR, Capuano v. Italy (no. 9381/81), 25 June 1987 ECtHR, Chappell v. UK (no. 10461/83), 30 March 1989 ECtHR, Kamasinski v. Austria (no. 9783/82), 19 December 1989 ECtHR, Cossey v. UK (no. 10843/84), 27 September 1990 ECtHR, Observer/Guardian v. UK (no. 13585/88), 26 November 1991 ECtHR, Sunday Times 2 v. UK (no. 13166/87), 26 November 1991 ECtHR, Beldjoudi v. France (no. 12083/86), 26 March 1992 ECtHR, Zukrigl v. Austria (no. 17279/90), 10 October 1992 ECtHR, Bulut v. Austria (no. 20807/92), 13 October 1992 ECtHR, Kokkinakis v. Greece, (no. 14307/88), 25 May 1993 ECtHR, Hoffmann v. Austria (no. 12875/87), 23 June 1993 ECtHR, H.F. v. Austria (no. 22646/93), 17 September 1993 ECtHR, Gümüskaya v. Austria (no. 22782/93), 18 October 1993 ECtHR, Informationsverein Lentia and Others v. Austria (nos. 13914/88; 15041/89; 15717/89; 15779/89; 17207/90), 24 November 1993 ECtHR, East African Asians v. UK (nos. 4403/70; 4419/70; 4422/70; 4423/70; 4434/70; 4443/70; 4476/70; 4478/70; 4486/70; 4501/70; 4526/70; 4530/70), 21 March 1994 ECtHR, Altuntas v. Austria (no. 25918/94), 13 December 1994 ECtHR, Öztürk v. Austria (no. 26400/95), 6 February 1995 ECtHR, Onyegbule v. Austria (no. 26609/95), 2 March 1995 ECtHR, Adegbie v. Austria (no. 26998/95), 7 April 1995 ECtHR, Piermont v. France (no. 15773/89), 27 April 1995

table of cases

xi

ECtHR, B.S. v. Austria (no. 27647/95), 19 June 1995 ECtHR, Nasri v. France (no. 19465/92), 13 July 1995 ECtHR, Vogt v. Germany (no. 17851/91), 26 September 1995 ECtHR, John Murray v. UK (no. 18731/91), 8 February 1996 ECtHR, Bulut v. Austria (no. 17358/90), 22 February 1996 ECtHR, Remli v. France (no. 16839/90), 23 April 1996 ECtHR, Fehrati v. Austria (no. 31411/96), 7 May 1996 ECtHR, Amuur v. France (no. 19776/92), 25 June 1996 ECtHR, Karakurt v. Austria (no. 32441/96), 30 July 1996 ECtHR, Akdivar and Others v. Turkey (no. 99/1995/605/693), 30 August 1996 ECtHR, Gaygusuz v. Austria (no. 17371/90), 16 September 1996 ECtHR, Buckley v. UK (no. 20348/92), 25 September 1996 ECtHR, Manoussakis and Others v. Greece (no. 18748/91), 26 September 1996 ECtHR, Chahal v. United Kingdom, (no. 22424/93), 15 November 1996 ECtHR, Ahmed v. Austria (no. 25964/94), 17 December 1996 ECtHR, Aksoy v. Turkey (no. 21987/93), 18 December 1996 ECtHR, Efstratiou v. Greece (no. 24095/94), 18 December 1996 ECtHR, Valsamis v. Greece (no. 21787/93), 18 December 1996 ECtHR, Schober v. Austria (no. 34891/97), 12 February 1997 ECtHR, Laskey, Jaggard and Brown v. UK (nos. 21627/93; 21826/93; 21974/93), 19 February 1997 ECtHR, Hornsby v. Greece (no. 18357/91), 19 March 1997 ECtHR, X, Y, and Z v. UK (no. 21830/93), 22 April 1997 ECtHR, Georgiadis v. Greece (no. 21522/93), 29 May 1997 ECtHR, Tsirlis and Kouloumpas v. Greece (nos. 19233/91; 19234/91), 29 May 1997 ECtHR, Pentidis and Others v. Greece (no. 23238/94), 9 June 1997 ECtHR, Kalaç v. Turkey (no. 20704/92), 1 July 1997 ECtHR, Bamba v. France (no. 30930/96), 8 September 1997 ECtHR, A.B. v. France (no. 34795/97), 18 September 1997 ECtHR, Szücs v. Austria (no. 20602/92), 24 November 1997 ECtHR, Zana v. Turkey (no. 69/1996/688/880), 25 November 1997 ECtHR, Sakik and Others v. Turkey (no. 87/1996/706/898-903), 26 November 1997 ECtHR, Menteş and Others v. Turkey (no. 23186/94), 28 November 1997 ECtHR, Canea Catholic Church v. Greece (no. 25528/94), 16 December 1997 ECtHR, United Communist Party of Turkey and Others v. Turkey (no. 133/1996/752/951), 30 January 1998 ECtHR, Guerra and Others v. Italy (no. 116/1996), 19 February 1998 ECtHR, Larissis and Others v. Greece (nos. 23372/94; 26377/94; 26378/94), 24 February 1998

xii

table of cases

ECtHR, Kurt v. Turkey (no. 15/1997/799/1002), 25 May 1998 ECtHR, Socialist Party and Others v. Turkey (no. 20/1997/804/1007), 25 May 1998 ECtHR, Incal v. Turkey (no. 41/1997/825/1031), 9 June 1998 ECtHR, Twalib v. Greece (no. 24294/94), 9 June 1998 ECtHR, Sidiropoulos v. Greece (no. 26695/96), 10 July 1998 ECtHR, B.B. v. France, (no. 30930/96), 9 September 1998 ECtHR, Amirthalingam v. Germany (no. 41088/98), 18 September 1998 ECtHR, Aka v. Turkey (no. 107/1997/891/1103), 23 September 1998 ECtHR, Demir and Others v. Turkey (no. 71/1997/855/1062–1064), 23 September 1998 ECtHR, Lehideux et Isorni v. France (no. 55/1997/839/1045), 23 September 1998 ECtHR, Portington v. Greece (no. 28523/95), 23 September 1998 ECtHR, Çiraklar v. Turkey (no. 70/1997/854/1061), 28 October 1998 ECtHR, Bezabi v. Germany (no. 43891/98), 29 October 1998 ECtHR, Ariz and Others v. Germany (no. 37669/97), 30 October 1998 ECtHR, Loganathan v. Germany (no. 44667/98), 8 December 1998 ECtHR, Tsavachidis v. Greece (no. 28802/95), 21 January 1999 ECtHR, Tsarknias v. Greece (no. 45629/99), 30 March 1999 ECtHR, Ceylan v. Turkey (no. 23556/94), 8 June 1999 ECtHR, Gerger v. Turkey (no. 24919/94), 8 June 1999 ECtHR, Polat v. Turkey (no. 23500/94), 8 June 1999 ECtHR, Ebrahimzadeh v. Germany (no. 47547/99), 29 June 1999 ECtHR, Başkaya and Okçuoğlu v. Turkey (no. 23536/94 and 24408/94), 8 July 1999 ECtHR, Çakici v. Turkey (no. 23657/94), 8 July 1999 ECtHR, Erdoğdu and İnce v. Turkey (no. 25067/94), 8 July 1999 ECtHR, Karataş v. Turkey (no. 23168/94), 8 July 1999 ECtHR, Okçuoğlu v. Turkey (no. 24246/94), 8 July 1999 ECtHR, Sürek and Özdemir v. Turkey (no. 23927/94), 8 July 1999 ECtHR, Sürek v. Turkey (Sürek II) (no. 24122/94), 8 July 1999 ECtHR, Selmouni v. France (no. 25803/94), 28 July 1999 ECtHR, Freedom and Democracy Party (ÖZDEP) v. Turkey (no. 23885/ 94), 12 August 1999 ECtHR, Basika-Nkinsa v. Germany (no. 47638/99), 31 August 1999 ECtHR, Lustig-Prean & Beckett v. UK (nos. 31417/96; 32377/96), 27 September 1999 ECtHR, Smith and Grady v. UK (nos. 33985/96; 33986/96), 27 September 1999

table of cases

xiii

ECtHR, Öztürk v. Turkey (no. 22479/93), 28 September 1999 ECtHR, Zielinski and Others v. France (nos. 24846/94; 34165/96; 34173/96), 28 October 1999 ECtHR, Serif v. Greece (no. 38178/97), 14 December 1999 ECtHR, Salgueiro da Silva Mouta v. Portugal (no. 33290/96), 21 December 1999 ECtHR, Agga v. Greece (no. 37439/97), 25 January 2000 ECtHR, Cooke v. Austria (no. 25878/94), 8 February 2000 ECtHR, T.I. v. United Kingdom (no. 43844/98), 7 March 2000 ECtHR, Özgür Gündem v. Turkey (no. 23144/93), 16 March 2000 ECtHR, Rushiti v. Austria (no. 28389/95), 21 March 2000 ECtHR, Skender Fiqaj and Others v. France (no. 53491/99), 6 April 2000 ECtHR, Thlimmenos v. Greece (no. 34369/97), 6 April 2000 ECtHR, Velikova v. Bulgaria (no. 41488/98), 18 May 2000 ECtHR, Timurtaş v. Turkey (no. 23531/94), 13 June 2000 ECtHR, Erdoğdu v. Turkey (no. 25723/94), 15 June 2000 ECtHR, Cha’are Shalom Ve Tsedek v. France (no. 27417/95), 27 June 2000 ECtHR, İlhan v. Turkey (no. 22277/93), 27 June 2000 ECtHR, Salman v. Turkey (no. 21986/93), 27 June 2000 ECtHR, Tsingour v. Greece (no. 40437/98), 6 July 2000 ECtHR, Scozzari and Giunta v. Italy (nos. 39221/98 and 41963/98), 13 July 2000 ECtHR, Şener v. Turkey (no. 26680/95), 18 July 2000 ECtHR, Biba v. Greece (no. 33170/96), 26 September 2000 ECtHR, Maaouia v. France (no. 39652/98), 5 October 2000 ECtHR, Akkoç v. Turkey (no. 22947/93, 22948/93), 10 October 2000 ECtHR, Damla and Others v. Germany (no. 61479/00), 26 October 2000 ECtHR, Hasan and Chaush v. Bulgaria (no. 30985/9626), 26 October 2000 ECtHR, Taş v. Turkey (no. 24396/94), 14 November 2000 ECtHR, Çiçek v. Turkey (no. 25704/94), 27 February 2001 ECtHR, Dougoz v. Greece (no. 40907/98), 6 March 2001 ECtHR, Peers v. Greece (no. 28524/95), 19 April 2001 ECtHR, I.S. v. Bulgaria (no. 32438/96), 3 May 2001 ECtHR, Stefanov v. Bulgaria (no. 32438/96), 3 May 2001 ECtHR, Gorzelik and Others v. Poland (no. 44158/98), 17 May 2001 ECtHR, Kress v. France (no. 39594/98), 7 June 2001 ECtHR, Johannische Kirche and Peters v. Germany (no. 41754/98), 10 July 2001 ECtHR, Ekin v. France (no. 39288/98), 17 July 2001 ECtHR Grande Oriente v. Italy (no. 35972/97), 2 August 2001

xiv

table of cases

ECtHR, Stankov and United Macedonian Organization ILINDEN v. Bulgaria (nos. 29221 and 29225/95), 2 October 2001 ECtHR, Kalantari v. Germany (no. 51342/99), 11 October 2001 ECtHR, Fédération Chrétienne des Témoins de Jéhovah v. France (no. 53430/99), 6 November 2001 ECtHR, Fogarty v. UK (no. 37112/97), 21 November 2001 ECtHR, Yagtzilar and Others v. Greece (no. 41727/98), 6 December 2001 ECtHR, Sadik Ahmet and Others v. Greece (no. 64756/01), 3 February 2002 ECtHR, Fretté v. France (no. 36515/97), 26 February 2002 ECtHR, Sajtos v. Greece (no. 53478/99), 21 March 2002 ECtHR, Yazar and Others and the People’s Labour Party (HEP) v. Turkey (no. 22723/93), 9 April 2002 ECtHR, Djamel Lounis v. France (no. 49137/99), 25 April 2002 ECtHR, Pretty v. UK (no. 2346/02), 29 April 2002 ECtHR, Willis v. UK (no. 36042/97), 11 June 2002 ECtHR, Anguelova v. Bulgaria (no. 38361/97), 13 June 2002 ECtHR, Öneryildiz v. Turkey (no. 48939/99), 18 June 2002 ECtHR, Orhan v. Turkey (no. 25656/94), 18 June 2002 ECtHR, Al-Nashif and Others v. Bulgaria (no. 50963/99), 20 June 2002 ECtHR, Wilson, National Union of Journalists and Others v. UK (nos. 30668/96; 30671/96; 30678/96), 2 July 2002 ECtHR, Nouhaud and Others v. France (no. 33424/96), 9 July 2002 ECtHR, Christine Goodwin v. UK (no. 28957/95), 11 July 2002 ECtHR, I v. UK (no. 25680/94), 11 July 2002 ECtHR, Ali Özcan v. Turkey (no. 44199/98), 3 October 2002 ECtHR, Arif Acarca v. Turkey (no. 45823/99), 3 October 2002 ECtHR, Habip Balci v. Turkey (no. 45822/99), 3 October 2002 ECtHR, Habip Gündoğdu v. Turkey (no. 47503/99), 3 October 2002 ECtHR, Helmi Başpinar v. Turkey (no. 45631/99), 3 October 2002 ECtHR, Mahir Kayseri v. Turkey (no. 46643/99), 3 October 2002 ECtHR, Mehmet Pektaş v. Turkey (no. 39687/98), 3 October 2002 ECtHR, Murat Soysever v. Turkey (no. 39826/98), 3 October 2002 ECtHR, Nuri Dağli v. Turkey (no. 45373/99), 3 October 2002 ECtHR, O.Ö. v. Turkey (no. 42137/98), 3 October 2002 ECtHR, Osman Balci v. Turkey (no. 48718/99), 3 October 2002 ECtHR, Özkan Dal and Erdal Özen v. Turkey (no. 45378/99), 3 October 2002 ECtHR, Şahin Özdaş v. Turkey (no. 45555/99), 3 October 2002 ECtHR, Tuncer Duman v. Turkey (no. 42788/98), 3 October 2002 ECtHR, Yusuf Önce v. Turkey (no. 45627/99), 3 October 2002 ECtHR, Ziya Çelikateş and Others v. Turkey (no. 45824/99), 3 October 2002 ECtHR, Agga v. Greece (no. 2) (nos. 50776/99; 52912/99), 17 October 2002

table of cases

xv

ECtHR, Algür v. Turkey (no. 32574/96), 22 October 2002 ECtHR, Beck, Cop and Bazely v. UK (nos. 43535/99; 43536/99; 43537/99), 22 October 2002 ECtHR, Perkins and R v. UK (nos. 43208/98; 44875/98), 22 October 2002 ECtHR, Yildiz v. Austria (no. 37295/97), 31 October 2002 ECtHR, Bilasi-Ashri v. Austria (no. 3314/02), 26 November 2002 ECtHR, Islamische Religionsgemeinschaft v. Germany (no. 53871/00), 5 December 2002 ECtHR, Dicle on Behalf of the Democracy Party (DEP) v. Turkey (no. 25141/94), 10 December 2002 ECtHR, Molla Houseïn v. Greece (no. 63821/00), 12 December 2002 ECtHR, A. v. UK (no. 35373/97), 17 December 2002 ECtHR, L. and V. v. Austria (nos. 39392/98, 39829/98), 9 January 2003 ECtHR, S.L. v. Austria (no. 45330/99), 9 January 2003 ECtHR, Imam v. Greece (no. 63719/00), 6 February 2003 ECtHR, Jakupovic v. Austria (no. 36757/97), 6 February 2003 ECtHR, Karabouyiouclou v. Greece (no. 63824/00), 6 February 2003 ECtHR, Ouzoun v. Greece (no. 63796/00), 6 February 2003 ECtHR, Toutziar v. Greece (no. 63949/00), 6 February 2003 ECtHR, Ramazan Akbulut v. Turkey (no. 45624/99), 6 February 2003 ECtHR, Refah Partisi (The Welfare Party) and Others v. Turkey (no. 41340/98), 13 February 2003 ECtHR, Öcalan v. Turkey (no. 46221/99), 12 March 2003 ECtHR, Deli Hatzoglou v. Greece (no. 67754/01), 3 April 2003 ECtHR, Kehagia v. Greece (no. 67115/01), 3 April 2003 ECtHR, Yilmaz v. Germany (no. 52853/99), 17 April 2003 ECtHR, Van Kück v. Germany (no. 35968/97), 12 June 2003 ECtHR, Garaudy v. France (no. 65831/01), 24 June 2003 ECtHR, Sedat Şen and Others v. Turkey (no. 45824/99), 8 July 2003 ECtHR, Craxi (no.2) v. Italy (no. 25337/94), 17 July 2003 ECtHR, Karner v. Austria (no. 40016/98), 24 July 2003 ECtHR, Koua Poirrez v. France (no. 40892/98), 30 September 2003 ECtHR, Socialist Party of Turkey (STP) and Others v. Turkey (no. 26482/95), 12 November 2003 ECtHR, Palau Martinez v. France (no. 64927/01), 16 December 2003 ECtHR, İpek v. Turkey (no. 25760/94), 17 February 2004 ECtHR, Görgülü v. Germany (no. 74969/01), 26 February 2004 ECtHR, Radovanovic v. Austria (no. 42703/98), 22 April 2004 ECtHR, Lotter and Lotter v. Bulgaria (no. 39015/97), 19 May 2004 ECtHR, Hannover v. Germany (no. 59320/00), 24 June 2004 ECtHR, Vergos v. Greece (no. 65501/01), 24 June 2004

xvi

table of cases

ECtHR, Chauvy and Others v. France (no. 64915/01), 29 June 2004 ECtHR, Doğan and Others v. Turkey (8803-8811/02, 8813/02 and 88158819/02), 29 June 2004 ECtHR, Leyla Sahin v. France (no. 44774/98), 29 June 2004 ECtHR, Hasan Sert v. Turkey (no. 47491/99), 8 July 2004 ECtHR, Ospina Vargas v. Italy (no. 40750/98), 14 October 2004 ECtHR, Mehmet Emin Yüksel v. Turkey (no. 40154/98), 20 October 2004 ECtHR, Woditschka and Wilfling v. Austria (nos. 69756/01, 6306/02), 21 October 2004 ECtHR, Çelik and İmret v. Turkey (no. 44093/98), 26 October 2004 ECtHR, Hasan İlhan v. Turkey (no. 22494/93), 9 November 2004 ECtHR, Dicle v. Turkey (no. 46733/99), 10 November 2004 ECtHR, Ünal Tekeli v. Turkey (no. 29865/96), 16 November 2004 ECtHR, Supreme Holy Council of the Muslim Community v. Bulgaria (no. 39023/97), 16 December 2004 ECtHR, Michele Dayras and Others v. France (no. 65390/01), 6 January 2005 ECtHR, Phull v. France (no. 35753/03), 11 January 2005 ECtHR, Py v. France (no. 66289/01), 11 January 2005 ECtHR, Ladner v. Austria (no. 18297/03), 3 February 2005 ECtHR, Taşkin and Others v. Turkey (no. 46117/99), 30 March 2005 ECtHR, Alija v. Greece (no. 73717/01), 7 April 2005 ECtHR, Jancikova v. Austria (no. 56483/00), 7 April 2005 ECtHR, Jarnevic & Profit v. Greece (no. 28338/02), 7 April 2005 ECtHR, Democracy and Change Party and Others v. Turkey (nos. 39210/98 and 39974/98), 26 April 2005 ECtHR, Öcalan v. Turkey (no. 46221/99), 12 May 2005 ECtHR, Wolfmeyer v. Austria (no. 5263/03), 26 May 2005 ECtHR, Emek Partisi and Şenol v. Turkey (no. 39434/98), 31 May 2005 ECtHR, H.G. and G.B. v. Austria (nos. 11084/02, 15306/02), 2 June 2005 ECtHR, Storck v. Germany (no. 61603/00), 16 June 2005 ECtHR, Nachova and Others v. Bulgaria (no. 43577/98; 43579/98), 6 July 2005 ECtHR, Asenov v. Bulgaria (no. 42026/98), 15 July 2005 ECtHR, P.M. v. UK (no. 6638/03), 19 July 2005 ECtHR, Siliadin v. France (no. 73316/01), 26 July 2005 ECtHR, B. and L. v. UK (no. 36536/02), 13 September 2005 ECtHR, Kaldik v. Germany (no. 28526/05), 22 September 2005 ECtHR, United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 44079/98), 20 October 2005 ECtHR, United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 59489/00), 20 October 2005

table of cases

xvii

ECtHR, Ouranio Toxo and Others v. Greece (no. 74989/01), 20 October 2005 ECtHR, Niedzwiecki v. Germany (no. 58453/00), 25 October 2005 ECtHR, Okpisz v. Germany (no. 59140/00), 25 October 2005 ECtHR, Keles v. Germany (no. 32231/02), 27 October 2005 ECtHR, Leyla Şahin v. Turkey (no.44774/98), 10 November 2005 ECtHR, Ivanov and Others v. Bulgaria (no. 46336/99), 24 November 2005 ECtHR, Kurti v. Greece (no. 2507/02), 29 November 2005 ECtHR, Özdemir v. Austria (no. 14308/03), 8 December 2005 ECtHR, Bekos and Koutropoulos v. Greece (no. 15250/02), 13 December 2005 ECtHR, Paturel v. France (no. 54968/00), 22 December 2005 ECtHR, Aristimuño Mendizabal v. France (no. 51431/99), 17 January 2006 ECtHR, R.H. v. Austria (no. 7336/03), 19 January 2006 ECtHR, The United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 59491/00), 19 January 2006 ECtHR, Aydin İçyer v. Turkey (no. 18888/02), 12 February 2006 ECtHR, Osman v. Bulgaria (no. 43233/98), 16 February 2006 ECtHR, Ognyanova and Choban v. Bulgaria (no. 46317/99), 23 February 2006 ECtHR, Tzekov v. Bulgaria (no. 45500/99), 23 February 2006 ECtHR, Martinie v. France (no. 58675/00), 12 April 2006 ECtHR, Ülke v. Turkey (no. 39437/98), 24 April 2006 ECtHR, Mohd v. Greece (no. 11919/03), 27 April 2006 ECtHR, Aydin Tatlav v. Turkey (no. 50692/99), 2 May 2006 ECtHR, Hussun and Others v. Italy (no. 10171/05), 11 May 2006 ECtHR, Midawi v. Italy (no. 17165/05), 11 May 2006 ECtHR, Mohamed v. Italy (no. 10601/05), 11 May 2006 ECtHR, Salem and Others v. Italy (no. 11593/05), 11 May 2006 ECtHR, Grant v. UK (no. 32570/03), 23 May 2006 ECtHR, Erbakan v. Turkey (no. 59405/00), 6 July 2006 ECtHR, Papa v. Greece (no. 21091/04), 6 July 2006 ECtHR, Agga v. Greece (no. 3) (no. 32186/02), 13 July 2006 ECtHR, Agga v. Greece (no. 4) (no. 33331/02), 13 July 2006 ECtHR, Jurisic and Collegium Mehrerau v. Austria (no. 62539/00), 27 July 2006 ECtHR, Kaja v. Greece (no. 32927/03), 27 July 2006 ECtHR, Walker v. UK (no. 37212/02), 22 August 2006 ECtHR, Konrad and Others v. Germany (no. 35504/03), 11 September 2006 ECtHR, Moser v. Austria (no. 12643/02), 21 September 2006 ECtHR, Tüzel v. Turkey (no. 2) (no. 71459/01), 31 October 2006 ECtHR, Düzgören v. Turkey (no. 56827/00), 9 November 2006 ECtHR, Tavli v. Turkey (no. 11449/02), 9 November 2006 ECtHR, Oya Ataman v. Turkey (no. 74552/01), 5 December 2006

xviii

table of cases

ECtHR, Yarar v. Turkey (no. 57258/00), 19 December 2006 ECtHR, Mutlu v. Turkey (no. 8006/02), 20 December 2006 ECtHR, Fener Rum Lisesi Vakfi v. Turkey (no. 34478/97), 9 January 2007 ECtHR, Musa and Others v. Bulgaria (no. 61259/00), 11 January, 2007 ECtHR, Alsayed Allaham v. Greece (no. 25771/03), 18 January 2007 ECtHR, Kavakçi v. Turkey (no. 71907/01), 5 April 2007 ECtHR, Ivanova v. Bulgaria (no. 52435/99), 12 April 2007 ECtHR, Vasilev v. Greece (no. 2736/05), 18 April 2007 ECtHR, Asebeha Gebremedhin [Gaberamadhiam] v. France (no. 25389/05), 29 April 2007 ECtHR, John v. Greece (no. 199/05), 10 May 2007 ECtHR, Runkee and White v. UK (no. 42949/98), 10 May 2007 ECtHR, Perlala v. Greece (no. 17721/04), 22 May 2007 ECtHR, Zelilof v. Greece (no. 17060/03), 24 May 2007 ECtHR, Noel Baker v. Greece (no. 32155/04), 21 June 2007 ECtHR, Peca v. Greece (no. 14846/05), 21 June 2007 ECtHR, Karagiannopoulos v. Greece (no. 27850/03), 21 June 2007 ECtHR, Yedikule Surp Pirgiç Ermeni Hastanesi Vakfi v. Turkey (no. 50147/99 and 51207/99), 26 June 2007 ECtHR, Celniku v. Greece (no. 21449/04), 5 July 2007 ECtHR, Angelova and Iliev v. Bulgaria (no. 55523/00), 26 July 2007 ECtHR, Hasan and Eylem Zengin v. Turkey (no. 1448/04), 9 October 2007 ECtHR, Bekir-Ousta and Others v. Greece (no. 35151/05), 11 October 2007 ECtHR, Gjashta v. Greece (no. 4983/04), 18 October 2007 ECtHR, Behar Metushi v. Greece (no. 34148/05), 25 October 2007 ECtHR, Luan Metushi v. Greece (no. 34643/05), 25 October 2007 ECtHR, D.H. v. Czech Republic (no. 57325/00), 13 November 2007 ECtHR, Petropoulou-Tsakiris v. Greece (no. 44803/2004), 6 December 2007 ECtHR, E.B. v. France (no. 43546/02), 22 January 2008 ECtHR, Alexandridis v. Greece (no. 19516/06), 21 February 2008 ECtHR, Ramzy v. the Netherlands, (no. 37201/06), 28 February 2008 ECtHR, Saadi v. Italy (no. 37201/06), 28 February 2008 ECtHR, El Morsli v. France (no. 15585/06), 4 March 2008 ECtHR, Sekseni v. Greece (no. 41515/05), 6 March 2008 ECtHR, Emin and Others v. Greece (no. 34144/05), 27 March 2008 ECtHR, Tourkiki Enosi Xanthis and Others v. Greece (no. 26698/05), 27 March 2008 ECtHR, Fener Rum Patrikliği (Ecumenical Patriarchate) v. Turkey (no. 14340/05), 8 July 2008 ECtHR, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40825/98), 31 July 2008 ECtHR, Mann Singh v. France (no. 24479/07), 13 November 2008

table of cases

xix

ECtHR, Dogru v. France (no. 27058/05) 4 December 2008 ECtHR, Kervanci v. France (no. 31645/04), 4 December 2008 ECtHR, Samatya Surp Kevork Ermeni Kilisesi, Mektebi ve Mezarliği Vakfi Yönetim Kurulu v. Turkey (no. 1480/03), 16 December 2008 ECtHR, Yedikule Surp Pirgiç Ermeni Hastanesi Vakfi v. Turkey (no. 36165/02), 16 December 2008 ECtHR, N.S. v. Italy (no. 37201/06), pending ECtHR, O. v. Italy (no. 37257/06), pending ECtHR, S. v. Italy (no. 37336/06), pending ECtHR, M.B.S. v. Italy (no. 38128/06), pending ECtHR, C.B.Z. v. Italy (no. 44006/06), pending ECtHR, B. v. Italy (no. 46792/06), pending

European Court of Justice ECJ, Case 4/73, Nold v. Commission [1974] ECR 491, 14 May 1974 ECJ, Case 36/75, Rutili v. Minister for the Interior [1975] ECR 1219, 28 October 1975 ECJ, C-213/89, The Queen v. Secretary of State for Transport, ex parte Factortame [1990] ECR I-2433, 19 June 1990

Domestic Courts France Court of Cassation (Crim.), 27 November 1966, Commandos anti-IVG, Bull. n. 431 Constitutional Council, 15 January 1975 (no. 74-54 DC), Interruption volontaire de grossesse (IVG) Court of Cassation (Ch. Mixte), 24 May 1975, Café Jacques Vabre, Bull. no. 4 Council of State, 27 October 1978, Debout, Rec. Lebon, p. 395 Court of Cassation (Civ. I), 18 May 1989, Bull. no. 198 Council of State (Ass.), 20 October 1989, Nicolo, Rec. Lebon, p. 190 Council of State (Ass.), 21 December 1990, Confédération nationale des associations familiales catholiques et autres, Rec. Lebon, 369 Constitutional Council, 9 May 1991 (no. 91-290 DC), Law establishing the territorial community of Corsica Council of State, 6 July 1995, Opinion on the ratification of the Framework Convention for the Protection of National Minorities Council of State, 24 September 1996, Opinion on France’s ratification of the European Charter of Regional or Minority Languages

xx

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Court of Cassation (Soc.), 22 January 1998, Koua Poirrez, JCP G (1998), II, 1011 Council of State (Ass.), 30 October 1998, Sarran, Levacher et Alii, Rec. Lebon, p. 368 Council of State (Ass.), 8 February 2007 (no. 279522), Gardedieu Court of Cassation (Soc.), 14 January 1999, Bozkurt, JCP (1999), II, 10082 Court of Cassation (Ass.pl.), 2 June 2000, Fraisse, Bull. no. 4 Constitutional Council, 19 November 2004 (no. 505-2004 DC), Traité établissant une Constitution pour l’Europe Germany Federal Constitutional Court, 22 May 1975, in BVerfGE 39, 334ff Federal Constitutional Court, Pakelli, 11 October 1985, in Neue Juristische Wochenschrift (1986), 1425–1427 Federal Constitutional Court, 26 March 1987, in BVerfGE 74, 370 Federal Administrative Court, 2 September 1997, in Neue Zeitschrift für Verwaltungsrecht (1999), 311 OLG Naumburg, 30 June 2004, Familienrechtszeitung (2004), 1510–1512 Federal Constitutional Court, 6 July 2004, (nos. 1 BvL 4/97, 1 BvL 5/97 and 1 BvL 6/97) Federal Constitutional Court, 14 October 2004, (no. 2 BvR 1481/04) Turkey Constitutional Court (E. 1990/25, K: 1991/1), 10 January 1991. Council of State, 5th Chamber (E: 1986/1723, K: 1991/933), 22 May 1991 Council of State, 5th Chamber (E: 2004/291, K: 2004/3370), 29 September 2004 Council of State, 13th Chamber (E: 2005/588, K: 2005/692), 8 February 2005 Court of Cassation, Civil Plenary (E: 2005/9-320, K: 2005/355), 25 May 2005 Court of Cassation, Penal Plenary (E: 2005/7-24, K: 2005/56), 24 May 2005 Court of Cassation, 9th Penal Chamber (E: 2004/3780, K: 2004/3879), 13 July 2004 UK High Court of Justice, Queen’s Bench Division, Hunt v. Clarke [1889] 61 L.T. 343 House of Lords, Derbyshire County Council v. Times Newspapers Ltd [1992] 3 WLR 28, 18 February 1993

table of cases

xxi

House of Lords, R v. Secretary of State for the Home Department, ex parte Brind and Others [1991] 1 All ER 720, 7 February 2001 House of Lords, R v. A [2001] 3 All ER 1, 17 May 2001 House of Lords, R v. Smith [2001] AC 146, 13 December 2001 House of Lords, Bellinger v. Bellinger [2003] UKHL 21, 10 April 2003 House of Lords, Ghaidan v. Godin-Mendoza [2004] UKHL 30, 21 June 2004

List of Contributors Dia Anagnostou, Senior Research Fellow, Hellenic Foundation for European and Foreign Policy (Athens); Lecturer of Politics, Macedonia University of Thessaloniki (Thessaloniki) Emmanuelle Bribosia, Professor of European and Human Rights Law, Director of the Legal Department of the Institute for European Studies, Université Libre de Bruxelles (Brussels) Kerstin Buchinger, Legal Researcher, Ludwig Boltzmann Institute of Human Rights (Vienna) and Constitutional Court Rashko Dorosiev, Programme Director, Centre for Liberal Strategies (Sofia) Yonko Grozev, Programme Director, Centre for Liberal Strategies (Sofia) Christoph Gusy, Professor of Public Law, Constitutional Law and Constitutional History, Bielefeld University (Bielefeld) Dilek Kurban, J.D., Programme Officer, Turkish Economic and Social Studies Foundation (Istanbul) Yiorgos Kaminis, Greek Ombudsman; Assistant Professor of Constitutional Law, National Kapodistrian University of Athens (Athens) Barbara Liegl, Political Scientist, Ludwig Boltzmann Institute of Human Rights (Vienna); CEO of the NGO ZARA – Zivilcourage und Anti-RassismusArbeit Susan Millns, Professor of Law, University of Sussex (Sussex) Sebastian Müller, Researcher, Faculty of Law, Bielefeld University (Bielefeld) Evangelia Psychogiopoulou, Research Fellow, Hellenic Foundation for European and Foreign Policy (Athens) Christopher Rootes, Professor of Political Sociology, University of Kent (Kent) Isabelle Rorive, Professor of Comparative Law, Faculty of Law, Université Libre de Bruxelles (Brussels)

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list of contributors

Clare Saunders, Lecturer in Politics, University of Southampton (Southampton) Serena Sileoni, Research Fellow in Constitutional Law, University of Florence (Florence) Daniel Smilov, Programme Director, Centre for Liberal Strategies (Sofia); Recurrent Visiting Professor of Comparative Constitutional Law, Central European University (Budapest); Assistant Professor of Political Theory, University of Sofia (Sofia) Astrid Steinkellner, Legal Researcher, Ludwig Boltzmann Institute of Human Rights (Vienna) Gabriel Swain, Research Associate, Centre for the Study of Social and Political Movements, University of Kent (Kent) Amaya Úbeda de Torres, Researcher, Institute of European Studies, Université Libre de Bruxelles (Brussels) and Centro de Estudios Políticos y Constitucionales (Madrid)

Chapter One The Strasbourg Court, Democracy and the Protection of Marginalised Individuals and Minorities Dia Anagnostou 1. Introduction The European Convention on Human Rights (hereby ECHR or Convention) is widely recognised to be a transnational regime of rights review that has achieved a kind of authority and jurisdiction that is unique in the world. An instrumental role in its post-World War II evolution has been played by its judicial arm, the European Court of Human Rights (hereby ECtHR or Court). The expansion of the Court’s jurisprudential scope and authority vis-à-vis national legal and political orders is evidenced in an unparalleled rise in its caseload since 1990.1 Tantamount to a kind of European-wide ‘rights revolution,’2 such an increase reflects sustained judicial attention to rights claims, as well as a widespread sense of effectiveness of the judicial review exercised by it. The expansion of the Court’s caseload cannot exclusively be attributed to the entry of 24 new states from central-east and southeast Europe and the former Soviet Union in the Convention system in the 1990s.3 Neither can it solely be seen to have resulted from the 1998 overhaul of the system that rendered mandatory the right to individual petition.4 It has, furthermore, and most importantly been accomplished by extending judicial interpretation of

1

2 3

4

On the evolution of the ECtHR case load over the past 10 years, see The European Court of Human Rights – Some facts and figures 1998–2008 (Strasbourg: Council of Europe, 2008). C. Epp, The rights revolution (Chicago: The University of Chicago Press, 1988), pp. 2–3. It is estimated that even if one adjusts for the increased number of contracting states that joined the Convention system in the 1990s, the number of individual applications between 1990 and 2002 still saw nearly a nine-fold increase. See R. Cichowski, ‘Courts, rights and democratic participation’, Comparative Political Studies 39/1 (February 2006), 50, at 58. This became effective with the entry into force of Protocol no. 11 to the ECHR in November 1998, which also abolished the Commission and created a single Court.

2

Chapter One

Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. Exemplifying this development is the ECtHR’s growing attention to and engagement with rights claims originating from marginalised individuals and individuals from minorities. Even though there is no comprehensive count to document this, a cursory overview of existing case-law collections and databases clearly indicates a substantially upward trend from 1990 onwards. By the term ‘marginalised individuals and minorities’ we mean those segments of the society who, due to a variety of reasons, are silenced within the democratic process, or at least are significantly constrained in voicing and pursuing their claims through it.5 These include individuals who belong to ethnic, religious or national minorities, immigrants who may or may not be citizens of a state, as well as those seeking political asylum. It also includes individuals whose rights are curtailed because they are in confinement conditions, displaced or imprisoned. It can also encompass persons who are at a disadvantage because of their political beliefs or who are socially stigmatised because of their sexual preference and identity. This description of marginalised individuals and minorities reflects far from a coherent set of issues and rights. Who these individuals and minorities are is intrinsically linked to national context and therefore varies greatly across different states, as we discuss subsequently in this introduction. Since the 1990s, marginalised individuals and minorities have appealed, alone or on behalf of a community6, to the ECtHR with compelling claims arising out of particular national conditions, distortions or gaps in domestic rights protection. In an increasingly variegated set of cases, they have challenged national laws, policies and practices on grounds of violating their rights under the Convention. This has enabled the ECtHR to assume a more visible role in protecting disadvantaged and vulnerable individuals and minorities, and to promote their legitimate claims in the public sphere of member states. At the same time, it has also brought to the fore longstanding concerns about the role of judicial review in relation to the democratic processes, which are particularly apposite with regard to a European, compared to a national, judiciary. The tendency of individuals from disadvantaged and vulnerable segments of society to resort to courts for the protection of their rights is far from a 5

6

C. Harvey and S. Livingstone, “Protecting the marginalised: The role of the ECHR”, North Irish Legal Quarterly 51 (2000), 445, at 445. Article 34 ECHR gives the right to file a petition to ‘any person, non-governmental organisation or group of individuals claiming to be the victim of a violation’ of one of the Convention rights. Groups and organisations can bring claims but they must be victims in their own right.

The Strasbourg Court, Democracy and the Protection

3

new phenomenon. It has primarily been a venue for pursuing rights and empowering individuals and groups who are less privileged and less likely to be influential through electoral politics and the legislative political process. For instance, such constraints led African Americans in the 1950s and 1960s in the United States to defend their civil rights through the courts, instigating far-reaching changes in civil rights politics and policies. Judicial initiatives to defend the rights of minorities, immigrants and other marginalised individuals have arguably also been on the rise in continental Europe over the past few decades.7 Such a trend has gone hand-in-hand with the expansion or enhanced importance of judicial review of legislation by constitutional tribunals.8 Yet, the resort of marginalised individuals and minorities to the ECtHR and the extent to which the latter has attended to their claims is a development of profound significance for a number of reasons. It is significant because it was neither intended nor anticipated by the original architects of the Convention system. Convention rights expressly apply to individuals rather than to any kind of groups.9 As a set of fundamental rights, the Convention contains first generation civil and political rights, rather than social and economic, let alone cultural, rights.10 Its catalogue of basic civil and political rights continues to lack a freestanding clause prohibiting discrimination on grounds of sex, ethnic or national origin, religion and political belief, among others. Any notion of minority-related or immigrants’ rights as such is not contained in the Convention.11 Indeed, minority rights had been explicitly removed from the European international system in the post-World War II period. Initiatives in the 1990s to grant protection to minorities as collective entities foundered on state opposition.12 Nonetheless, marginalised

7

8

9

10

11

12

C. Joppke and E. Marzal, ‘Courts, the new constitutionalism and immigrant rights: The case of the French Conseil Constitutionnel’, European Journal of Political Research 43 (2004), 823. C. Guarnieri, ‘Courts and marginalised groups: Perspectives from continental Europe’, International Journal of Constitutional Law 5/2 (2007), 187. S. Trechsel, ‘Human rights and minority rights – Two sides of the same coin? A sketch’, in Mahoney et al. (eds.) Protecting human rights: The European perspective (Berlin: Carl Heymanns Verlag KG, 2000), pp. 1443–1453. XJ. Conaghan and S. Millns, ‘Gender, sexuality and human rights: Introduction’, Feminist XLegal Studies 13 (2005), 3, at 6. On the weakness of the Convention in protecting cultural rights, see S. Stavros, ‘Cultural rights for national minorities – Covering the deficit in the protection provided by the ECHR’, IALS Bulletin 25 (January 1997), 7. P. Thornberry and M.-A. Martin Estebanez, Minority rights in Europe (Strasbourg: Council of Europe Publishing, 2004), p. 68. In the early 1990s, the Parliamentary Assembly of the Council of Europe had proposed an additional protocol to the ECHR for the protection of national minorities. This, however, was

4

Chapter One

individuals alone or on behalf of a community can claim, and have often claimed, Convention provisions to protect their rights and/or to promote a variety of demands vis-à-vis states.13 Through the Court’s interpretation of the political and civil rights safeguarded in the ECHR, the scope of the Convention regime progressively came to embrace a multifaceted set of rights claimed by marginalised individuals and minority concerns. This volume explores the role and impact of the ECtHR in protecting marginalised individuals and minorities. What factors and conditions have led growing numbers of such individuals and minorities to pursue their rights and freedoms in front of the ECtHR and how has the latter responded to these? Does the Convention and the jurisprudence of the Strasbourg Court enhance national level protection and expand their rights? Or do they mainly tend to fill in relatively minor gaps or occasional lapses in national rights guarantees? What are the implications for democracy at the national level? Comprising a set of eight country-based case studies, this volume explores these questions that have received little attention in the study of the Convention system.14 It examines litigation on behalf of marginalised individuals and minorities, and the relevant ECtHR jurisprudence across eight countries: Greece, Bulgaria, Turkey, the UK, France, Germany, Austria, and Italy. The role of the ECtHR and its impact on the rights and protection afforded to marginalised individuals and minorities is examined in reference to its jurisprudence in response to their claims. The importance of the judicial review exercised by it significantly varies across different states. It is inseparably linked, among other things, to two partly interrelated factors: a) the national legal and judicial context, and b) the extent and nature of relevant litigation on behalf of marginalised individuals and minorities across different states.

13

14

not accepted by the Committee of Ministers of the Council due to the lack of consensus among states. In place of the more extensive and elaborate aforementioned protocol to the ECHR, the Council adopted the more restrictive Framework Convention for the Protection of National Minorities. For a discussion on this, see F. Benoit-Rohmer, Framework Convention for the Protection of National Minorities (Strasbourg, Council of Europe, 1995), p. 22. G. Gilbert, ‘The burgeoning minority rights jurisprudence of the ECtHR’, Human Rights Quarterly 24 (2002), 736. The contributions to this volume are part of a larger research project that is centrally interested in identifying and explaining litigation patterns and domestic impact of the Strasbourg Court across a number of countries, with a specific emphasis on rights claims of minorities. The JURISTRAS project, the Strasbourg Court, democracy and the human rights of individuals and communities: patterns of litigation, state implementation and domestic reform (Contract no. FP6-028398), is coordinated by the Hellenic Foundation for European and Foreign Policy (ELIAMEP). Further information on the project’s research and activities can be found at: http://www.juristras.eliamep.gr.

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The ECtHR engagement with their rights claims and concerns cannot be understood independently from domestic legal, social, and political factors that may promote, or conversely limit, recourse to Strasbourg. Through its jurisprudence, it in turn further influences litigation patterns by pronouncing more expansive, or conversely, more restrictive interpretations of Convention rights in relations to such claims. The first part of this introductory chapter discusses the analytical assumptions and methodological considerations of this study. Subsequently, we depict the importance of national context in reference to domestic legal factors, judicial institutions of rights protection, as well as national scholarship of human rights and the ECHR. The third section discusses litigation patterns regarding marginalised individuals and minorities and the ECtHR jurisprudence in response to the petitions it has reviewed. The last part provides an overview of the volume.

2. Minorities and the Marginalised in the ECtHR: Analytical and Methodological Considerations The Convention provisions, of which the Strasbourg Court is the guardian, are closely linked to a particular liberal conception of ‘effective political democracy.’15 Separation of powers, accountability of government, the protection of individual rights primarily in public life but also respect of their right to private and family life are among its basic cornerstones. Majority rule is a central pillar of this democratic society, yet, it is equally recognized that it must be reconciled with the frequently unwelcome or unpalatable views held by minorities.16 As explicitly stated in Young, James and Webster (1981),17 a cardinal issue that the Court has grappled with in its jurisprudence has been how to prevent abuse of power by social and political majorities and to ensure fair treatment of minorities. Over the years, the Court has dealt with an extremely diverse set of concerns raised by different kinds of marginalised individuals and minorities.

15

16

17

In the preamble to the Convention, the signatory states explicitly affirmed ‘their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend’ (emphasis added). S. Marks, ‘The ECHR and its ‘Democratic Society’ ’, British Yearbook on International Law 66 (1996), 209, at 212. ECtHR, Young, James and Webster v. UK (nos. 7601/76 and 7806/77), 13 August 1981.

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These have originated from individuals whose views, ethnic-national origins or way of life set them apart from – and potentially in conflict with – the majority. Subject to majoritarian pressures, various forms of discrimination and consequently rights limitations have been individuals who belong to cultural, religious or ethnically distinct historical minorities or ‘new’ immigrant communities. Often, albeit not always, minority status translates into socialeconomic marginalisation and political disadvantage. But the political marginalisation of individuals, in the sense of not being able to enjoy the full spectrum of civil-political rights and therefore not being able to voice concerns through political processes, may also be due to confinement (to a prison, or mental hospital). It may also be due to lack of legal and citizenship status in a particular country, as it is the case for hundreds of thousands of immigrants and asylum seekers across Europe. The country case studies included in this volume cover judgments that encompass cases brought by individuals who belong to a minority group but also marginalised individuals which have been reviewed on the merits by the ECtHR. The relevant case law under study has originated both from historical religious and ethnic minorities but also increasingly from ‘new’ immigrant minorities and asylum seekers. In this regard, the selected case law touches upon areas of state activity that are closely associated with issues of national sovereignty and distinct national, cultural and historical traditions of member states. It is in such areas of state activity that a judicial review by the Strasbourg Court can potentially be more salient, but also more likely to come into conflict with state prerogatives and therefore be restrained and/or nationally resisted. Initially most petitions from marginalised individuals tended to appeal to the civil rights and freedoms contained in Articles 8–11 ECHR, which include respect for family and private life, religious freedom and conscience, freedom of expression, assembly and association.18 However, over the years, the range of rights claims has expanded to include most Convention provisions. The claims raised have extended beyond these core civil freedoms to encompass other Convention provisions such as Articles 2 (right to life), 3 (prohibition of torture, inhuman or degrading treatment), and 5 (right to liberty and security) among others. In addressing their grievances in front of the Strasbourg

18

While the vast majority of individual petitions to the ECtHR since 1958 by far involve claims and infringements of the right to fair trial (Article 6 ECHR), 1049 Court judgments concern Articles 8–11 ECHR, out of a total number of 8691 judgments issued by the ECtHR from 1958 until 2007, that is 11.5% (author’s estimates based on data drawn from the European Court of Human Rights Annual Activity Report 2007; and Activities of the Court 1958–1996). Articles 8 and 10 ECHR are among the top ten Convention provisions invoked in front of the Strasbourg Court. See R. Cichowski, ‘Courts, rights and democratic participation’, 63.

The Strasbourg Court, Democracy and the Protection

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Court, individuals have at times done so in conjunction with the nondiscrimination provision of Article 14 ECHR.19 The case law under study originates from eight countries that were selected: Austria, Italy, Germany, France, Greece, Bulgaria, Turkey and the United Kingdom. These countries have been selected on the basis of the following considerations. First, while all have cases from marginalised individuals and minorities reviewed by the ECtHR, they significantly differ on the extent of minority-related litigation and case law that they have produced. Countries like Germany and Italy have relatively few cases and adverse judgments, while the UK and Austria have produced significantly larger number of cases. This allows us to inquire into the national factors that promote, or conversely, limit recourse of marginalised individuals and minorities to the ECtHR. Second, the selected countries reflect wide-ranging variation in terms of political development. They include west European democracies that were among the founding members of the Council of Europe and the Convention system (France, UK, Italy, Austria, Germany), south European countries like Greece that made a transition to democracy in the 1970s, former communist countries that democratised in the 1990s (Bulgaria), and democracies in transition (Turkey). Such variation can provide insights into the nature and role of European rights review under different conditions of democracy and political development. Existing legal and social science studies have largely remained aloof to the relevance of the Convention and the role of the ECtHR regarding marginalised individuals and minorities. Legal studies have examined the structure and functions of the Strasbourg Court, as well as the impact of the Convention in relation to national legal approaches and the attitude of national judiciaries. They have advanced a perspective on it largely in reference to the legal structures and hierarchies within each state, i.e. to the status of international treaties in national law, the extent and forms of constitutional review, as well as the relations between the legislative and the judiciary branches.20 More recently, from a broader social science perspective, studies have probed into the consequences of the Convention and its reception in the domestic political and legal order more broadly (Greer 2006; Keller and Stone Sweet 2008). Legal scholars interested in the growing significance of the ECtHR and the Convention for

19 20

See Gilbert, ‘Burgeoning minority rights jurisprudence’, 750–780. B. Conforti and F. Francioni (eds.), Enforcing human rights in domestic courts (Netherlands: Kluwer Law International, 1997); A. Drzemczewski, European Human Rights Convention in domestic law (Oxford: Clarendon Press, 1983); D.J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995).

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minorities have mainly explored the subject on jurisprudential grounds. They have analysed the reasoning and approach of the Court in interpreting particular ECHR principles in response to minority and immigrant claims.21 Still, the resonance and potential consequences of such jurisprudence for states have also escaped the attention of these studies. This volume probes into the consequences that the ECHR incorporation and the Court’s case law have for national-level legal and judicial protection provided to individuals or particular social and minority groups. In this sense, it fills an important gap in the literature identified above. While specifically focusing on marginalised individuals and minorities, it also makes an important contribution to understanding better the nature and workings the Convention system as a whole. In particular, it sheds light to the ways in which the notion of ‘living instrument’ and the ‘margin of appreciation’ doctrine, central to the functioning of the ECHR, materialise in practice in areas that tend to be sensitive for state interests and national identity. By doing so, this study can provide important insights into the relationship between Europeanlevel rights review and national democratic processes. Rapidly changing and pluralist European societies continuously generate conflicting claims that necessitate ongoing review of the content of rights, as well as a redrawing of the boundaries between individual rights and public interests. Legal scholars have time and again dwelled upon the notion of the Convention as ‘living instrument’ originally articulated in Tyrer v. UK.22 It refers to the idea that the legal principles contained in it must be interpreted not in a static manner but in light of changing social conditions and consequently, shifting norms and values that progressively take hold in other member states. While relying on precedent, this assumption has at the same time enabled the ECtHR to depart from its own earlier approaches and advance new interpretations in light of social changes.23 For instance, this can be

21

22 23

For instance, on Article 9 ECHR, see C. Evans, Freedom of religion under the ECHR (Oxford, Oxford University Press, 2001). On the rights of refugees and immigrants, see H. Lambert, ‘The ECtHR and the rights of refugees and other persons in need of protection to family reunion’, International Journal of Refugee Law 11/3 (1999), 427. On ECtHR jurisprudence regarding the rights of historical minorities, see S. Spiliopoulou-Akermark, ‘The limits of pluralism – Recent jurisprudence of the European Court of Human Rights with regard to minorities: Does the prohibition of discrimination add anything?’, Journal of Ethnopolitics and Minority Issues in Europe 3 (2002), available at: http://www.ecmi.de; Gilbert, ‘The burgeoning minority rights jurisprudence’; Thornberry and Estebanez, Minority rights in Europe. ECtHR, Tyrer v. UK (no. 5856/72), 25 April 1978, para. 31. For a detailed and relatively recent discussion of the Convention as a ‘living instrument’ see A. Mowbray, ‘The creativity of the ECtHR’, Human Rights Law Review 5/1 (2005), 57.

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9

evidenced in the case of sexual minorities and individuals who undergo gender reassignment in the UK. In 1986, the Court did not find any infringement of the Convention but it had expressed the need for domestic authorities in the UK to ‘keep under review’ the appropriateness of domestic law.24 By 2002, however, it finally ruled in the context of another case25 that the legislative inaction of the British authorities had failed to adequately safeguard the ECHR rights of transsexuals.26 Partly related to this evolutionary dynamic in interpreting Convention principles is the infamous doctrine of the ‘margin of appreciation.’ While the Court’s role is restricted to determining whether a state has infringed upon a Convention right in a specific case, discretion is granted to national authorities to define the scope of the rights contained in the ECHR.27 In essence, the ‘margin of appreciation’ doctrine captures the subsidiary role of the Convention system and of the ECtHR review as secondary and auxiliary to national structures and norms of rights protection. Prime responsibility for human rights protection rests with national authorities and structures.28 It also draws attention to the diverse legal traditions and cultures of member states that shape how they put to practice Convention norms. In this sense, far from being a source of discord, it is actually considered as a ‘vital ingredient’ in maintaining cohesion.29 This study also provides insights into how changing social standards and deference to national authorities materialise in rights claims advanced by minorities and marginalised individuals, which tend to be at the heart of national sovereignty. It could be argued that the ‘margin of appreciation’ doctrine also entails an implicit recognition about the primacy of national-level democratic processes, as well as about the need for judicial deference to national elected bodies enacting legislation. In this sense, this doctrine touches upon long-debated issues regarding judicial activism and the role and scope of judicial review in contemporary democracies. The dilemmas that they raise are particularly apposite and conspicuous with regard to a European transnational tribunal.

24 25 26 27

28

29

ECtHR, Rees v. UK (no. 9532/81), 17 October 1986, para. 47. ECtHR, Christine Goodwin v. UK (no. 28957/95), 11 July 2002. Mowbray, ‘The creativity of the ECtHR’, 69. S. Greer, The margin of appreciation: Interpretation and discretion under the ECtHR (Strasbourg: Council of Europe Publishing, 2000). P. Mahoney, ‘Judicial activism and judicial self-restraint in the ECtHR: Two sides of the same coin’, Human Rights Law Journal 11 (1990), 57, at 81. R. Blackburn and J. Polakiewicz (eds.) Fundamental rights in Europe: the ECHR and its member states 1950–2000 (Oxford: Oxford University Press, 2001), p. 24.

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3. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship While the case studies included in this volume draw from legal scholarship, they also go beyond it by examining litigation and ECtHR jurisprudence on minority-related claims in relation to their respective national context. This approach is premised on the assumption that the pursuit of rights through the ECtHR and the consequences of its judgments for the rights protection afforded to marginalised individuals and minorities are intrinsically connected to national legal context. Individual litigation against states in Strasbourg tends to arise in areas of activity characterized by nationally specific structural deficiencies, legal-judicial distortions, administrative or other kind of systematic shortcomings in human rights guarantees. Exhaustion of domestic remedies is a precondition before one can petition the ECtHR, therefore, individuals must first seek judicial protection before national courts. Following their conviction or non-vindication by national courts, such individuals resort to Strasbourg in pursuit of a remedy that they were unable to obtain at the national level. In view of the subsidiary nature of the Convention and the Strasbourg-based Court, the case studies in this volume emphasise the interaction between national-level legal judicial remedies and the role of the ECHR system in upholding, complementing, or extending the latter. In this regard, the significance of the Convention and the ECtHR judgments as such vary greatly across states. The country chapters included in this volume examine the national context of each country under study in reference to the domestic legal status of the ECHR, the national judicial institutions for rights review, as well as national academic approaches to the Convention and to rights protection in general. The national legal context shapes how the Convention enters into and potentially affects national systems of rights protection. States that become parties to the Convention have a legal obligation to make its provisions applicable in domestic law and to ensure the enjoyment of rights and freedoms enshrined in these.30 It is left up to states to select the means best-suited to this end, as long as domestic authorities can provide an ‘effective remedy’ under national law to an individual claiming that a violation of his/her rights under the ECHR.31 The means whereby states choose to grant direct effect to the Convention vary, therefore, so does its status in the hierarchy of internal legal

30

31

Article 1 of the ECHR stipulates that the contracting parties undertake to secure the rights and freedoms enshrined in it to individuals within their jurisdiction. J. Polakiewiz, ‘The application of the ECHR in domestic law’, Human Rights Law Journal 17 (1996), 405, at 405.

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norms. Some states grant it the status of ordinary law (e.g. Turkey, Germany), others supra-legislative status (that is, superiority over prior and subsequent legislation, such as Belgium and the Netherlands) and yet others, the status of constitutional law (Austria).32 By now, even though this is not strictly required, the vast majority of the contracting states have incorporated the Convention into national law (with the exception of Ireland and Norway), including all 10 central and east European states that have recently joined the EU as well as the associate candidate states of the EU. A related factor defining the relevance of the Convention and the ECtHR for the protection afforded to marginalised individuals and minorities in each country is the existence of an effective system of rights review of legislative and executive acts in relation to a higher set of constitutional norms. In states without domestic rights review systems, like Britain until 2000, the ECHR is likely to fill an essential void in this respect. Conversely, in countries with well-developed systems of rights review, like Germany, litigants, including those who are marginalised individuals and minorities, are more likely to seek redress through domestic courts. Even though the relationship between a highly developed national system of human rights review and conformity with ECHR and the Strasbourg Court judgments is generally positive, this relationship is not always a clear or direct one.33 While important, the incorporation of the Convention domestically is not in and of itself sufficient to guarantee its application by national courts. Equally, if not more important, is the willingness of domestic courts to consider the ECHR in defining the scope of rights, as well as to seek conformity with the evolving jurisprudence by the ECtHR. The extent to which national courts accept that the Convention creates rights that can be relied upon directly before them varies from state to state. For example, in Germany, where there is a well-established national bill of rights, national courts have preferred to rely upon the latter instead of invoking the ECHR. In contrast, in states where the Convention has constitutional status like Austria, national courts have extensively relied upon it. Equally, if not more important, is the extent to which national courts are willing to seek conformity with the way in which Convention principles are applied and interpreted in the jurisprudence of the ECtHR. Repeat litigation and adverse ECtHR judgments on behalf of particular

32

33

J. Polakiewiz and V. Jacob-Foltzer, ‘The ECHR in domestic law: The impact of Strasbourg case-law in states where direct effect is given to the Convention’, Human Rights Law Journal 12/4 (30 April 1991), 125. H. Keller, ‘Reception of the ECHR in Poland and Switzerland’, ZaoRV 65 (2005), 283, at 246.

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kinds of minority-related claims, for instance, is often a reflection of diverging and conflicting national judicial interpretations. Overall, and regardless of the way in which the Convention is incorporated in the domestic legal structure, the reliance of national courts upon the Convention and their conformity to Strasbourg Court interpretations is farreaching and has progressively increased over the past 20 years.34 Notably, Convention norms and the Strasbourg case-law have successfully managed over time to diffuse in the domestic sphere of the member states not only, or even primarily, in response to strict legal obligations. Instead, they gradually acquired a persuasive and authoritative character which national judges, legislators and other social and political actors are increasingly disinclined to contradict, even in a state like the UK where prior to 1998 the ECHR was not formally incorporated into national law. By the 1980s, many years before its formal incorporation in 2000, British courts had introduced the ECHR into national law ‘through the back door’ by presuming that parliament had intended to legislate in conformity and not in conflict with the Convention, without explicitly invoking the provisions of the latter.35 Another factor that the individual country chapters consider pertains to national academic scholarship and legal approaches to the Convention and to rights protection in general. National legal scholarship has been a central mechanism facilitating, or conversely restricting, reception of the Convention in domestic legal and political order. As it is emphasised in the context of a recent study, teaching about the ECHR and pursuing its study in scholarly work – particularly but not only in the discipline of law – promotes awareness about it and influences how lawyers and judges view it and engage with it in practice.36 Besides the ECHR, it has been noted that academic engagement with and legal approaches to human rights and their protection may provide, and has provided, important support to judges as protectors of marginalised groups and minorities. The emergence of a legal academia that advances the centrality of rights protection has been an important element supporting a progressive vision of the judicial role, as well as the emergence of a progressive wing among national judiciaries.37

34 35

36

37

Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, p. 25. R. Higgins, ‘The role of domestic courts in the enforcement of international human rights: The United Kingdom’, in Conforti and Francioni (eds.), Enforcing human rights in domestic courts, (Netherlands: Kluwer Law International, 1997) pp. 37–58, at 45–48. A. Stone Sweet and H. Keller, ‘Introduction: The reception of the ECHR in national legal orders’, in Keller and Stone Sweet (eds.) A Europe of rights: the impact of the ECHR on national legal systems (Oxford: Oxford University Press, 2008), pp. 11–36, at 33. Guarnieri, ‘Courts and marginalised groups’, p. 205.

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4. Litigation on Behalf of Marginalised Individuals and Minorities Notwithstanding the existence of extensive rights guarantees domestically, the ECHR and Strasbourg judgments have a significant subsidiary role in facilitating national rights protection in Europe. Effectively safeguarding human rights in practice is a continuous challenge in the context of pluralistic and multi-cultural societies and in light of new challenges that may prioritise state security imperatives. By interpreting Convention principles, the ECtHR reflects upon how to legitimately restrict and justly allocate such rights in the face of conflicting claims and new societal challenges. It reviews the scope of rights and permissible restrictions that governments can impose under certain circumstances. In doing so, it primarily reviews Convention conformity of domestic laws, administrative practices or judicial approaches that are not regarded problematic from a nationally-specific point of view regarding rights protection. Distinct national legal and political traditions may have rendered some state laws and practices less consonant with specific kinds of minorityrelated rights claims. Petitions submitted by marginalised individuals and minorities have rapidly increased since the mid-1990s. Linked to different national contexts and historically specific conflicts, minority-related litigation of individuals in Strasbourg originates from a variety of different groups across states. It tends to be more frequent from states where treatment and levels of protection accorded to various kinds of minorities (due to historical or other factors) diverges significantly from Convention provisions and their interpretation by the ECtHR. Cases reviewed by the Court pertain to minority education, the religious life and institutions of a minority community, conflicts between a traditional way of life and state policies, or various issues pertaining to minority participation in the cultural, religious, social, economic and public life.38 Individuals belonging to Roma communities brought petitions in Strasbourg originally against Britain, under Article 8, claiming violation of their right to lead a traditional way of life which was restricted by national authorities due to planning and environmental considerations. Over the past 10 years, however, cases on behalf of the Roma have greatly increased and diversified in the violations they seek to redress, originating from several countries such as Greece, Bulgaria, Romania, the Czech Republic and Croatia, among others. A great deal of cases brought to the Court on behalf of marginalised individuals and minorities can be seen to originate from some kind of ‘strategic

38

Hasan and Chaush v. Bulgaria (no. 30985/96), 26 October 2000; Kokkinakis v. Greece (no. 14307/88), 25 May 1993.

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litigation.’ This refers to instances in which individual or collective actors ‘use the court system to attempt to create broad social change.’39 While the individual litigant’s interest may be an objective too, legal action is taken with a focus on law and policy reform, with cases chosen and targeted for bringing to surface broader problems and issues. Besides seeking to challenge existing laws and policies considered detrimental to the rights of individuals and groups, strategic litigation can have less ambitious – but equally important – goals such as clarifying laws, promoting legal and human rights literacy, documenting injustices, changing public attitudes and empowering vulnerable groups.40 Litigation can also be strategic when it is pursued as one component of a broader mobilisation strategy with goals that go beyond individual remedy; namely, to exercise political pressure or to influence public opinion and discourse. A good number of minority-related cases are defended by public interest law firms and NGOs from various countries across Europe. Strategic litigation can take a variety of forms as it is shown in the countrybased case studies included in this volume. Petitions brought in Strasbourg may have a broader objective to challenge state laws and practices regarding political and civil rights of minorities, the ability of immigrants to stay in a country, or their treatment by the police, among others. In some cases, litigation by individuals from particular social groups is manifested in a string of cases, which, however, are not necessarily coordinated, neither are they selected strategically. This appears to be the case in Austrian, British, Greek and French petitions from foreigners, while cases originating from Kurds in Turkey have a more concerted character. Conversely, Jehovah Witnesses’ cases against Greece and Bulgaria are for the most part a component of a broader and well-orchestrated political campaign to promote their religious rights. Litigation in Strasbourg can also be employed as an explicit strategy by minority groups in pursuit of political ends, like it is, for instance, among ethnic minorities in Greece, or partly among Kurds in Turkey. Alternatively, litigation may involve small in number or single cases targeted by lawyers or public law firms for their importance and as a means of contesting an issue politically, sometimes in consultation with civil society organizations. In several cases that have been brought to its attention, the Court has dealt with conflicts pertaining to the political and civil rights of minorities. In

39

40

Strategic litigation of race discrimination in Europe: from principles to practice, published by European Roma Rights Centre, INTERIGHTS and Minority Policy Group (Nottingham: Russell Press Ltd., 2004), p. 35. Strategic litigation of race discrimination in Europe: from principles to practice, pp. 36–37.

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countries like Greece and Bulgaria, relevant litigation largely originates from individuals belonging to ethnic and religious minorities, while in Turkey overwhelmingly from the Kurdish population. A significant number of petitions concern registration and recognition of minorities and minority institutions, including political parties, claiming a breaching of rights under Articles 9, 10 and 11, alone or in conjunction with Article 14 ECHR. In these cases, state authorities dissolve, restrict or do not grant permission for the establishment of such association, invoking reasons of national security and territorial integrity.41 Linked to the promotion and protection of a minority’s identity are also restrictions imposed upon freedom of expression which is essential for a community’s ability to advance its views and positions. There are several such petitions by individuals from the Kurdish community in Turkey. Regarding the claims of marginalised individuals in Turkey, we also consider the few cases brought by persons whose public expression of religious faith is restricted, even though it is the faith of the Muslim majority. Despite the latter, for historical and political reasons specific to the Turkish context, these individuals have been excluded from the political process and public life. If claims raised by historical ethnic and religious minorities mainly originate from east and southeast European countries, cases pertaining to sexual minorities primarily originate from the UK, France and Austria. It concerns individuals whose rights are restricted or who are discriminated against because of their sexual identity, such as homosexuals and transgender persons. Differences in the kinds of claims and violations that arise across states have to do with specific historical conditions, distortions and structural problems characterizing distinct national settings. For instance, as late as 2000, the persecution of male homosexual conduct under 18 was a specifically Austrian problem in contravention to Article 8 ECHR, while restrictions on the rights of non-Orthodox religions have been a specifically Greek and more recently Bulgarian problem. Over the past 15 years the Strasbourg Court has also witnessed a growing number of petitions from ‘new’ immigrant minorities and asylum seekers. These have originated as much from older immigration countries such as Austria, France and the UK, as from south European countries that have relatively recently experienced a large immigration influx. The Convention does not contain any specifically immigrant rights, neither does it recognize any

41

For instance, such cases are ECtHR, Sidiropoulos v. Greece (no. 26695/96), 10 July 1998; ECtHR, Gorzelik and Others v. Poland (no. 44158/98); or ECtHR, Stankov and United Macedonian Organization ILINDEN v. Bulgaria (nos. 29221/95 and 29225/95), 2 October 2001.

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Chapter One

right to be granted asylum as such. Nevertheless, individuals from such groups have appealed to various Convention norms to redress a variety of problems and to seek protection from excesses in the exercise of state power. For instance, asylum seekers facing deplorable detention conditions claimed to have been subjected to inhumane or degrading treatment (Article 3 ECHR),42 to have been deprived of their liberty contrary to Article 5(1) ECHR,43 or to have their right to family life under Article 8 ECHR violated when a deportation order from a country where someone has established himself/herself is issued.44

5. The ECtHR Jurisprudence As a legal corpus of rights and freedoms, the Convention is comprised of highly abstract and general principles that do not necessarily provide a more advanced set of fundamental rights than what is already enshrined in national constitutions around Europe. In practice, they become signifi cant and potentially consequential for states and individuals through their elaboration in the Court’s case law. The Court elaborates on the application and meaning of Convention provisions on a case-by-case basis and does not engage with in abstracto review of national legislation and practices. In response to mounting complaints, the Court’s decisions and judgments began to scrutinise and potentially challenge state laws, policies and practices that are sensitive for national interests and security, pertaining to minorities and the treatment of immigrants and asylum seekers. In the context of an ‘effective political democracy’ some fundamental rights can legitimately be restricted (and are restricted) by state authorities. Such restrictions can be justified under certain conditions. Indeed, this is explicitly acknowledged and provided for in Articles 8–11 ECHR that have a common logic and structure, as well as a common goal in the context of democratic society as outlined above. The second paragraph in Articles 8–11 commonly provides that restrictions upon individual rights must be provided by law, they must be directed to a broader legitimate aim, such as national security or state integrity, public order or health, and they must be ‘necessary in a democratic society’ or made imperative by a ‘pressing social need.’ The need to delineate

42 43 44

See for instance ECtHR, Dougoz v. Greece (no. 40907/98), 6 March 2001. ECtHR, Amuur v. France (no. 19776/92), 25 June 1996. See for instance ECtHR, Beldjoudi v. France (no. 12083/86) 26 March 1992; and ECtHR, Nasri v. France (no. 19465/92) 13 July 1995.

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such balances is explicitly articulated in Articles 8–11 ECHR, with regard to which the ECtHR explicitly applies a proportionality test: Any imposed limitations must be ‘proportionate’ to the legitimate aim pursued. This proportionality test is characterized as ‘one of the most intrusive forms of judicial supervision known: it requires courts to stand in judgment of the policy choices of state officials’.45 Particularly prone to face rights restrictions, as allowed for by the second provision of Articles 8–11 ECHR, are individuals and groups who do not enjoy a dominant position in society. They may be individuals whose views are not accepted by the majority or who belong to various kinds of minorities.46 A great number of petitions reviewed by the ECtHR involve conflicts between the rights of individuals from such societal segments and the needs and priorities determined by states and majoritarian concerns. Through its case-law, the Court has sought to interpret the scope of individual rights and freedoms, and to demarcate and elaborate upon the conditions under which restrictions can be justified in the specific circumstances that arise in individual cases. Closest to a specifically minority-relevant right is Article 14 ECHR as it prohibits discrimination based, inter alia, on race, colour, language, national origin or association with a national minority. In proscribing discrimination, Article 14 reflects an attempt to respond to the traditional criticism that traditional liberal democracy in practice fails to ensure citizens’ equality through the protection of formal civil and political rights. Systematic asymmetries and structural inequalities of power and resources often exist on the basis of class, race, sex, ethnic background, etc., which prevent people from fully enjoying their rights as equal citizens.47 Its aim is to ensure that equal treatment is granted to groups and individuals who are in an analogous position and that no distinctions are made among them without reasonable justification.48 The weakness of Article 14 ECHR as legal ground stems from two aspects. First, as a non-discrimination clause it is an auxiliary rather than a free-standing right: A claim for discriminatory treatment must be invoked in conjunction with one of the Convention’s substantive provisions (including Articles 8, 9, 10 and 11).49 Even though the facts of a case may not show a violation of a

45 46 47 48

49

Stone Sweet and Keller, ‘Introduction: The reception of the ECHR in national legal orders’, p. 19. Marks, ‘The ECHR and its democratic society’, p. 215. Marks, ‘The ECHR and its democratic society’, p. 230. O.M. Arnardottir, Equality and non-discrimination under the ECHR (The Hague: Martinus Nijhoff Publishers, 2003), pp. 10–11. Protocol no. 12 to the ECHR adopted in November 2000 provides for the first time a right to non-discrimination separate from the other substantive articles, however, it has not yet been ratified by the minimum necessary number of member states that will enable it to enter into force.

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Chapter One

specific right in isolation, the violation may lie in the fact that the restriction imposed upon it was done so in a discriminatory fashion, undermining equality between citizens.50 The second shortcoming is that in its application of Article 14 ECHR, the Court does not recognize indirect discrimination. The latter may arise in conditions in which a law that equally applies to everyone may have a disproportionate (and adverse) impact on one part of a society.51 In recent and minority-related judgments, however, the Court departs from its previous approach to identify the occurrence of indirect discrimination, and to recognise it as a ground for state infringement of the Convention.52 The receptivity of the ECtHR to claims raised by marginalised individuals and minorities varies and it has changed over time. For instance, the Court has been particularly unreceptive to claims about a culturally distinct way of life, such as those raised by Roma individuals against the UK. In a series of cases, the ECtHR rejected claims about their right to station caravans under Article 8 ECHR which was refused by British authorities on various grounds.53 At the same time, disagreements between the Commission and the Court, as well as the extent of dissent among the judges in subsequent cases brought forth by Roma individuals54 is indicative of the fact that the nature and scope of culturally-specific rights claimed by individuals belonging to minorities is under ongoing controversy and elaboration. Over time, the Court has shown greater, if inconsistent, receptivity to Roma claims about infringements of their rights, including claims of discrimination.55 On the other hand, the ECtHR has been more receptive to claims about freedom of expression, association and political participation of minorities. Such rights are often weighed against state claims that minority actions threaten national security and territorial integrity. Depending on the context and circumstances, however, there are also cases in which the Court was not

50

51 52 53 54

55

J.G. Merills and A.H. Robertson, Human Rights in Europe – A study of the ECHR (Manchester: Manchester University Press, 4th Edition, 2001), p. 199. Gilbert, ‘The Burgeoning minority rights jurisprudence of the ECtHR’, 747. ECtHR, D.H. v. Czech Republic (no. 57325/00), 13 November 2007. ECtHR, Buckley v. UK (no. 20348/92), 25 September 1996. For instance, in the cases of Chapman v. UK, Coster v. UK, Beard v. UK, Lee v. UK, and Jane Smith v. UK, the Court rejected claims about their right (under Article 8 ECHR) to station caravans in land that they bought, which was refused by British authorities on grounds that the stationing of caravans was not in conformity with planning regulations. Yet, notably the Grand Chamber judgments on these cases were narrowly decided by ten votes to seven. See Thornberry and Martin Estebanez, Minority rights in Europe, pp. 70–71. See K. Henrard, ‘The ECHR and the protection of Roma as a controversial case of cultural diversity’, European Diversity and Autonomy Papers EDAP 5, 2000, available at: http://aei .pitt.edu/6162/01/2004_edap05.pdf.

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convinced by litigants, or appeared to accord too much discretion to national authorities.56 While many detected violations of the Convention are minor, unintentional and require few changes from the offending state, not infrequently, Court interpretations may fundamentally challenge entrenched national laws and practices.57 With regard to immigrants and asylum seekers, the Court has taken a highly cautious and restrictive approach, occasionally making an expansive breakthrough in a legal norm followed by narrow delimiting of its application. For instance, this was the case with regard to the non-refoulement principle of not returning a person to his/her country of origin, where s/he is likely to face ill-treatment. Acting contrary to it has been interpreted to infringe upon Article 3 ECHR. The Court took this step despite the fact that in strictly contractual terms this could be seen to be outside its jurisdiction as the state where ill-treatment would occur was not a party to the Convention.58 At the same time, it carefully set the standard of proof very high, shying away from recognising any kind of a right to asylum and upholding state prerogatives to decide about the entry and stay of non-nationals. Notwithstanding its cautious and incremental approach, the Court has highlighted the importance of speedy review of asylum-seeking applications, as well as of the existence of an effective and accessible procedure to review such requests.59 At the same time, its more firm recognition of the right of immigrants to family life by the ECtHR is seen to stem from the fact that such rights had already been applied by domestic courts vis-a-vis aliens.60 Overall, in the past 15 to 20 years, the ECtHR has become increasingly receptive to claims from marginalised individuals and minorities, in spite of the fact that minority-related or immigrants’ rights as such are not contained in the Convention.61 Experts on the subject recognise that the ECtHR has been

56

57

58 59 60 61

For instance, consider the Court’s acceptance of the applicants’ claim to form a Macedonian cultural association in the case of Sidiropoulos v. Greece, on the one hand, but its refusal to vindicate similar claims in the case of Gorzelik v. Poland. In the latter, the Court accepted the refusal of Polish authorities to register ‘The Union of People of Silesian Nationality’, pointing out to the need for concessions by individuals and minorities ‘so as to ensure the greater stability of the country as a whole.’ L.R. Helfer and A.-M. Slaughter, ‘Toward a theory of effective supranational adjudication’, The Yale Law Journal 107/2 (November 1997), 273, at 329. Harvey and Livingstone, ‘Protecting the marginalised’, 385. Harvey and Livingstone, ‘Protecting the marginalised’, 458. Joppke and Marzal, ‘Courts, the new constitutionalism and immigrant rights’, 837. P. Thornberry and M.A. Martin Estebanez, ‘The ECHR and ‘ethnic’ questions’. in Thornberry and Martin Estebanez (eds.), Minority rights in Europe (Strasbourg: Council of Europe Publishing, 2004), p. 68.

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‘…in the process of sharpening its sensitivity to ‘ethnic issues,’ particularly since the 1990s when the politics of minority recognition and the geopolitical changes in Europe have pressed on it.62 It can be argued that through its jurisprudence, the ECtHR has pushed states to supply more compelling and evidence-based justification in curtailing rights pertaining to individuals and minorities. Regarding immigrants and asylum seekers, it is argued that with all its limitations the Court has been prepared to ‘bring both groups within its regime of rights protection.’63

6. Overview of the Volume This volume examines the diverse social-legal and institutional context that define litigation in, and jurisprudence of, the Strasbourg Court in relation to marginalised individuals and minority-related rights claims across eight countries. Each country chapter provides an overview of litigation actors and patterns under the selected rights claims, as well as of the consequences of ECtHR jurisprudence for rights protection in the selected domains. All together, they suggest a more contextual approach to understanding the domestic impact of the ECtHR. Besides legal structures and hierarchies, it also includes national judicial approach and practice, as well as academic and political views on the Convention and the Court’s case law. By providing a selective overview of nationally-based literature on the Convention and the ECtHR, this collection can also serve as a source book for those interested in the topics of Strasbourg Court litigation, jurisprudence and its impact in the countries that are covered. Against its respective national context, each country chapter explores litigation on behalf of marginalised individuals and minorities, as well as the relevance and role of the ECHR and the Court’s jurisprudence for the latter. The Austrian chapter highlights the great significance attributed to the Convention as reflected in the constitutional status that it enjoys which, nevertheless, has not in and of itself been consequential for its receptivity by Austrian authorities. Particular features that have to do with the historical origins and contemporary training of judges have undermined its influence in domestic judicial approaches to rights protection. They have led to a certain ambivalence or rejection of the ECHR as something ‘external’ and foreign, therefore subordinate to national perspectives and rights guarantees. Nonetheless, the Convention and the ECtHR judgments have come to be salient in a number of

62 63

Thornberry and Martin Estebanez, ‘The ECHR and ‘ethnic’ questions’, p. 68. Harvey and Livingstone, ‘Protecting the marginalised’, 464.

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areas that have to do with specific Austrian conditions and historical reasons such as freedom of expression in relation to extreme right wing views and state broadcasting monopoly. The large numbers of marginalised individuals and minorities from Austria who have taken recourse in the Strasbourg Court is attributed to prevailing political and social attitudes towards minorities as reflected in surveys. It is also linked to increasing activism among NGOs representing immigrants. Strasbourg Court cases brought by individuals belonging to marginalised groups in Austria cluster around three major issues: The situation and rights of aliens and asylum seekers; the legal and factual problems faced by homosexuals; and, finally, religious minorities. Immigrant cases concern residence prohibitions, access of third country nationals and nationals from the new EU members of central and east Europe to the labour market, political asylum, and access of foreigners to social benefits such as emergency assistance. The Court has been receptive to the claims of immigrants in a large number of these cases, even though for the most part Austrian authorities have responded to the judgments on a case-by-case basis. Homosexuals complaining about different age of consent for male homosexuals who are minors have been vindicated by the Court. Also vindicated are Jehovah Witnesses seeking custody, and recognition as a religious community. In Bulgaria in the 1990s, the Convention and its monitoring mechanisms served to fill in a large gap in promoting basic rights after the transition to democracy, due to the lack of domestic tradition and effective institutions during the communist period. As the domestic judicial system was not up to the task of providing protection, the ECtHR turned out to be the ultimate guarantor of human rights. The post-1990 period of the country’s democratisation allowed majority prejudices and hostilities toward marginalised groups to be voiced through the political process. The large number of judgments against Bulgaria, including cases concerning marginalised individuals and minorities, is also attributed to the increasing use of national courts and the ECtHR, by individuals but also NGOs to address broader policy issues. Cases concerning marginalised individuals and minorities against Bulgaria concern state interference in the religious affairs of marginalised groups, racially-motivated violence against the Roma, prohibition of minority political parties, refusals to register a party or an organisation, restrictions on public gatherings and rallies and one case raising gender issues. The judgments of the ECtHR on Bulgarian cases have arguably enhanced the protection of basic rights of vulnerable groups. In a large number of cases where the national justice system has either contributed to the violation of basic rights or failed to remedy the violations, the ECtHR has provided a remedy. From a broader perspective, the jurisprudence of the ECtHR has had a

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notable impact on the Bulgarian legal system, and, more broadly, on Bulgarian legal culture. At the same time, although Bulgarian courts increasingly rely on the ECHR in their jurisprudence, the introduction of European human rights law into domestic law has been slow and difficult. This has been particularly true in the field of politically sensitive issues, such as those regarding minorities, in which courts traditionally have been more deferential to executive decisions. In interpreting political rights and the right to association in a particular case, Bulgaria’s Constitutional Court developed what could be called a ‘militant democracy’ attitude. It exaggerated the danger presented by a specific political organisation and its activities, such as public meetings and demonstrations – the OMO Ilinden organisation. The Italian chapter shows a notable evolution in the significance of the ECHR and ECtHR judgments in the domestic legal and political order over the past 10 years, including in rights claims pertaining to marginalised individuals and minorities. The original role of the country’s Constitutional Court was to avoid conflicts between ordinary legislation and the constitution, and it only indirectly included the protection of individual rights. The development of national human rights review is mainly linked to the Convention and the jurisprudence of the ECtHR. Even though since its ratification, the ECHR only holds the status of ordinary law, over time it has evolved to gain a certain primacy over the latter. Nonetheless, appeal to the Convention in domestic courts remains infrequent, apart from cases regarding Article 6 ECHR. This is in part due to a dominant perspective among the legal community that considers domestic rights guarantees to be more advanced, as well as a general lack of interest among Italian political elites in it. The notable absence of women and minorities shows how marginal the impact of the ECHR has been in building a pluralistic culture in the Italian system and in dealing with the problems of vulnerable groups. Since 2000, however, increasing academic and scholarly interest in the ECHR and the Strasbourg Court, legislative changes, and the presence of NGOs willing to take recourse to it on behalf of immigrants and asylum seekers, signals an important shift. A couple of recent and high-profiled immigrant and mass expulsion cases represent a starting point for a new perception of the ECHR’s instruments in Italian legal culture. For the first time, claims were not simply lodged as a further stage of proceedings or in order to obtain individual monetary compensation. Instead, they were submitted as a step within a broader mobilisation for changing legislation and practices on matters where the Italian legal and political system fails to fully address rights protection. While the impact of these two judgments on Italian policy towards immigration is still weak, for the first time, Italy has been ordered to comply with ECtHR jurisprudence regarding immigrants.

The Strasbourg Court, Democracy and the Protection

23

In Turkey, the role of the Convention and the ECtHR is closely linked to the country’s process of accession in the EU and the fulfilment of the Copenhagen criteria in which human rights reform figures prominently. Despite a series of amendments in 2001, the Turkish constitution continues to privilege state interests over the fundamental rights of individuals and, therefore, to come into conflict with basic principles of the Convention and the ECtHR jurisprudence. The large number of petitions from marginalised individuals and minorities against Turkey in the ECtHR is largely linked to the Kurdish issue. The lack of national remedies under the state of emergency that had imposed in the northeast part of the country and the activism of Kurdish lawyers in the 1990s led to scores of cases and condemnations against Turkey. Judgments vis-à-vis Turkey also concern the dissolution of political parties, the prosecution of individuals advocating a democratic solution to the Kurdish question, the restrictions on Muslims religious freedom in public life due to the principle of secularism, but also the rights of non-Muslims. The ECtHR case law has played an indispensable role in bringing to light the egregious human rights situation in Turkey in late 1980s and early 1990s. The Court’s fact findings on disappearances, unlawful killings, arbitrary detentions, torture and destruction of property committed by members of the security forces shed light to an administrative policy of systematic violations. It also exposed the impunity of perpetrators and the unavailability of domestic legal remedies for victims, but also the absence of an impartial and neutral judiciary to uphold rule of law and human rights in Turkey. In the early years of litigation originating from Turkey, the Court’s judgments critically analyzed the legal and political situation in Turkey, and provided an invaluable resource for other international actors in monitoring the country’s compliance with human rights standards. At the same time, by endorsing the stance of Turkish authorities and granting them a large margin of appreciation in cases like Refah and Şahin,64 the ECtHR has lost considerable legitimacy as an external guarantor in the eyes of Turkish marginalised individuals and minorities. In France, the ECHR has supremacy over statutory law and any court is entitled to apply it even contra legem. Judicial attitudes have changed over time and evolved from national resistance to ‘constructive interpretation’ and the development of a preventive approach by national judicial authorities at least in specific areas. The Court’s decisions and judgments have become in these cases a source of direct guidance, preventing new violations, for instance in

64

Refah Partisi and Others v. Turkey (no. 41340/98), 31 July 2001; Leyla Sahin v. Turkey (no. 44774/98), 11 November 2005.

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relation to the recognition of welfare rights of foreigners. Individuals from marginalised groups and minorities have appealed to Strasbourg over issues concerning protection of foreigners and the growing concerns stemming from the adoption of new legislation to ensure national security and fight against terrorism. Individuals from religious minorities raise claims strongly conditioned by the French Republic’s founding principles of secularism (laïcité), while transgender individuals claim discrimination based on their gender or sexual orientation. Recourse to legal tactics and judicial complaints in pursuit of political change, which is well-known in common law countries, is unfamiliar to French legal culture. Yet over the past 10 years, one witnesses growing mobilisation in this regard in the field of immigrant rights and the rights of sexual minorities. Although domestic mechanisms to protect human rights are deeply rooted in the French legal system, the constitutional conception of equality enshrined in the indivisibility principle of the Republic makes it very hard for vulnerable groups and minorities to be recognised as such. In their search for an established identity, religious minorities, homosexual or transgender lobbies have found the Strasbourg Court an instance of paramount importance. While in many other jurisdictions rights enjoy a constitutionally protected status, permitting judicial review of the constitutionality of legislation, this has not historically been the case in the UK. Given the non-incorporation of the ECHR, individuals could not be successful in introducing arguments based on a violation of one of its rights before domestic courts. Combined with a strong rights culture, as the chapter on the UK shows, this left individuals, including those from marginalised groups and minorities, with little options besides taking their case to Strasbourg. With the passage by parliament of the Human Rights Act 1998 (HRA), a new era has begun as a distinct rights culture has come to pervade UK law, society and political life, and the government has realised its ambitious project to ‘bring rights home.’ More specifically, it denotes the incorporation of parts of the ECHR into internal UK law in order to produce a national Bill of Rights. This development has revitalised an already strong domestic culture of asserting civil liberties. While the doctrine of parliamentary sovereignty remains supreme, the introduction of the HRA has furthermore contributed to shifting the balance of power between legislative and the judiciary in favour of the latter. Overall, the ECtHR has been more favourable towards particular kinds of rights claims. For instance, a general trend for greater sympathy in the ECtHR is evidenced in the area of cases involving sexuality or transsexuals with more cases resulting in a violation, and a greater tendency for cases to be decided by unanimity rather than majority voting. The response of the UK government to

The Strasbourg Court, Democracy and the Protection

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adverse judgments has, overwhelmingly, been to accept them, and over time to make consequential changes to domestic law and practice where appropriate. It is widely acknowledged that detainees, criminal suspects, prisoners, the mentally ill, homosexuals, schoolchildren, journalists and many others in the UK can trace the strengthening or clarification of their rights and protections to decisions of the Commission and Court. The German chapter discusses the complex and multifaceted, even if at time controversial, ways in which the Convention and the ECtHR jurisprudence enter into and influence the domestic legal and political order. German authorities – lawmakers, courts and the administration – have to abide with the ECHR in light of the jurisprudence of the ECtHR, as long as the judgments of the ECtHR do not contradict the Basic Law unjustifiably. Notwithstanding the robust system of domestic rights protection, a number of cases have challenged in Strasbourg the decisions of national courts, including in one case a decision by the constitutional court. Many cases from Germany taken to the ECtHR concern rights claims by marginalised individuals and minorities, and the extent of domestic protection afforded to them. Most of these, however, are considered inadmissible, particularly those brought by asylum seekers who try to avert their expulsion after a negative result of their motion. Even though the ECHR does not provide for a right to political asylum, the interpretation of Article 3 ECHR in combination with the national residence law can lead to a legal ban of an expulsion or even to a decision to grant a legal residence permit. The rulings of the Strasbourg organs can be deemed as surprisingly uncritical and as a result had almost no effect on the asylum procedures in Germany. Nonetheless, the interpretation of Article 3 ECHR in a way that engages the responsibility of the extraditing state has promoted a less rigid administrative practice. It has prompted national authorities to give greater consideration to the specific circumstances surrounding an expulsion order, and to become more flexible in granting legal residence permits. Besides immigration and political asylum cases, case law against Germany has often tended to fill in sporadic and relatively secondary (but not unimportant) gaps in domestic rights protection rather than to redress systemic problems. In Greece, with the transition to democracy in 1974, the Convention was incorporated anew in the domestic legal order after its denouncement during the military regime that had ruled the country during the previous seven years. Initially, Greek courts disregarded the Convention and demonstrated judicial restraint even towards the review of the constitutionality of domestic provisions, so as ‘to limit their judgments’ adverse effects on the state.’ Progressively, however, national judges started to become more acquainted

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with the ECHR. A significant factor accounting for this has been the acceptance in the mid-80s of the right to individual petition that paved the way for a growing number of petitions in the Strasbourg Court, including from marginalised individuals and minorities. The abundance of petitions stemming from applications by foreigners and members of religious and ethnic minority communities reveals that legal action in Strasbourg is generally perceived as an effective means to counteract state resistance towards particular types of claims. On several occasions, legal mobilisation has formed part of a broader strategy devised with a view to pursuing specific community interests. In several cases brought by members of religious and ethnic minorities, breach of the Convention stemmed from erroneous interpretation of domestic legislation by national courts. Over the past 10 years, the absence of domestic case law regarding the ban on proselytism and the establishment of non-Orthodox places of worship arguably manifests a change in judicial approach that is in line with the Convention.

Chapter Two Protecting Individuals from Vulnerable Groups and Minorities in the ECtHR: Litigation and Jurisprudence in Austria Kerstin Buchinger, Barbara Liegl and Astrid Steinkellner 1. Introduction After regaining its full sovereignty by the State Treaty of Vienna in 1955, Austria joined the Council of Europe (CoE) as its fifteenth Member State on 16 April 1956. Its membership in the CoE was a great opportunity for Austria to actively participate in a process that would later lead to the political unification of Europe. This was not considered in conflict with Austria’s perpetual neutrality, as the latter applied only to military actions. By its efforts to contribute to and co-operate in the framework of the Council of Europe, Austria was able to lay the foundation for its further European integration. The fact that Austria was the first state to fully incorporate the European Convention on Human Rights (ECHR, the Convention) into its constitutional legal order created a high level of awareness within Austrian society concerning the Convention itself, as well as its legal and practical implications. Domestic courts and administrative authorities have so far dealt with nearly every right or freedom contained in the ECHR. Naturally, the Constitutional Court plays a central role in this respect, as it has an impact on both, domestic legislation and jurisdiction. However, the Convention’s special status neither implies direct applicability of the rulings of the European Court of Human Rights (ECtHR, the Court) within domestic law, nor does it mean that the decisions or laws infringing the Convention can be abolished solely on the basis of the Court’s judgments. In such cases the Austrian legislator has to annul or amend the respective provisions. Yet, the government and the parliament have sometimes demonstrated reluctance to fully observe and fulfil the human rights obligations specified in the Convention.

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In Austria, human rights are often seen to predominantly protect the rights of minorities and marginalised groups in society. The following chapter tries to identify those minorities and vulnerable groups that tend to seek support from the ECtHR when their human rights have been violated. We will analyse why members of the identified groups take their cases to Strasbourg and why individuals belonging to other deprived groups do not turn to the ECtHR. We will also examine the factors conducive to taking legal action in Strasbourg and whether the judgments delivered by the ECtHR enhance the rights of minorities and other marginalised groups. We will start by providing a short historical overview, in order to demonstrate the significance that is attributed to the Convention in the Austrian national context. This will also provide a succinct description of domestic judicial approaches and attitudes vis-à-vis the ECHR, as well as of the pertinent scholarly debate. The following analysis on ECtHR litigation under Articles 8 to 11 and 14 ECHR has a special focus on minority and immigration issues. Thereby we will show on behalf of which marginalised groups the individual applicants seek redress in Strasbourg. Moreover, the question why some potentially vulnerable groups are more likely to vindicate their rights before the Court than others will be addressed. This analysis will make references to the political debate and the public attitude regarding certain issues such as asylum and immigration. In section four the main areas of Austrian legislation and legal practice that have been influenced by the Convention and the case law of the Strasbourg institutions over the past two decades shall be discussed in the light of the central issues at stake. We will conclude by providing an answer to the question on whether and to what extent the Court’s jurisprudence exerts an impact on the protection of the rights of marginalised individuals and minorities.

2. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship Prior to the Convention’s ratification by Austria, fundamental rights and freedoms were guaranteed by the Basic Law of 1867 on the General Rights of Nationals1 (Basic Law 1867). Being a law of the Austrian-Hungarian Monarchy, the latter was incorporated into the constitutional legal order of the new democratic Republic of Austria in 1920. This law – a minimum consensus of

1

Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger 1867, Law Gazette of the Austrian empire [Reichsgesetzblatt], No. 142/1867 (RGBl. Nr. 142/1867).

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fundamental rights and freedoms – is after various amendments still in force and contains a core of civil and political rights. However, as its title implies, it is restricted to Austrian nationals. Between 1933 and 1945, the Austrian constitutional system was suspended by authoritarian regimes. In 1945, after the collapse of the Third Reich, the Austrian Constitution and with it the Basic Law 1867 was put into force again. After becoming a member of the CoE, Austria signed the Convention on 13 December 1957 and ratified it – together with its first Additional Protocol of 1952 – on 3 September 1958. Concurrently, Austria accepted the competence of the European Commission of Human Rights (the Commission) and the European Court of Human Rights to deal with individual complaints. Following its ratification, the Convention was officially published in the Austrian Federal Law Gazette without further explanation on its legal status. Only in 1964, an amendment to the Austrian Constitution clarified the status of the ECHR as being fully equivalent to the original catalogue of fundamental rights, i.e. the Basic Law 1867. Since then, the ECHR has had the rank of directly applicable federal constitutional law, and any offences under the Convention can be claimed as violations of constitutionally guaranteed rights.2 As a result, all legislative, executive and judicial authorities are obliged to observe and implement the Convention within their sphere of action. Thus, the Austrian legislator has to respect the ECHR guarantees when enacting laws, and all courts and administrative authorities have to apply and interpret domestic legal provisions in line with the Convention. The Constitutional Court in particular has the responsibility to ensure compliance with the rights stipulated in the Convention and the authority to review decisions of administrative authorities,3 as well as to abolish domestic laws that infringe constitutional rights. Both, the lack of an ‘original’ domestic, modern human rights catalogue,4 as well as the constitutional status of the Convention explain the great significance attributed to the ECHR in the Austrian context. The Constitutional Court’s initially reserved attitude towards the Convention – caused by the hypothetical ‘parallelism’ of domestic fundamental rights and freedoms to the rights stipulated in the Convention – has changed over the years and the growing influence of Strasbourg jurisprudence has become more and more 2

3

4

Austria has also ratified all the Protocols of the Convention, except Protocol no. 12 which contains an equality–principle applying irrespective of the possible application of other ECHR provisions. By contrast, it is a matter of the Austrian Supreme Court [Oberster Gerichtshof ] to review decisions of judicial authorities. As opposed to the ‘dinosaur’ of fundamental rights and freedoms, the Basic Law of 1867.

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evident in its legal practice. In fact, the Constitutional Court, and in recent years the Supreme Court as well, are increasingly referring to ECtHR jurisprudence in many of their judgments. Also, it has become common practice to examine whether the application of Convention rights or that of domestic legal provisions is more beneficial for the person affected in a given case.5 Since national laws, including those at a sub-constitutional level, are sometimes formulated in great detail and thus specify the guarantees contained in the Convention, the Austrian judicial authorities have not always been attaching the necessary importance to the ECHR and the interpretations of the Strasbourg Court. Amongst other factors this might have contributed to the formation of the perception that the Convention – notwithstanding its constitutional status – is considered an ‘external’ rather than a domestic human rights regime by the legal community. Though progress has been made towards a shift of opinion, some rejection of the presumed ‘outside influence’ of the ECHR and the Court on national jurisdiction still remains.6 It has to be taken into account that the Austrian judiciary training system only recently introduced compulsory fundamental rights training for the republic’s prospective judges. Therefore, a certain lack of understanding concerning substantial human rights questions seems to have remained among judges who have been in service for a long time. It is therefore very much up to the younger generations of judges to develop an ‘inclusive’ rights approach in their daily practice, to ensure that human rights compliance starts at the lowest instance. There are no recent socio-political studies or surveys on judges’ political attitudes, but historians have analysed the Austrian judiciary branch. Botz7 sees Austrian judges as traditionally and predominantly attached to the Großdeutsche Volkspartei, a party active between 1920 and 1945 supporting Austria’s accession to the German Reich with national-socialist inclination,8 or to conservative Catholicism throughout the first republic (1918-1938). In 5 6

7

8

I.e. the so-called ‘principle of favourability’ [Günstigkeitsprinzip]. Information provided by a Member of the Austrian Ombudsman Board, the Green Party and former Chairperson of the Committee on Human Rights in the Austrian Parliament on 26 September 2007 and by an Austrian Supreme Court Member on 16 April 2008. See G. Botz, ‘Zum Verhältnis von Politik und Rechtswesen in der Ersten Republik’, in Weinzierl and Stadler (eds.), Justiz und Zeitgeschichte, Symposionsbeiträge 1976–1993, 24 vols. (Wien/Salzburg: Ludwig Boltzmann-Institut für Geschichte der Gesellschaftswissenschaften, Geyer-Edition, 1977), vol. I, pp. 99–112. After 1945 its members aligned with members of the former National Socialist German Workers’ Party [NSDAP] in different groups, among which was the forerunner of the Austrian Freedom Party.

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1945-46 about forty percent of the representatives of the judicial system were removed due to their political affiliation during the Nazi-regime. However, due to staff shortages these suspensions were lifted rather soon and only very few proceedings against leading representatives of the National Socialist judiciary were instigated.9 Quite instructive with regard to domestic judicial attitudes are judgments in cases involving statements promoting racist agitation. Many of them relate to the Prohibition Statute [Verbotsgesetz],10 which strictly forbids racist actions and incitements within the context of (neo-)Nazi ideology. However, when representatives of the right wing populist Austrian Freedom Party11 are criticised by the media for statements, activities or offences relating to National Socialism, they regularly take journalists to court claiming insults. In many cases the journalists have been convicted of defamation by national courts, a lot of which the ECtHR found to be in violation of Article 10 ECHR.12 At the beginning of the twenty-first century the Austrian judiciary is still a rather homogenous body, representing people of very similar social, cultural and ethnic origins. Although judges adopt a ‘neutral’ position from the legal point of view, they cannot totally free themselves of stereotypes and prejudices present in society.13 The ECHR and the Court’s jurisprudence have served to attract the interest of academic scholarship ever since its ratification. Predominantly, domestic scholars reacted to judgments, including those of domestic courts, and discussed the issues contained therein; only a few actively initiated a debate without preceding (court) cases. The first attempt to comprehensively examine the ECHR and its influence on the Austrian legal practice dates back to the 1980s.14 The relationship between the Convention and its domestic reception has

9

10 11

12 13 14

See O. Rathkolb, ‘Anmerkungen zur Entnazifizierungdebatte über Richter und Staatsanwälte in Wien 1945/46 vor dem Hintergrund politischer Obsessionen und Pressionen während des Nationalsozialismus’, in Weinzierl and Stadler (eds.), Justiz und Zeitgeschichte, Symposionsbeiträge 1976–1993, 24 vols. (Wien/Salzburg: Ludwig Boltzmann-Institut für Geschichte der Gesellschaftswissenschaften, Geyer-Edition, 1986), vol. XVI, pp. 157–209. National Law Gazette [Staatsgesetzblatt], no. 13/1945 (StGBl. Nr. 13/1945). A. Pelinka, ‘Die FPÖ in der vergleichenden Parteienforschung: Zur typologischen Einordnung der Freiheitlichen Partei Österreichs’, Österreichische Zeitschrift für Politikwissenschaft 3 (2002), 281. See further below in this section. See D. Schindlauer, ‘Die Justiz und das Fremde’, Juridikum 4 (2002), 179. F. Ermacora, M. Nowak and H. Tretter, Die Europäische Menschenrechtskonvention in der Rechtsprechung der österreichischen Höchstgerichte (Wien: Braumüller, 1983).

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continuously occupied Austrian scholars.15 Since Austria has joined the European Union, studies on the relationship between the ECtHR and the Union’s human rights protection system have continuously accumulated. Apart from numerous contributions that address the issue of human rights protection within the framework of the ECHR generally, legal science has also focused on selected rights of the Convention. Quite a few pertain to the factors supportive of a pluralistic society, such as the protection of minorities and ethnic groups,16 the freedom of the media,17 the freedom of association, arts or of religious beliefs as well as non-discrimination in general.18 In exploring the topic, academic scholarship played a remarkable role in the development and definition of the ‘concept of equality before the law’. This emerged in the context of gender-related unequal treatment as protected by Article 14 ECHR and also explicitly implemented by a provision of the Austrian Federal Constitutional Law.19 According to this principle, legislative and executive 15

16

17 18

19

See for example M. Nowak, Europarat und Menschenrechte, Dokumentation eines Seminars im Schloß Laudon gemeinsam mit dem Ludwig-Boltzmann-Institut für Menschenrechte vom 4. - 6. Oktober 1993 anläßlich des Gipfeltreffens des Europarates in Wien vom 8. - 9. Oktober 1993 (Wien: Orac, 1994); H. Tretter, ‘Austria’, in Blackburn (ed.), Fundamental Rights in Europe, The European Convention on Human Rights and its Member States 1950–2000, (Oxford: Oxford University Press, 2001), pp. 103–165; C. Grabenwarter, ‘Die EMRK aus österreichischer Sicht’, in Thürer (ed.), EMRK: Neuere Entwicklungen (Zürich/Basel/Genf: Schulthess Juristische Medien, 2005), pp. 79–120; W. Karl, ‘Menschenrechte in Europa: Die Europäische Menschenrechtskonvention, ihr Verfahren und ihr Einfluss auf das österreichische Recht’, in Schuhmacher (ed.), Perspektiven des europäischen Rechts, (Wien: Orac, 1994), pp. 281–304. See G. Holzinger, ‘Die Rechte der Volksgruppen in der Rechtsprechung des Verfassungsgerichtshofes’, in Funk (ed.), Der Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich (Wien: Verlag Österreich, 2002), pp. 193 ff.; D. Kolonovits, Minderheitenschulrecht im Burgenland (Wien: Manz, 1995); D. Kolonovits, Sprachenrecht in Österreich (Wien: Manz, 1999); T. Öhlinger, ‘Der Verfassungsschutz ethnischer Gruppen in Österreich’, in Schäffer (ed.), Staat-Verfassung-Verwaltung, Festschrift für Friedrich Koja (Wien: Springer, 1998), pp. 371 ff.; F. Sturm, ‘Der Minderheiten- und Volksgruppenschutz’, in Machacek, Pahr and Stadler (eds.), Grund- und Menschenrechte in Österreich, 3 vols. (Kehl am Rhein/Straßburg/Arlington: Engel, 1992), vol. II, pp. 77 ff.; H. Tretter, ‘Zur Transformation des Europäischen Rahmenübereinkommens zum Schutz nationaler Minderheiten in das österreichische Recht’, in Österreichisches Volksgruppenzentrum (ed.), Volksgruppenreport 1997 (Wien: Österreichisches Volksgruppenzentrum, 1997), pp. 214 ff.; H. Tretter, ‘Der Artikel 8 EMRK als Grundlage eines individuellen Rechts auf zweisprachige Ortstafeln?’, in Anderwald, Filzmaier and Hren (eds.), Kärtner Jahrbuch für Politik 2005 (Klagenfurt: Kärntner Druck- und Verlagsgesellschaft, 2005), pp. 265–275. See below. See for example the contributions in the three volume edition of R. Machacek, W. Pahr and G. Stadler (eds.), Grund- und Menschenrechte in Österreich, vols. I–III. Article 7 paragraph 1 of the Austrian Federal Constitutional Law, Federal Law Gazette No. 1/1930 as amended by Federal Law Gazette No. 100/2003 (BGBl. Nr. 1/1930 zuletzt geändert durch BGBl. I Nr. 100/2003).

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authorities (in the broader sense) are obliged to handle comparable matters equally and objectively, and different matters in different ways. Consequently, any unequal treatment determined by the law requires substantial, objective reasoning. The Constitutional Court adopted the theory for reasoning in connection with unequal treatment of women and men and took into account the jurisprudence of the ECtHR. It established that only ‘exceptionally crucial’ factors justify a different treatment in gender cases. Thus, in 1998, a new paragraph was added to the relevant constitutional provision allowing the Austrian legislator to enact regulations that serve to generate a de facto equal position for women compared to men. The situation of ‘absolute’ equal conditions turned out to cause new problems of gender-discrimination as specific circumstances, such as the working environment, actually demand a gender-specific treatment to allow for the realisation of equal opportunities for both sexes. Literature has covered the topic comprehensively and has in particular dealt with a new constitutional act on retirement in 1992, which provided for the gradual harmonisation of the pension age of men and women in Austria.20 The discourse on the parameters defining equality, or non-discriminatory treatment respectively, appeared to be highly conducive to the improvement of the situation and rights protection of those belonging to vulnerable groups at large.21 In particular, scholarly attention therefore focused on discrimination on grounds of ethnicity and race.22 The pertinent domestic provisions created a situation where certain rights and privileges were reserved to Austrian nationals

20

21

22

This was based upon a Constitutional Court judgment according to which the privilege of women reaching retirement age much earlier than men was considered unconstitutional as it lacked an objective justification and was not necessary to create gender-equality. See A. Sporrer, ‘Die Gleichheit von Frauen und Männern in Österreich’, in Machacek, Pahr and Stadler (eds.), vol. III, pp. 901 ff.; See also S. Rosenkranz, Das Bundes-Gleichbehandlungsgesetz (Wien: LexisNexis ARD ORAC, 1997). Cf. S. Bernegger, ‘Der (allgemeine) Gleichheitsgrundsatz (Art 7 B-VG, Art 2 StGG) und das Diskriminierungsverbot gemäß Art 14 EMRK’, in Machacek, Pahr and Stadler (eds.), vol. III, p. 709; W. Berka, ‘Art 7 B-VG’, in Rill and Schäffer (eds.), Kommentar zum Bundesverfassungsrecht (Wien: Springer, 2006); M. Holoubek, ‘Die Sachlichkeitsprüfung des allgemeinen Gleichheitsgrundsatzes’, ÖZW (1991), 72 ff.; K. Korinek, ‘Gedanken zur Bindung des Gesetzgebers an den Gleichheitssatz nach der Judikatur des Verfassungsgerichtshofes’, in Schäffer (ed.), Im Dienst an Staat und Recht, Festschrift Melichar (Wien: Manz, 1983), pp. 39 ff.; A. Somek, Rationalität und Diskriminierung: zur Bindung der Gesetzgebung an das Gleichheitsrecht (Wien: Springer, 2001). See N. Marschik, Die UN-Rassendiskriminierungskonvention im österreichischen Recht (Wien: Verlag Österreich, 1999); F. J. Heidinger, A. Frank-Thomasser and Th. Schmid (eds.), Antidiskriminierung – Rechtliche Gleichbehandlung in Österreich und in der EU (Wien: Springer, 2004); R. Rebhahn (ed.), Gleichbehandlungsgesetz – Kommentar (Wien: Springer, 2005).

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only. This was not a priori inconsistent with the Convention, but led to Austrian convictions by the ECtHR in individual cases23 and thus attracted the interest of the legal and scientific community. Similarly, discrimination in connection with Article 8 ECHR evoked a large number of academic works. The latter constitutes a sort of ‘catchall clause’ that provides guarantees to private and family life and its extent of protection is determined on a case-by-case basis. According to existing literature and case law, the fundamental rights guaranteed by Article 8 ECHR cover the right to self-determination and protect the entire sphere of privacy, it is therefore quite multifaceted.24 As personal privacy comprises interpersonal relations and the right to freely choose one’s sexual orientation, Austria came into conflict with the Convention because of a specific provision contained in the Austrian Criminal Code. This provision prohibited sexual relationships between adult and adolescent males until 2002 and was harshly criticised and challenged before courts – first on the domestic level, later in front of the ECtHR – before being finally abolished by the Constitutional Court.25 Due to the joint efforts of lawyers, NGOs and the individuals concerned, the issue attracted much attention throughout the process that led to its repeal and beyond.26 Freedom of information and speech, particularly freedom of the media, is another issue which has preoccupied Austrian academics and the legal community on the basis of the guarantees stipulated in the Convention.27 Article 10 ECHR allows countries to introduce a licensing procedure for broadcasting services, but this does not mean that the issuance of such licenses can be conditional upon the content of the communicated opinions; that is to say any kind of censorship is prohibited. In the course of the so-called Austrian ‘radiocases’, which triggered the opening of the radio broadcast market and led to the dismantling of the monopoly of the public broadcasting agency [Österreichischer Rundfunk, ORF], the Strasbourg Court has emphasised the

23 24

25 26

27

See section III below. See W. Berka, Medienfreiheit und Persönlichkeitsschutz (Wien: Springer, 1982); T. Lukasser, ‘Europäische Menschenrechtskonvention und individueller Lebensstil’, ÖJZ (1994), 569 ff.; E. Wiederin, Privatsphäre und Überwachungsstaat (Wien: Manz, 2003). For further details see section IV below. See in particular H. Graupner, Sexualität, Jugendschutz und Menschenrechte – Über das Recht von Kindern und Jugendlichen auf sexuelle Selbstbestimmung, 2 vols. (Frankfurt am Main/ Berlin/Bern/New York/Paris/Wien: Peter Lang, Europäischer Verlag der Wissenschaften, 1997). See for example Berka, Medienfreiheit und Persönlichkeitsschutz; W. Berka, ‘Die Kommunikationsfreiheit in Österreich’, in Machacek, Pahr and Stadler (eds.), vol. II, pp. 393 ff.; M. Holoubek, ‘Medienfreiheit in der Europäischen Menschenrechtskonvention’, AfP (2003), 193 ff.; Österreichische Juristenkommission (ed.), Caroline und die Folgen: Medienfreiheit am Wendepunkt? (Wien/Graz: Neuer Wissenschaftlicher Verlag, 2005).

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fundamental importance of freedom of opinion to ensure plurality in a democratic society. As a consequence, the state monopoly could no longer be upheld, and in 2001 the legislator enacted the Private Radio Act and the Private Television Act, opening the broadcasting market to private broadcasting corporations and radio stations.28 Austria has also faced repeated convictions with regard to freedom of expression in print media, some of them in the recent past. According to ECtHR jurisprudence, media coverage of politicians or other persons of the public life does not have to be as restrictive as when private persons are affected. This is due to the assumption that a public political debate is an essential element of democratic society.29 In the Austrian case, however, there is a special, historically justified limitation of Article 10 ECHR, namely the abovementioned Prohibition Statute. Accordingly, it is forbidden to publicly approve, trivialise or seek to justify the ideas of National Socialism, genocide and other forms of National Socialist crimes. This is a rather controversial issue in the current public discussion, not only because of the repetitive convictions of Austria by the ECtHR for not guaranteeing journalistic freedom. Much has been written and said in this regard, but it is predominantly a question of awareness raising and training of those applying the law, in order to aim for a higher level of conformity with Article 10 ECHR in the future.

3. Litigation in the ECtHR on Claims Raising Articles 8 to 11 and 14 ECHR, with a Specific Focus on Minorities and Immigrants Becoming a member to the ECHR fifty years ago was politically undisputed in Austria. The country’s accession was perceived as an act of European solidarity. Both, the government and the judiciary were of the opinion that fundamental rights were already sufficiently guaranteed within the Austrian legal order. The ratification of the Convention was not considered to have any substantial consequences. It came as a surprise when a relatively large amount of applications was lodged against Austria.30

28

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See H. Wittmann, Rundfunkfreiheit (Saarbrücken: Schriftenreihe Forschungen aus Staat und Recht, 1981), vol. 55; W. Berka, Rundfunkmonopol auf dem Prüfstand (Wien: LexisNexis ARD ORAC, 1988); M. Holoubek, Rundfunkfreiheit und Rundfunkmonopol, (Wien: Böhlau, 1990); H. Tretter, ‘Wie Österreich in Straßburg wegen des ORF-Monopols verurteilt wurde’, JAP (1994), 141 ff.; H. Tretter, ‘Jüngste Entwicklungen im österreichischen Rundfunkrecht’, EuGRZ (1996), 77 ff. I.e. the so-called ‘public figure standard’. See F. Matscher, ‘Was 50 Jahre EMRK in Österreich verändert haben’, Die Presse, 8 September 2008.

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Most of the applications so far have concerned Articles 5 and 6 ECHR, some Articles 3, 8, 10 and 11 ECHR as well as Article 1 of the First Protocol to the Convention. In 1985–2007, about ninety decisions and judgments fall within the scope of core civil and political rights and/or directly involve or have consequences for marginalised groups. For the study of minority protection in the Convention system, all judgments and decisions pertaining to Articles 8, 9, 10, 11 and 14 ECHR as well as those affecting marginalised groups, like aliens,31 members of ethnic and religious minorities or homosexuals, though referring to other Articles of the Convention, are considered. A little less than one third of the cases selected, relate to issues pertaining to aliens. They concern proceedings regarding residence prohibitions, as a consequence of criminal convictions (also involving asylum seekers) and the length of appeal proceedings in connection with the Aliens’ Employment Act. Two cases of this category had important consequences for third country nationals residing in Austria. One opened access to emergency assistance for third country nationals. The other one was the starting point for proceedings before the UN Human Rights Commission and the European Court of Justice, resulting in the abolition of a provision prohibiting third country nationals from standing as candidates in works’ council elections.32 Besides, several cases were taken to Strasbourg by aliens alleging violation of the right to a fair trial. About thirteen percent of the cases under study dealt with the issue of discrimination on grounds of sexual orientation. Applicants were convicted of having violated section 209 of the Austrian Criminal Code, which penalised sexual relationships between male adults and adolescents. They thus challenged the provision’s compliance with Article 8 ECHR in conjunction with Article 14 ECHR. Few cases also related to religious minorities, and pertained to sects or to views held by devout Roman Catholics. The right to private life has very often been invoked in connection with aliens’ law in Austria. Authorities are obliged to balance the security interests of the state with the interests of aliens who are in custody pending deportation and whose families are allowed to remain in the country. In particular, since the aliens’ law package has come into effect at the beginning of 2006, many critics have spoken out on the issue of lawful residence and the right to family life, precisely because the number of irregular aliens has tremendously

31

32

Aliens are persons who have another nationality than the Austrian. All third country nationals are subject to the Aliens’ Act, Aliens’ Police Act and the Aliens’ Employment Act regulating access to the country, residence status and access to the labour market. For further details see section IV below.

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increased because of this new legislation. Since then, the rights under Article 8 ECHR have been at serious risk as the public (security) interests have been given priority in the vast majority of pertinent cases without due consideration of the principle of proportionality.33 The explanation for the reasons why this marginalised group had to take recourse to the ECtHR is closely linked to the rules governing the political system. Austria has been governed by large coalition governments for more than thirty years since 1945. Large coalition governments were formed by the Social Democrats and the conservative People’s Party, and very often were supported by a two third majority in parliament. There were short intermezzos of small coalition governments either uniting the Social Democrats or the People’s Party with right wing conservative parties. It has been quite typical of the Austrian large coalition governments, which had to balance social democratic with conservative policy views, that the adopted legislation and pursued policies reflected a very low ‘common denominator’. The Freedom Party, a right wing populist party, has been quite successful as an opposition party in influencing the policies of large coalition governments and adversely affecting their aliens’ policy in particular. Other explaining factors are linked to political, as well as public attitudes towards minorities,34 which are not only shared by politicians, but also by the judiciary.35 Notwithstanding, members of the Constitutional Court have repeatedly criticised the bad quality of aliens’ and asylum legislation, which partly results from amendments discussed in a rather emotional political atmosphere.36 Labour migration started in the late 1960s. Although subsequent Austrian governments and trade unions had agreed on the so-called ‘rotation principle’, indicating that immigrants would only stay for one to two years, family reunification started in the 1970s. The subsequent decades were characterised by a diversification of the countries of origin of immigrants and an increase in

33

34 35 36

See P. Pernthaler and I. Rath-Kathrein, ‘Der grundrechtliche Schutz von Ehe und Familie’, in Machacek, Pahr and Stadler (eds.), vol. II, pp. 245 ff.; see also B. Weichselbaum, ‘Die Regelung des Familiennachzugs in Österreich im Lichte der Vorgaben der Europäischen Menschenrechtskonvention’, ZAR (2003), 359 ff; E. Wiederin, Aufenthaltsbeendende Maßnahmen im Fremdenpolizeirecht (Wien: Rechtswissenschaftliche Schriftenreihe des Assistentenverbandes der Wirtschaftsuniversität Wien, 1993); B. Gutknecht, ‘Grundrechtsschutz für Ehe und Familie’, Recht-Politik-Wirtschaft 4 (1988), 92 ff. See below. As to the judicial approach see section II above. See K. Heller, ‘Einige Bemerkungen zum Asylverfahren’, in Bammer, Holzinger, Vogel and Wenda (eds.), Rechtsschutz gestern – heute – morgen (Wien/Graz: Neuer Wissenschaftlicher Verlag, 2008), p. 193.

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asylum seekers.37 Eurobarometer surveys over the last decade have shown that Austrians have a less positive attitude towards ethnic minorities than the EU average. In 1997 forty-two percent of the interviewees characterised themselves as ‘very or quite racist’ (the EU average was thirty-three percent).38 Between 1997 and 2000 the proportion of those believing that a society composed of people from different races, religions and cultures was a positive thing, decreased from nearly three quarters to just over fifty percent of the respondents (at the EU level from sixty-six to sixty-four percent).39 In 2003 the Austrian respondents were among those scoring lowest on the question whether discrimination on various grounds was always wrong.40 Three years later sixty-one percent of the interviewees considered the Austrian attempts to fight all forms of discrimination to be adequate (the EU average was forty-five per cent).41 The public discourse was and still is dominated by keywords such as ‘asylum abuse’ and ‘criminalisation of asylum seekers’.42 Since 9/11 the socalled ‘alien problem’ has gradually been substituted by the ‘Muslim problem’ identifying Muslim immigrants as potential threats to European values and public security.43

37

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39

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The first migrants originated from Turkey and former Yugoslavia; later on migrants from various Eastern European countries, Africa and Asia started to come to Austria. In the same year, seventy percent supported the statement that if more people belonging to ethnic minorities came to Austria, the country would face problems (the EU average was sixty-five percent). Only thirty-nine percent were of the opinion that people from minority groups were discriminated against in the labour market (the EU average was seventy-one percent). See B. Birka, G. Lemaine and J.S. Jackson, Opinion Poll – Racism and Xenophobia in Europe (on behalf of the European Commission, 1997), pp. 2, 5 and 7, http://ec.europa.eu/ public_opinion/archives/ebs/ ebs_113_en.pdf. See E. Thalhammer, V. Zucha, E. Enzenhofer, B. Salfinger and G. Ogris, Attitudes towards minority groups in the European Union: A special analysis of the Eurobarometer 2000 survey (on behalf of the European Monitoring Centre on Racism and Xenophobia, 2001), pp. 54f., http://ec.europa.eu/public_opinion/archives/ebs/ebs_138_analysis.pdf. See A. Marsh and M. Sahin-Dikmen, Discrimination in Europe: Eurobarometer 57.0 – Executive Summary (on behalf of the European Commission, 2003), pp. 11f., http://ec. europa.eu/public_opinion/archives/ebs/ebs_168 _exec.sum_en.pdf. See European Commission, Austria, Discrimination in the European Union: Special Eurobarometer 263 (European Commission, 2006), http://ec.europa.eu/public_opinion/ archives/ebs/ebs_ 263_fiche_at. pdf. See Heller, ‘Einige Bemerkungen zum Asylverfahren’, pp. 184f. See M. Rohe, Perspektiven und Herausforderungen in der Integration muslimischer MitbürgerInnen in Österreich (Wien: Bundesministerium für Innere Angelegenheiten, 2006), http:// www.bmi.gv.at/downloadarea/asyl_fremdenwesen/Perspektiven_Herausforderungen.pdf, pp. 16f.

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Immigrants or people representing their views are hardly ever involved in politics. NGOs representing diverse interests of immigrants and asylum seekers have been gaining influence over the last fifteen years only. The starting point of the growing civil society movement was the ‘sea of lights’ [Lichtermeer] in 1993, a big demonstration organised against the petition for a referendum by the Freedom Party called ‘Austria first’ [‘Österreich zuerst’].44 In the wake of this demonstration NGOs like Amnesty International Österreich, Asyl in Not, Asylkoordination, Caritas, Diakonie, Evangelischer Flüchtlingsdienst, Helping Hands, Integrationshaus, the Ludwig Boltzmann Institute of Human Rights, Netzwerk Asylanwalt, SOS Mitmensch, Volkshilfe and ZARA – Ziviclourage und Anti-Rassismus-Arbeit further mobilised for the rights of asylum seekers and immigrants. Similar dynamics can be identified as far as the equal rights of gays and lesbians are concerned. Yet, the struggle against discriminating laws and practices affecting homosexuals was slightly more straightforward than that regarding aliens and asylum seekers since it could concentrate on one specific aspect of the law. Contrariwise, cases pertaining to aliens and asylum seekers concern very different aspects of aliens’ legislation as well as many other policy areas. Interestingly, certain minorities vulnerable to human rights violations are not represented among litigants, neither before the ECtHR nor domestic courts. One of them is the Muslim minority. About five percent of the resident population in Austria are of Muslim faith. Among resident aliens, the Islamic Faith Community is the largest group (about one third). Muslims enjoy the status of a legally recognised religious community (Act on Islam 1912),45 and have equal rights to Catholics, the biggest religious group in Austria (about eighty percent). Recognised religious communities are entitled to receive certain state subsidies and tax exemptions. Furthermore, they enjoy the status of a legal person, which enables them to engage in particular contractual obligations. Primary and secondary school students belonging to the Muslim minority receive religious instruction as a compulsory subject in Austrian schools, including the possibility to opt out. The religious community can decide autonomously on curricula and teachers, whose salaries are financed by the

44

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Inter alia, it aimed at the implementation of a constitutional provision defining Austria explicitly as a ‘non-immigration-country’ and at the realisation of several other points discriminating against aliens, e.g. excluding aliens from voting rights, the limitation of the number of pupils with other native languages than German in school classes or the immediate expulsion of delinquent foreigners. Islamgesetz, Law Gazette of the Austrian empire [Reichsgesetzblatt], No. 159/1912 (RGBl. Nr. 159/1912).

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Austrian state. Nevertheless, there are incidents of discrimination against individuals belonging to the Muslim community.46 Another minority which has not taken any case to the ECtHR47 are the Carinthian Slovenes. They are one of the ethnic minority groups [Volksgruppen] in Austria that enjoy the status of recognised autochthonous minorities. Based on the Austrian historical events, Croats, Slovenes, Hungarians, Czechs, Slovaks, and Roma have been granted special rights with the declared intention of protecting those groups’ languages, cultures and traditions.48 Besides the right to equal treatment and non-discrimination, the members of minorities who are state nationals are granted explicit rights specified in the Minorities’ Act [Volksgruppengesetz].49 The Act was adopted in 1976 and applies to individuals from both linguistic and non-linguistic minority groups. The minorities under protection are defined as ‘groups of Austrian nationals that live and traditionally have had their home in parts of the federal territory whose mother tongue is not German and who have their own traditions and folklore’.50 This definition promoted a shift of focus from the linguistic to the ethnic dimension in the self-conception of minority groups.51 The Minorities’ Act addresses issues of political participation via National Minority Advisory Councils, financial support for minorities from National Minorities Assistance Funds, the issue of topographic terms and signs, and the use of minority languages as official languages. The Act also stipulates a freedom of choice concerning the personal avowal to a respective minority group. This means that

46

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49 50 51

For example, against women wearing the headscarf incidents are documented in connection with job applications, access to services such as childcare, or assaults by civilians in daily life. See ZARA – Ziviclourage und Anti-Rassismus-Arbeit, Rassismus Report 2007 (Wien: ZARA, 2008), http://www.zara.or.at/materialien/rassismus-report/Rassismus-Report% 202007.pdf. Except for one case in which the monopoly of the Austrian Broadcasting Corporation was challenged before the ECtHR, one applicant called Arbeitsgemeinschaft offenes Radio (AGORA) wanted to establish a radio station in southern Carinthia to broadcast noncommercial radio-programs in German and Slovene. See ECtHR, Informationsverein Lentia and Others v. Austria (nos. 13914/88; 15041/89; 15717/89; 15779/89; 17207/90), 24 November 1993. See also: G. Baumgartner and B. Perchinig, ‘Minderheitenpolitik’, in Dachs, Gerlich, Gottweis, Horner, Kramer, Lauber, Müller and Tálos (eds.), Handbuch des politischen Systems Österreichs: Die Zweite Republik, (Wien: Manz, 1997), pp. 628–640. Federal Law Gazette, No. 396/1976 (BGBl. Nr. 396/1976). Section 1 Paragraph 2 Minorities’ Act. See G. Baumgartner and B. Perchinig, ‘Minderheitenpolitik’, in Dachs, Gerlich, Gottweis, Horner, Kramer, Lauber, Müller and Tálos (eds.), Handbuch des politischen Systems Österreichs: Die Zweite Republik (Wien: Manz, 1997), pp. 628–640.

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national authorities are not allowed to collect data on the affiliation to a minority group, not even in the course of a public population census. Furthermore, the rights of the Slovenian and Croatian minorities in the three federal provinces of Carinthia, Styria and Burgenland are safeguarded to an even greater extent, namely on the basis of the State Treaty of Vienna 1955. Members of these groups enjoy the constitutionally guaranteed rights to elementary education in their native languages, the use of their minority languages besides German in official matters [Amtssprache] and to bilingual topographic signs (mainly road and direction signs) placed in certain regions. In 2005 the Constitutional Court issued a judgment52 requesting an increase in the number of bilingual topographic signs (German and Slovene) in the federal province of Carinthia. Much attention has been drawn to this judgment because of the late Carinthian governor’s refusal to abide by it. His nonobservance constituted a severe interference with the principle of the rule of law. A well known Austrian lawyer and member of the Slovene minority challenged the non-existence of bilingual road signs before the Constitutional Court, which decided that an individual right to have this kind of topographic signs did not exist. Deducing such a right from Article 8 ECHR is arguable53 and a pertinent application has been filed with the ECtHR but has not yet been declared admissible. Apart from that, the creation of a special domestic frame of minority rights served very much to improve the safeguarding of the fundamental rights of individuals belonging to autochthonous minorities at the domestic level. This certainly accounts for the fact that they have not been among the litigants in the Strasbourg Court.

4. ECtHR Jurisprudence in the Cases under Review The cases that have been brought to the Strasbourg Court by members of marginalised groups in Austria cluster around three major issues: firstly, the situation and rights of aliens and asylum seekers, secondly, the legal and factual problems faced by homosexuals and thirdly, obstacles encountered by religious minorities. However, compared to the first two issues very few applications have been made on grounds of the violation of the rights of religious minorities. Several applications have been taken to Strasbourg dealing with complaints about an infringement of the freedom of opinion – in particular journalistic freedom – and almost as many resulted in convictions of Austria. 52 53

Verfassungsgerichtshof (VfGH) 12 December 2005, V64/05-B1307/04. See Tretter, ‘Artikel 8 EMRK als Grundlage eines individuellen Rechts auf zweisprachige Ortstafeln?’, pp. 265 ff.

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However, due to the purpose of this paper, namely the protection of minorities, these cases will not be dealt with in more detail.54 To examine possible influences on the political climate and hence implications for those individuals would go far beyond the scope of the chapter. Between 1985 and 2007 a total of twenty-eight cases were taken to the ECtHR on behalf of aliens, thirteen of these cases were either declared inadmissible or struck out of the list as the matter had been resolved.55 Thirteen other cases concerned the issuing of residence prohibitions. In four cases Austria was convicted of having violated Article 8 ECHR. There, Austrian courts had considered the discontinuation of the residence of three applicants, who had been convicted of criminal offences, necessary in order to prevent disorder and crime and to protect the rights of others (Jakupovic, Radovanovic and Yildiz).56 The public interest – according to Austrian courts – was regarded to outweigh the respect for the applicants’ right to private and family life. In Moser, the relevant authorities had issued a residence ban because of illegal employment of the applicant, a Serbian national, and transferred custody of her newly born son to the Youth Welfare Office. The ECtHR established a violation of Article 6 ECHR, as the applicant had been denied a public hearing, as well as a breach of Article 8 ECHR because the reasoning of the Austrian courts was ‘not sufficient to justify such a serious interference with the applicants’ family life’.57 In three cases the matter was resolved by taking steps to lift the residence prohibitions issued (Gümüskaya, Bulut and Özdemir)58 and they were struck out of the list consequently. Seven cases taken to the ECtHR were declared inadmissible as they were ill-founded.59 Two cases involved administrative proceedings with regard to the Aliens’ Employment Act (Jancikova and Jurisic and Collegium Mehrerau),60 which 54

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57 58

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See also W. Karl and W. Berka (eds.), Medienfreiheit, Medienmacht und Persönlichkeitsschutz, Internationales Symposion am Österreichischen Institut für Menschenrecht in Salzburg am 14. und 15. Juni 2007 anlässlich des 20-jährigen Bestehens des Instituts, Schriften des Österreichischen Instituts für Menschenrechte (Kehl am Rhein/Straßburg/Arlington: Engel, 2008). See below. ECtHR, Jakupovic v. Austria (no. 36757/97), 6 February 2003; Radovanovic v. Austria (no. 42703/98), 22 April 2004; and Yildiz v. Austria (no. 37295/97), 31 October 2002. ECtHR, Moser v. Austria (no. 12643/02), 21 September 2006. ECtHR, Gümüskaya v. Austria (no. 22782/93), 18 October 1993; Bulut v. Austria (no. 20807/92), 13 October 1992; and Özdemir v. Austria (no. 14308/03), 8 December 2005. ECtHR, Öztürk v. Austria (no. 26400/95), 6 February 1995; Altuntas v. Austria (no. 25918/94), 13 December 1994; Onyegbule v. Austria (no. 26609/95), 2 March 1995; Adegbie v. Austria (no. 26998/95), 7 April 1995; B.S. v. Austria (no. 27647/95), 19 June 1995; Schober v. Austria (no. 34891/97), 12 February 1997; and Fehrati v. Austria (no. 31411/96), 7 May 1996. ECtHR, Jancikova v. Austria (no. 56483/00), 7 April 2005; Jurisic and Collegium Mehrerau v. Austria (no. 62539/00), 27 July 2006.

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regulates access to the labour market of third country nationals, as well as that of nationals of the new EU member states except for Cyprus and Malta. Austria was convicted of having breached Article 6 ECHR in both cases. Four more cases filed by non-nationals complaining about violations of Article 6 ECHR resulted in condemnations for infringing upon the right to have a public hearing,61 the right to have the judgment pronounced publicly 62 and to be heard from a third instance court.63 Also, the submission of the Attorney General’s observations to the Supreme Court only, i.e. the lack of an opportunity to respond in the applicant’s defence,64 formed the grounds for an ECtHR judgment. The asylum issue formed the object of two cases taken to Strasbourg. In Ahmed,65 the applicant who had fled Somalia, had been granted refugee status according to the definition in the Geneva Convention. The applicant was deprived of his refugee status because he had been convicted of attempted robbery and sentenced to two and a half years in prison. The decision was upheld although the applicant asserted that the situation in Somalia had become worse since his departure in 1991. Austria was convicted for violation of Article 3 ECHR as the applicant could not return to Somalia without being exposed to the risk of a treatment contrary to Article 3 ECHR. In spite of this ruling, Austrian authorities did not grant him any subsidiary protection and the applicant finally committed suicide on the Square of Human Rights in the city of Graz.66 In Bilasi-Ashri,67 the applicant had fled Egypt and asylum proceedings were still pending when he turned to the ECtHR for alleged violation of Articles 3, 6, 8 and 13 ECHR. The applicant was convicted in absentia for belonging to an illegal association threatening national order and security by means of violence and terror as well as of serious criminal offences in Egypt, and was therefore sentenced to fifteen years in prison and hard labour. The Egyptian Ministry of Justice filed a request for extradition, which was granted on certain conditions,68 and the applicant was detained with a view to his extradition. The case was struck out of the list as the applicant was released

61 62 63 64 65 66 67 68

ECtHR, Rushiti v. Austria (no. 28389/95), 21 March 2000. ECtHR, Szücs v. Austria (no. 20602/92), 24 November 1997. ECtHR, Cooke v. Austria (no. 25878/94), 8 February 2000. ECtHR, Bulut v. Austria (no. 17358/90), 22 February 1996. ECtHR, Ahmed v. Austria (no. 25964/94), 17 December 1996. See Salzburger Nachrichten, 25 March 1998. ECtHR, Bilasi-Ashri v. Austria (no. 3314/02), 26 November 2002. Those conditions were that the original decision of the Egyptian court would be declared null and void and that the applicant would not be re-tried before an Egyptian court with exclusive jurisdiction to deal with political criminal cases but before an ordinary court.

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from detention immediately after the Egyptian authorities had indicated that they would not accept the conditions set out in the extradition order. In the case of Karakurt,69 a Turkish citizen who was elected works’ council representative in 1994, but deprived of his mandate on the grounds of his Turkish nationality, turned to the ECtHR invoking Article 11 ECHR. The case was struck out of the list since a staff association such as the works’ council in the respective case could not be considered an ‘association’ within the meaning of Article 11 paragraph 1 ECHR.70 It was also a Turkish national who brought one of the cases concerning Article 14 ECHR to the Court. The applicant was refused emergency assistance [Notstandshilfe] on the grounds of his nationality (Gaygusuz v. Austria)71; the Court considered this a violation of Article 14 ECHR in conjunction with Article 1 of the First Protocol to the Convention. The refusal of emergency assistance was exclusively based on the fact that the applicant did not have Austrian citizenship and was not underpinned by any ‘objective and reasonable justification’. In the Kamasinski case72 the applicant, a US citizen, complained of insufficient interpretation both in pre-trail and the main proceedings. The Court established no violation of Article 14 ECHR, yet found a breach of Article 6 ECHR as the applicant had been refused leave to attend the appeal hearing before the Supreme Court. In the category of cases on behalf of homosexuals, a total of ten were taken to Strasbourg, nine of which related to the above-mentioned section 209 of the Austrian Criminal Code. This section prohibited homosexual acts between male minors and adults. In 1996, the Austrian Parliament held a debate on the motion to repeal section 209 of the Criminal Code, but finally the legal provision remained in force. The resistance to abolishing the respective section can be attributed to the conservative People’s Party and diverging views among Social Democrats. The president of the Austrian lesbian and gay rights

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ECtHR, Karakurt v. Austria (no. 32441/96), 30 July 1996. Even though the Court did not issue a judgment in promotion of the rights of the applicant in the given case, in April 2002 – after eight years of unsuccessful judicial proceedings both before domestic courts and the ECtHR – the UN Human Rights Committee took a decision. It adopted the view that stripping the man of his mandate was an offence to Article 26 of the International Covenant on Civil and Political Rights, as ‘it is not reasonable to base a distinction between aliens concerning their capacity to stand for election for a work council solely on their different nationality’. Austria, therefore, has to ‘ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, and to provide an effective and enforceable remedy’. See UN Human Rights Committee, International Covenant on Civil and Political Rights, Seventy-fourth session, 18 March–5 April 2002, CCPR/C/74/D/965/2000, http://www.bka.gv.at/dokumente/karakurt.pdf. ECtHR, Gaygusuz v. Austria (no. 17371/90), 16 September 1996. ECtHR, Kamasinski v. Austria (no. 9783/82), 19 December 1989.

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organisation Rechtskomitee LAMBDA,73 who is also the founder of the Platform Against Section 209,74 encouraged convicted homosexuals to bring their cases to the European Court of Human Rights. Two of these cases were declared inadmissible because they were ill-founded.75 In seven cases the Court established a violation of Article 8 ECHR taken together with Article 14 ECHR.76 Until 2002 the position taken by the Constitutional Court on the issue was that section 209 was meant to protect young, maturing males from developing a ‘wrong’ sexual orientation. The court considered that homosexual influence endangered male adolescents to a significantly greater extent than girls of the same age. In 2002, upon a request for review made by the Innsbruck Regional Court, the Constitutional Court finally found that the criminal provision was unconstitutional. Although the pertinent section was repealed shortly before the ECtHR brought its first judgment on the issue, the sustained litigation in Strasbourg had perceptible effects on the domestic measures in reaction thereto. Taking those cases to Strasbourg was part of a broader campaign initiated by NGOs and certain politicians pressuring for the abolition of section 209, which gained further momentum by EU requests: the European Parliament invited the Austrian legislator twice to stop violating the human rights of homosexuals. In spite of that, the Constitutional Court would not have declared section 209 unconstitutional, had there not been several such cases pending in Strasbourg. By delivering highly innovative judgments, critical of state laws and practices, the Court served as an engine of human rights promotion.77 Yet, the strong support was solely based on the availability of lawyers specialised in this field.78 In Ladner,79 a violation of Article 8 ECHR in conjunction with Article 14 ECHR was established under different circumstances: a homosexual person

73 74 75

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See www.rklambda.at. See www.paragraph209.at. ECtHR, H.F. v. Austria (no. 22646/93), 17 September 1993; and Zukrigl v. Austria (no. 17279/90), 10 October 1992. ECtHR, Woditschka and Wilfling v. Austria (nos. 69756/01, 6306/02), 21 October 2004; R.H. v. Austria (no. 7336/03), 19 January 2006; L. and V. v. Austria (nos. 39392/98, 39829/98), 9 January 2003; S.L. v. Austria (no. 45330/99), 9 January 2003; H.G. and G.B. v. Austria (nos. 11084/02, 15306/02), 2 June 2005; and Wolfmeyer v. Austria (no. 5263/03), 26 May 2005. Information provided by a lawyer and president of an association for the rights of homosexuals on 4 September 2007 and by a university professor for public law and member of the Austrian Constitutional Court on 7 September 2007. Information provided by a Member of the Austrian Ombudsman Board, the Green Party and former Chairperson of the Committee on Human Rights in the Austrian Parliament on 26 September 2007. ECtHR, Ladner v. Austria (no. 18297/03), 3 February 2005.

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was prevented from succeeding to a tenancy agreement that had been concluded by his partner before his death. The Austrian Rent Act provided that family members had a right to succeed to a tenancy but the Constitutional Court interpreted the respective provision of the Rent Act in a historical way, stating that the legislator’s intent at the time of introducing the Act had not been to embrace persons of the same sex by the term ‘family members’. With regard to the protection of the rights of religious minorities, only two cases were successfully taken to the ECtHR, namely on behalf of Jehovah’s Witnesses, an association-at the time of drafting this chapter-still not recognised as a religious community in Austria. Concerning this matter, the ECtHR released a judgment pertaining to the status of Jehovah’s Witnesses in Austria in July 2008, wherein the Court established a breach of Article 9 ECHR read in conjunction with Article 14 ECHR. This was based on the fact that the Austrian authorities granted Jehovah’s Witnesses legal personality only twenty years after their first request and had therefore treated them differently than other religious communities. Furthermore, the Court found a violation of Article 6 ECHR concerning the excessive length of proceedings for the recognition of Jehovah’s Witnesses as a religious group.80 In the Hoffmann case, a member of Jehovah’s Witnesses took a custody case to the ECtHR. Her divorcé, who was of Roman Catholic faith, had been granted parental rights over their two children, who were both Roman Catholics, after the Supreme Court overturned the judgments of the courts of lower instance. It stated that the ‘two children [did] not belong to the faith of the Jehovah’s Witnesses’. Their education could no longer be continued in accordance with the provision that ‘neither parent may decide without consent of the other that the child [was] to be brought up in a faith different from that shared by both parents at the time of the marriage or from that in which he or she has hitherto been brought up’. In addition, the lower courts had failed to give due consideration to the ‘children’s welfare’. Albeit it would be preferable for young children to be taken care of by their mother, the court argued, this only applied provided that all other circumstances essential for the children’s wellbeing were equal, which was not the case here. Consequently, the ECtHR established a violation of Article 8 ECHR in conjunction with Article 14 ECHR and argued that ‘a distinction based essentially on a difference in religion alone [was] not acceptable’.81

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81

ECtHR, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40825/98), 31 July 2008. ECtHR, Hoffmann v. Austria (no. 12875/87), 23 June 1993.

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5. Conclusion In the above analysis we have demonstrated that the Strasbourg Court has served as the supreme instance for the revision of fundamental rights of individuals from marginalised groups and minorities in Austria. In many cases the respective judgments have brought about noteworthy improvements, either by provoking amendments to the domestic legal framework or by raising the legal community’s awareness about the issues and circumstances relevant for the protection of those vulnerable groups. About ninety decisions and judgments of the ECtHR against Austria are related to the core civil and political rights and/or directly involve or have consequences for marginalised groups, including aliens and asylum seekers, members of ethnic or religious minorities and homosexuals. Most of the cases that concern aliens deal with residence prohibitions after criminal convictions, unfair trial or discrimination on grounds of nationality. The former have not yet resulted in amended legislation but the government usually offers solutions on a case by case basis (i.e. the repeal of residence prohibitions). Such an approach constitutes a practical method for the domestic authorities in charge to cope with those cases, since it does not attract as much public attention as amending aliens’ legislation. Changing aliens’ law with the aim to improve the legal security of aliens regularly results in public discussions fuelled by both, right wing and conservative parties that demand to stop migration for reasons of public and social security interests. Another string of cases taken to the Court has criticised discriminatory penal and civil law provisions on grounds of sexual orientation, and a breach of homosexuals’ right to private and family life. Here, the role of the ECtHR has been stronger. Cases relating to the abrogation of section 209 of the Austrian Criminal Code clearly followed a litigation strategy. Although legislative changes cannot (solely) be attributed to the judgments pronounced by the ECtHR, the Court very much contributed to the promotion and protection of the rights of homosexuals. The improvements brought about could not have been expected by means of national remedies for quite a while. Few cases have concerned religious minorities, namely sects and Roman Catholics. So far, there have not been any cases taken to Strasbourg by Muslims. Predominantly this is due to the fact that Islam is one of the religious denominations holding the status of a legally recognised religious community with equal rights to those of Catholics in Austria. The human rights discourse in Austria is rather restricted to legal experts, NGOs specialising on human rights as well as certain media. Although human rights are indivisible and universal, awareness for particular fundamental rights is higher in specific policy areas than it is in others. This unequal

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distribution is connected to the resources of mobilisation and interests which cluster around specific policy areas. Lawyers and NGOs are much more active with regard to asylum seekers, immigrants, and refugees than on other subjects. In the areas of asylum and aliens’ policies NGOs quite frequently make references to the ECHR, however, rather few cases are taken to Strasbourg, at least as far as asylum seekers are concerned. The main obstacle to approaching the ECtHR in those cases is certainly the long duration of the national proceedings until domestic remedies are exhausted. Yet, people seeking protection depend on prompt and non-bureaucratic solutions.82 Another category of rights that is publicly discussed due to NGOs’ and lawyers’ activities is the equal treatment of homosexuals. Awareness of human rights in this area is much higher than for the issues of fair trial or compensation payments for unjustified imprisonment for example, which are also less often referred to by the media. Even NGOs that have a broad human rights approach tend to comment on these issues more often than on other human rights violations that occur in Austria.83 In recent years a certain shift of tendencies can be identified as governmental authorities increasingly foster the dialogue with NGOs concerning the promotion of human rights and possible awareness raising strategies. This development goes hand in hand with the rise of the right wing Freedom Party, which successfully dominated the political agenda regarding asylum, immigration and integration policies. The Freedom Party promotes a rather dangerous concept of human rights; in their point of view, the ‘privilege’ of human rights protection is restricted to the ‘hard working’ Austrian nationals as opposed to aliens. Public awareness for human rights is therefore driven by the political agenda and discourse, which leads to a quite selective perception of these rights. The fact that the European Convention on Human Rights enjoys constitutional status does not have much impact on the human rights understanding of Austrian authorities. The awareness for fundamental rights has historically been rather low and underdeveloped. Nowadays, this situation has slightly improved and the ECtHR has played an important role in this development. It would be particularly interesting to analyse the attitudes of judges, opinion leaders, decision makers and political parties towards the ECHR and its relevance for the Austrian legal system and practice. Besides the (formerly) structural deficiencies within the judicial training system, human rights are lacking

82

83

Information provided by a lawyer engaged in asylum and aliens’ law matters since twenty years on 28 March 2008. These would amongst others include access to fair trial, freedom of opinion, freedom of religion, as well as discrimination on the grounds of ethnic origin and religion.

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consideration by the Austrian judicial sector as such. As we pointed out at the beginning of this chapter, the Constitutional Court is competent for reviewing the decisions of administrative authorities and legislative acts, but it does not have the authority to review decisions of judicial bodies. This is the responsibility of the Supreme Court, which has only recently started to make references to the Strasbourg Court’s jurisprudence. However, the domestic human rights protection system is overall effective in principle. Looking at the added-value of the European Court of Human Rights especially with regard to vulnerable and minority groups compared to Austrian courts, one comes across the amounts of compensation awarded by the Strasbourg Court. In certain cases of discriminatory treatment these can exceed the sums fixed for damages by Austrian courts by far. Moreover, at the national level compensations are provided for material (i.e. physical) damage only, which results in an exclusion of those seeking redress for any kind of discrimination falling within ‘moral prejudice’ (immaterial damage). Yet, one cannot fully be convinced of the damages awarded by the ECtHR. In the cases connected to the discrimination of homosexuals for instance, the amounts that were granted by the Court varied extremely from case to case. Moreover, the victims of human rights violations regularly have to spend a lot of the compensation awarded to them on the costs of their lawyers. That is to say that the Court’s accessibility is determined by the financial resources of the potential applicants; this is a crucial factor with regard to applicants from minority groups in particular since they are more likely to be financially ‘underprivileged’ than applicants from the majority population. Further obstacles for resorting to the Strasbourg Court might have to do with the length of national proceedings and the costs involved in criminal procedures. For instance, the applicants claiming against criminal convictions under section 209 of the Criminal Code could not recover the costs for previous domestic proceedings, a fact which could be seen as a further violation of their enjoyment of human rights.84 Another interesting issue is that certain minorities vulnerable to human rights violations are not represented among litigants in Strasbourg, such as Muslims or the Carinthian Slovenes. From the current stage of information one cannot deduce whether their legal status (recognised as religious community or protected by specific minority laws respectively) suffices for efficient protection against human rights violations or whether any other restraints

84

Information provided by lawyers experienced in litigation before the ECtHR, interviews done on 4 September 2007 and 28 September 2007, and by the general secretary of the Litigation Association of NGOs Against Discrimination on 11 December 2007.

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exist to take legal action before the ECtHR. In general, the actual factors influencing individuals or NGOs to bring cases to Strasbourg with the explicit aim of changing certain legal provisions seem to be rather concealed. In conclusion, the ECtHR offers efficient remedies in the benefit of individuals belonging to marginalised groups in case the domestic courts fail to vindicate their rights. It is an essential function of the human rights regime to protect those who are weak, either in numbers, in financial resources, or in power of persuasion. In Austria this perception goes even further, and human rights are primarily considered a protection mechanism for minorities or marginalised groups in society. The outmoded concept of a ‘foreign’ rights protection system interfering with the domestic (judicial) structures strongly calls for alteration by means of shaping opinions and creation of political consciousness. This would also benefit those vulnerable individuals whose human rights are not sufficiently protected at the national level.

Chapter Three Protecting Individuals from Minorities and Other Vulnerable Groups in the European Court of Human Rights, Litigation and Jurisprudence: The Case of Bulgaria Yonko Grozev, Daniel Smilov and Rashko Dorosiev 1. Introduction Bulgaria joined the Council of Europe in 1992, shortly after the fall of communism. Accession to the Council of Europe was seen at the time as the first step in the reintegration of the countries of Eastern Europe in the family of European democracies; it had the task of promoting and supporting the necessary democratic changes in those countries. For the Council of Europe, a key instrument in pursuing the task of building democratic institutions and promoting respect for basic rights was the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ‘the Convention’) and the right to lodge complaints in the European Court of Human Rights (hereafter ‘the Court’ or ‘the ECtHR’). To meet one of the political preconditions for joining the Council of Europe, Bulgaria ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and its main protocols on September 7, 1992. In the next few years, the country ratified a number of human rights treaties, among them the European Convention for the Prevention of Torture, the European Social Charter and in 1999 another landmark Council of Europe document – the Framework Convention on the Protection of National Minorities. From the 1990s onwards, against a background of no domestic tradition in the promotion of basic human rights or institutions to safeguard such rights, the Council of Europe played a leading role in promoting basic rights, through the ECtHR and its other monitoring and reporting mechanisms.

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After 1989, the transition from a communist system to a democratic, free market system has raised numerous new legal and governance issues. Democracy also meant that, in the political process, prejudices held by the majority were expressed, along with hostility towards marginalised groups. Some religious groups as well as ethnic groups were the targets of such prejudice. At the same time, the domestic judicial system was not up to the task of providing protection, leaving the ECtHR as the ultimate guarantor of human rights. Litigation as an advocacy tool was first used in Bulgaria by several human rights groups in the mid-1990s. Western governments and private donors supported these groups financially. The groups were not affiliated with any of the existing political parties. The groups’ strategy was devised on the basis of an understanding that Bulgarian courts were not a reliable forum for human rights complaints and that recourse to the European Court of Human Rights should be taken as early as possible. Over the years, these groups took up various human rights issues, some of them related to basic political rights, while others related to fair trial and other procedural issues. Most of the cases brought before the European Court of Human Rights were not related to political rights. A significant number of them were also not raising issues larger than the individual case concerned. Some of the cases, however, were cases representing the most important civil and political rights issues in the mid-1990s, such as religious rights of Muslims and minority Christian religions, and freedom of assembly and association of ethnic Macedonians. Another issue that was addressed through litigation was the use of excessive force by police against Roma. In the early 1990s, human rights groups identified the situation of Roma as particularly troubling. Monitoring revealed growing problems of unemployment, lack of access to education and to other services provided by the government. In this chapter, we review the existing system of rights protection in Bulgaria with a focus on the rights of individuals from minorities and other vulnerable groups, and the role of the ECtHR in this process. In section 2 of the chapter, we examine the basic components of the rights protection mechanism in Bulgaria, the position of the Convention vis-à-vis national legislation and its treatment by national courts, as well as the human rights issues that have preoccupied the Bulgarian academic and legal community. In section 3, we offer a retrospective review on mechanisms and motivation for litigation at the ECtHR on claims raising Articles 8-11/14 ECHR and concerning rights of individuals from marginalised groups. In section 4, we review the ECtHR’s jurisprudence on Bulgarian cases concerning rights of individuals from minority and marginalised groups. The cases could be divided roughly into four separate groups: cases concerning state interference in the religious affairs

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of marginalised groups; cases of racially motivated violence against Roma; cases involving prohibition of political parties, refusals to register a party or an organisation, and restrictions on public gatherings and rallies; and one case raising gender issues.

2. The Study of the ECHR: State of the Art in Bulgaria The protection of human rights under the 1991 Constitution in Bulgaria is entrusted primarily to a number of judicial bodies. The most important among these are the Supreme Court of Cassation and the Supreme Administrative Court, the highest courts in the Bulgarian judicial system. The first deals with criminal law and civil law cases, while the second is competent in administrative law matters. Since the late 1990s, both the Supreme Court of Cassation and the Supreme Administrative Courts have increasingly relied in their case law on ECtHR jurisprudence. However, most of this new case law has been on fair trial and other procedural issues, and less on political and equality rights. This influence of case law of the Court on domestic jurisprudence has come in two forms. The first, quite widespread, has been the interpretation by domestic courts of certain provisions of domestic law in a manner that could be supported by international law. There is an abundance of rulings and judgments by the Supreme Court of Cassation on pre-trial detention and on fair trial guarantees that rely on Articles 5 and 6 of the Convention, and a fair number of judgments of the Supreme Administrative Court in asylum cases that do the same. The second, more exceptional impact on the domestic courts, is to be observed in cases where their judgments are directly influenced by the ECtHR’S case law, changing well-established domestic jurisprudence. There are far fewer examples of such cases, most notably one on judicial review of disability benefits and another one on deportation of foreigners. One key national institution, which by its original design should play an important role in protecting human rights, is the Constitutional Court (the “CC”). The Bulgarian Constitutional Court is not part of the judicial system but is an independent body, which primarily exercises review of the constitutionality of legislation. The is also the body authorised to rule on the constitutionality of political parties, which was the cause of one Article 11 case in the ECtHR. It is the key national institution for the protection of human rights, since it is the main instrument guaranteeing the supremacy of the Constitution and the basic rights guaranteed by it. Individuals, however, are not empowered to address this court directly. This has meant that it has been engaged to a very limited extent in the protection of basic rights and liberties. Its activities have centred on invalidating parliamentary legislation that is

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contrary to the provisions of the Constitution and that violates the rights enshrined in it. Apart from the review of the constitutionality of legislation, the CC has had some impact on the protection of rights via its rather peculiar prerogative to interpret the constitutional provisions in abstracto. Through this procedure, the CC could be asked by state bodies to give authoritative interpretation of constitutional provisions without reference to a specific case. Examples of such rulings have been the broad interpretative judgments of the CC on religious rights and on freedom of expression. The practical effect of such rulings, however, has been rather insignificant. The CC is also the body authorised to rule on the constitutionality of political parties, which was the cause of one Article 11 case in the ECtHR. Apart from ordinary courts and the Constitutional Court, there are several other institutions designed to augment the protection of rights in Bulgaria. The Ombudsman is a relatively recent institution in the Bulgarian legal system and so far has had no real impact. The potential importance of the Ombudsman grew after a 2006 amendment to the Constitution that empowered the Ombudsman to address the Constitutional Court. The idea behind this amendment was to provide an indirect mechanism for citizens to reach the CC through the mediation of the Ombudsman. It was argued that the Ombudsman could serve as a ‘filter’ for unfounded individual complaints, which might ‘flood’ the court. Another non-judicial body which has been introduced with the intention of strengthening the protection of rights is the Commission against Discrimination. This body is empowered to consider complaints under the Non-Discrimination Act. Since it has been recently introduced, however, the Commission has not been able to develop extensive practice and to contribute significantly to clarifying standards in the protection of rights. The ECHR has priority over ordinary legislation in Bulgaria, although it is arguably inferior to the legal force of the Constitution. Although this might be a matter of contention and controversy, if the ECHR is in conflict with the Constitution, the Constitution should prevail – at least according to some of the most authoritative scholars in the field. The Bulgarian Constitution does contain provisions which mirror all provisions of the Convention. In the few points of potential divergence, like the express ban on political parties formed on an ethnic and religious basis, the Constitutional Court has sought to interpret the constitutional provision in a way which is compatible with the Convention.1 In such cases, the CC has departed significantly from the literal language, and more interestingly, from the intentions of the drafters of the Constitution. In other instances, the constitutional judges have opted to

1

See, for instance, Decision no. 4, 1992 of the Constitutional Court.

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interpret creatively articles of the Convention, in order to make them compatible with their reading of the Bulgarian Constitution.2 While the CC has made an effort to ensure the compatibility of its interpretations of constitutional rights with the articles of the Convention, this effort has hardly been sufficient. The CC has failed to introduce in Bulgarian adjudication rigorous standards of human rights protection, especially those regarding Articles 9, 10 and 11 of the Convention. Even where decisions have had a favourable outcome from the point of view of rights’ protection, consistent legal arguments, clarity and stability of judgements and judicial interpretations are lacking. And in some cases, as shown below, judges have even clearly departed from the doctrine and rationale of the ECHR. Although Bulgarian courts rely increasingly on the ECHR in their jurisprudence, the introduction of international human rights law into domestic law has been slow and difficult. Throughout the 1990s, courts would implicitly, and sometimes even explicitly, say that international law is not directly applicable. While in the late 1990s such attitudes were overcome, knowledge of international law still remained insufficient and the courts were reluctant to use it extensively. This has been particularly true in the field of politically sensitive issues, where courts traditionally have been more deferential to executive decisions. The first obvious problem of rights protection in Bulgaria is the lack of clearly articulated standards in the interpretation and application of basic human rights, which leaves significant discretion in the hands of judges. The CC has been most at fault because this was the judicial body that was supposed to develop clear standards to serve as an example to the ordinary courts. Ordinary judges in Bulgaria are generally reluctant to refer directly to the Constitution and the ECHR – their jurisprudence tends to be more formalistic, refusing to provide detailed reasoning and to stay close to the language of domestic legislation. With a few exceptions, the rulings of the CC have also been rather formalistic, refraining from setting standards to be employed in similar cases. Because of this, fundamental standards of rights adjudication in established democracies were not ‘transplanted’ in the jurisprudence of the Bulgarian courts. This has led to very particularistic jurisprudence, and to the possibility of abrupt changes of doctrine. Ultimately, political expediency and other contextual factors have played a significant role in domestic jurisprudence on rights protection. The lack of relatively objective judicial standards has led to unstable jurisprudence of the courts on issues related to rights, and to changes

2

See, for instance, Decision no. 2, 1998 of the Constitutional Court.

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in doctrinal stance that are somewhat ad hoc and difficult to explain. Even if there is an analysis on the basis of a ‘balance’ between public interest and individual rights, it is not explicitly articulated, and it is most likely extremely dependent on the specific details of the case, resulting in significant discretion and lack of predictability. Specific cases have raised other concerns. In interpreting political rights and the right to association in a particular case, the Constitutional Court developed what could be called a ‘militant democracy’ attitude. The Constitutional Court exaggerated the danger presented by a specific activist organisation – OMO Ilinden – and its activities, such as public meetings and demonstrations. In its judgment on the constitutionality of OMO Ilinden as a political party,3 the CC interpreted any stated intention to territorial autonomy, federalism, or other type of constitutional reform as a threat to the nation. This served as a basis for banning the activities of the organisation and refusing to register it without requiring a stricter scrutiny of the alleged danger to the country’s territorial integrity and security. The 1991 Constitution itself fuels this ‘militant’ attitude by expressly banning ethnic and religious political organisations,4 despite the endorsement of the principle of political pluralism. It is true, that in their jurisprudence, Bulgarian courts have not directly enforced this ban. But they have used other provisions, such as the ban on organisations threatening the constitutional order and the ‘integrity of the country’, to achieve the same result. In the first ten years after the adoption of the Convention in 1992, the Bulgarian academic community largely neglected the study of ECtHR jurisprudence. There has been some academic interest in the past few years, but it has been limited, and certainly not focused on political rights and the rights of marginalised individuals and minorities. Especially striking is the lack of recent articles on the system of rights protection of the Council of Europe in general. In the major three law journals, Legal Thought (Правна мисъл),5 Contemporary

3 4 5

See Decision no. 1, 2000 of the Constitutional Court. See Article 11(4) of the Constitution of the Republic of Bulgaria. Legal Thought (Правна мисъл) is the leading academic law journal in the country. It is published by the Bulgarian Academy of Sciences. A large part of every issue is devoted to theory of law and constitutional law matters. It is surprising that against this background there is actually very little material on the topic of ECtHR jurisprudence. For the period 1995–2007, there have been only six publications on the topic, and most of them are descriptive introductory articles on the Council of Europe instruments of rights protection. Only one of these is directly relevant to political rights and non-discrimination issues: professor Emil Konstantinov’s 1996 piece on the ECHR and the rights of minorities, but it also follows the general trend of presenting the main legal provisions of basic texts, such as the Convention, the framework convention on minority rights, etc. (E. Konstantinov, ‘The European Convention of Human Rights and the problem of minority rights’, Legal Thought 1 (1996), 94).

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Law (Съвременно право), and Juridical World (Юридически свят) there were between 2002 and 2007 a total of about five articles of interest. In those five years, one of the journals – Juridical World – had no articles at all on the themes of non-discrimination and political rights in the jurisprudence of the ECtHR. This indifference was displayed against the background of a sharp increase in Bulgarian cases in the Strasbourg Court and a rising number of judgments by the ECtHR on such issues. Generally, articles on the topic have approached problems exclusively from a doctrinal point of view, focusing on existing substantive and procedural provisions of domestic law or Council of Europe norms. Articles in academic journals also have avoided as a rule any discussion of ECtHR judgments on cases arising from Bulgaria.6 One of the issues that has raised particular difficulties for domestic jurisprudence is the ban of ethnically-based political parties and parties threatening national security and territorial integrity. On this issue, established academic writing has demonstrated an unwillingness to adopt the standards of the ECtHR. Thus, in Commentary to the Constitution of the Republic of Bulgaria, written by the most authoritative academics dealing with constitutional law in Bulgaria,7 Prof. Tanchev has argued that the most essential criterion for deciding that a party is unconstitutional should be that its character is exclusive. This means that it is impossible for citizens who belong to other communities, different in race, religion, or ethnicity, to become members of the party.8 Furthermore, in discussing the prohibition of parties envisaged by Article 44 of the Constitution, he wrote that the ‘… only restrictions on the freedom of

6

7

8

The rest of the articles explore topics which relate either to the general role and modus operandi of the ECHR, or to certain specific procedural issues of the workings of the Strasbourg court. In the first group we could place the articles by professor Neno Nenovski, (‘European Commission for Democracy through Law at the Council of Europe’, Legal Thought 2 (1998), 106) discussing the role and functions of the European Commission for Democracy through Law (the Venice Commission) at the Council of Europe, the piece by Antonia Angelova (‘Democratic society and restrictions on rights according to ECHR’, Legal Thought 1 (1996), 77) on the legitimate restrictions of rights in a democratic society, and the article by Emil Konstantinov (‘The reform of the ECHR and the development of the European legal space in the humanitarian sphere’, Legal Thought 1 (2002), 59) on the reforms in the ECHR apparatus and the future of the pan-European legal space. In the second category we find again an article by professor Konstantinov (‘Protocol 11 of the ECHR’, Legal Thought 4 (1998), 19), introducing the reader to the institutional and organisational changes entailed by Protocol no. 11 of the Convention. The one exception confirming the rule is an article by judge Panova of the Supreme Court, focusing on the implications for Bulgarian law of the Al-Nashif judgment. B. Balamezov et al., Commentary to the Constitution of the Republic of Bulgaria (Sofia: Siela, 1999). Ibid, p. 66.

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assembly are … the setting of goals against the sovereignty, territorial integrity of the country and the unity of the nation, goals of inflaming racial, ethnic or religious hatred, of violating the rights and freedoms of citizens … ’.9 It is evident from this commentary that these standards for banning a party are potentially more ambiguous and more restrictive for minority parties than ECHR standards. In particular, setting anti-constitutional goals per se cannot be a ground for the ban of a party, contrary to the views transpiring in the commentary. Given this doctrinal ambiguity, it is no surprise that in 2000 the Constitutional Court banned the OMO ILinden party mainly for allegedly harbouring secessionist goals. The general void in the academic literature of reviews of ECtHR jurisprudence has been filled by NGO publications, featuring more academic articles in the journal of Bulgarian Lawyers for Human Rights – an association of human rights lawyers and activists, and the online publication of papers by EURORIGHTS.10 These publications cover the jurisprudence of the Strasbourg Court in some detail, and feature special issues devoted to key topics of rights protection, such as affirmative action and non-discrimination, freedom of speech, and others.11 In most of them, however, there is also some bias towards doctrinal legal analysis, and a lack of socio-legal studies of effects and implementation of legislation. The analytical discourse on the ECtHR jurisprudence in Bulgaria could best be described as divided into two streams. The ‘mainstream’ – which is dominated by senior academics in the most established law schools and the Bulgarian Academy of Sciences – is a discourse of benign neglect, whose main purpose is to introduce the public to certain procedural and substantive elements of Council of Europe human rights law. This discourse is highly descriptive, ‘value neutral’, does not venture into analysis of ECtHR jurisprudence and rarely engages in prescriptive arguments and specific ideas for domestic reform. The second, the ‘human rights – NGO’ discourse on the same topic is 9 10

11

Ibid. p. 145., emphasis added. Association for European Integration and Human Rights, http://www.eurorights-bg.org/bg/ categories/legal_doctrine/legal_doctrine.html. There is a number of papers and reports published on this website, which discuss problems of political rights and non-discrimination. See for instance: M. Ekymdziev, The prohibition of ethnic discrimination: International public law standards and national regulation; M. Ekymdziev, Who and why seek justice before the European Court in Strasbourg; E. Nedeva, An analysis of the domestic remedies for the protection of rights guaranteed by the ECHR; G. Karadzhov, The right to peaceful assembly according to the ECHR. All of these are introductory articles acquainting the reader with the doctrine and some aspects of the practice of the ECtHR. To the above-mentioned NGO publications we should add the monthly publication of the Bulgarian Helsinki Committee “Обектив” (Lens).

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more animated, demonstrates a deeper degree of knowledge and interest in the divergence between Bulgarian domestic laws and Council of Europe standards. Most of the time, this discourse has a specific reform agenda, and a strong policy orientation. Despite the lack of sufficient academic writing in law journals, they remain the main source of in-depth analysis of ECtHR jurisprudence. The Bulgarian academic community has not yet produced monographs on this topic. As to the press, traditionally it covers the more politically sensitive cases, with media coverage increasing with the rise in the overall number of judgments of the ECtHR against Bulgaria. Media coverage, however, is primarily focused on the outcome and the domestic short-term political repercussions of the judgments, and only rarely on the legal analysis and policy consequences. While reporting on individual judgments,12 the Bulgarian press has not developed any form of regular monitoring of the jurisprudence of the Strasbourg Court. Indeed, there is no regular monitoring of the decisions of the Bulgarian Constitutional Court and the other high courts either. Occasionally, online publications, as the Open Society Institute publication Politiki,13 have special issues on constitutional law matters, which indirectly address the implementation of international human rights standards in domestic law.

3. Litigation at the ECtHR Regarding Claims Raising Articles 8-11/14 of the ECHR as well as Claims Involving Vulnerable Groups There has been a steady increase in the number of applications and the number of judgments by the European Court of Human Rights against Bulgaria over the years. The number of applications filed annually was about 400 in the late 1990s. This peaked at 986 in 2004 and then fell to about 900. The number of judgments has also increased substantially. The Court delivered its first judgment against Bulgaria in 1997 and in the following years there were one or two judgments a year. Since 2003, however, the number of judgments has started to increase significantly, reaching 45 judgments delivered in 2006, 53 in 2007, and 60 in 2008. There are many reasons for the growing interest in approaching the ECtHR. The transition from a communist system to a democratic, free market system has raised many new legal and governance issues. The growing democratisation

12

13

The daily newspapers Trud and Sega consistently report judgment of the ECtHR against Bulgaria, while other media would cover them more sporadically. http://politiki.bg/?cy=61&&lang=1.

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of the country has allowed majority prejudices and hostilities toward marginalised groups to be voiced through the political process. Some religious groups as well as ethnic groups have been victims of such prejudices and policies. At the same time, the domestic judicial system was not up to the task of providing protection, leaving the ECtHR as the ultimate guarantor of human rights. National courts traditionally had very limited influence under communism, hearing family and minor property disputes. Broader policy issues were clearly beyond their reach. Among the judiciary, this created a legal culture of suspicion, with judges unwilling and at times even hostile to attempts to involve them in issues too close to politics. This was the dominant attitude after the democratic changes in 1990, making the ECtHR the key judicial institution protecting rights. In the late 1990s alone, and largely because of the increased number of judgments delivered by the European Court of Human Rights, the public and the legal profession started to recognise that courts have a legitimate role in deciding broader policy issues, beyond the immediate interests of the parties directly involved in any particular case. As mentioned, the judgments of the European Court of Human Rights have had an important role in this process, giving practical examples of court judgments with consequences significantly beyond the realm of a single case. Non-governmental organisations (NGOs) have also started to use courts as a forum for addressing broader policy issues. As of 2006, there were a number of policy issues that were addressed through litigation in the domestic courts, such as environmental issues, issues of access to government information and protection of consumer rights. Litigation on such issues has been supported, and in many cases initiated, by NGOs that have championed such issues. Thus, litigation has emerged as an additional tool in their activities. This has also become possible as a result of legislation adopted by the Bulgarian Parliament, including the Access to Information Act, environmental legislation and consumer protection laws. On several occasions, there were two stages; groups lobbied for the adoption of such legislation, and then became the first to take court action on the basis of it. Litigation as an advocacy tool, however, was first used in Bulgaria by several human rights groups in the mid-1990s. Western governments and private donors financially supported these groups, which were not affiliated with any of the existing political parties. The groups’ strategy was devised on the basis of an understanding that Bulgarian courts were not a reliable forum to raise human rights concerns and that recourse to the European Court of Human Rights should be taken as early as possible. Over the years, these groups took up various human rights issues, some of them related to basic political rights, while others were related to fair trial and other procedural issues. The approach

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of those groups in supporting and initiating litigation was not always the result of a careful strategy laid out in advance. Quite often, they were reacting to issues and problems, taking cases on an ad hoc basis, by using their general understanding of their priorities. Such decision-making reflected the priorities of those organisations, and their reading of the human rights situation and the extent to which individual cases were representative of more general issues and concerns. Most of the cases brought before the European Court of Human Rights were not related to political rights. A significant number did not raise issues larger than the individual case. Some of the cases that these groups brought to litigation, however, represented the most important civil and political rights issues in the mid-1990s, such as freedom of religious rights of Muslims and minority Christian religions, and freedom of assembly and association of ethnic Macedonians. Another issue that has been addressed through litigation was the use of excessive force by police against Roma. In the early 1990s, human rights groups identified the situation of Roma as particularly troubling. Monitoring revealed growing problems of unemployment, lack of access to education and other services provided by the government. Public attitudes were clearly hostile and becoming even more negative. Human rights groups working on those issues started to monitor them in a more consistent manner, to document and report cases of violation of basic rights of Roma. The use of excessive force on arrest, ill-treatment during detention and interrogation and unlawful use of firearms were common among the findings. Investigation of such cases and prosecution of the perpetrators, such as police officers, was practically nonexistent. The very low and marginalised social status of the victims, the lack of legal aid and the hostile attitudes of the investigation authorities led to virtual impunity for such crimes. Initial efforts by human rights groups to deal with the issue through the domestic system were completely unsuccessful. Investigations dragged on for many years, to be eventually closed for lack of evidence. The seriousness of the human rights violations in those cases, resulting in grave injuries and in some cases deaths, made those cases particularly appropriate for litigation in the European Court of Human Rights, which had well-established case law on the right to life and prohibition of torture. Efforts to challenge widespread discrimination against Roma through litigation were eventually focused on these cases. An added component was the argument that the ill-treatment or unlawful use of lethal force was motivated by the victims’ ethnicity. This complaint was formulated under the anti-discrimination provision of the Convention – Article 14. In developing that approach, a regional NGO based in Budapest, the European Roma Rights Centre, played a crucial role.

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It was to a lesser extent that other cases of violations of rights of individuals from vulnerable groups were the results of a deliberate strategy. Rather, they were the result of a straightforward reaction to violations of basic rights and the determination of the victim to receive redress. These included cases of violations of the religious rights of Muslims and other minority religious groups, as well as cases raising issues of freedom of association. Again, most of these cases were supported by human rights groups, providing legal representation both in the domestic courts and the ECtHR. The initiative for the cases, however, was coming from the victims. A larger number of cases before the ECtHR built up. However, this was not the result of a consistent effort to put pressure on the government, but rather the result of repeated similar violations because of the government’s refusal to change its policies. The cases of ethnic Macedonians were a good example of such a development. A special category of cases was those involving Jehovah Witnesses. These cases differed from the rest both in terms of the level of legal support for victims and in the approach of pursuing a broader objective beneficial to the group, rather than simply to the individual victim. The Jehovah Witnesses had a well-organised legal team of foreign lawyers, supporting litigation in the ECtHR. Unlike other litigants, individual applicants had less of a role in Jehovah Witnesses cases, important decisions being made by the leadership of the religious group. This had the effect that the goals of litigation had not merely been to receive compensation and publicity, but also to change government policy. The preferred strategy of Jehovah Witnesses was to settle cases if the government committed itself to amending legislation. This strategy was pursued very successfully towards improving legislation on alternative, nonmilitary service.

4. ECtHR Jurisprudence in the Cases under Review Cases involving vulnerable and minority groups corresponded to four broader human rights issues, present throughout the 1990s. These included attempts by successive governments to keep under control the religious activities of Bulgarian Muslims, state efforts to stop the spread of non-traditional religious groups such as evangelicals or Jehovah’s Witnesses, and to deny ethnic Macedonians in Bulgaria the right to express their identity and to organise, as well as the widespread discrimination and more particularly racist violence against Roma. In two of the cases pertaining to the religious activities of Muslims, the central issue was the legitimacy of state interference in the religious affairs of the

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community, and more specifically in the election of religious leaders. In the case of Hasan and Chaush v. Bulgaria the issue was the refusal of the Bulgarian Government to recognise a Chief Mufti and the religious leadership elected at a conference representing all Muslims in Bulgaria. The ECtHR ruled that there had been a violation of Article 9 of the Convention, the freedom to manifest religion, because domestic law on registering the religious leadership of a recognised religious community was unclear and allowed authorities to be arbitrary in exercising their powers. From a legal perspective, the case of Supreme Holy Council of the Muslim Community v. Bulgaria was identical, except that this time it was the rival religious leadership that had been refused registration by the Government. The ECtHR again found a violation of Article 9 ECHR. It reached this conclusion on the basis of the same reasoning, namely that the domestic law did not provide clear standards. Two other cases raising issues related to the activities of Muslims were the case Al-Nashif and Others v. Bulgaria and Musa and Others v Bulgaria. In both cases the political issue was control over funding for religious activities coming from countries in the Middle East. Both Mr. Al-Nashif and Mr. Musa were representing donors providing funding for Islamic religious training, building of mosques and other religious activities. In an effort to establish its authority over such activities, the government deported in 1999 and 2000 Mr. Al-Nashif and Mr. Musa, respectively. Although the ECtHR did not examine those two cases under Article 9 ECHR, but under Article 8 (respect for one’s private and family life) ECHR, the deportations of both Mr. Nashif and Mr. Musa clearly had been related to their Muslim religious activities. In its judgments, the ECtHR held that the legislation on the basis of which they were deported did not meet basic standards of the rule of law. The Court also held that the refusal of the Bulgarian courts to hear the cases had been violations of the right to an effective remedy. Similar problems of unjustified government interference in religious freedom were raised by other Article 9 ECHR cases, where the victims were nontraditional religious groups or individual members belonging to these groups. Throughout the 1990s, the number of non-traditional religious groups in the country increased, with some launching large campaigns to recruit new members. As a rule, those religious groups were supported by religious organisations based abroad. Their sometimes assertive recruitment strategies, the lack of a tradition of religious pluralism and a hostile reception among some political parties and the media created an environment hostile to such religious groups. As a result, cases were brought to the ECtHR by some evangelical groups, but the largest number of cases was brought by Jehovah’s Witnesses, claiming violation of freedom of religion.

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The ECtHR cases raised various legal issues. The most fundamental was the refusal by the competent authority to register a religious group.14 The legal issue in those cases was whether the Government could have unfettered discretion in deciding whether a religious community is a legitimate religion, whether it could be granted or denied legal status, and registered as a legal entity. Other cases raised complaints about the granting of custody rights to one of the parents, as the religious affiliation of the other parent was considered dangerous for the child by the court,15 denial of residence permits to foreigners,16 and a criminal conviction for refusal to perform military service.17 A number of such cases are still pending, with some of them being declared admissible. Some of them also raise additional issues, like dismissal of a school employee for membership in an evangelical group.18 In many of these cases, the parties reached an amicable settlement following the admissibility decision. Following such amicable settlements, national authorities allowed for the registration of religious groups,19 reconsidered parental rights, gave amnesty to those convicted for conscientious objection, and amended the law on alternative military service. The granting of amnesty and the legislative amendments were the result of the admissibility decision in Stefanov v Bulgaria and four other similar cases in the ECtHR. An important theme in cases under review by the ECtHR were issues of prohibition of political parties, refusals to register a party or an organisation, and restrictions on public gatherings and rallies. Five out of the total of six cases under Article 11 of the Convention relate to the controversy around a small group of Bulgarian citizens identifying themselves as ethnic Macedonians. This group was systematically denied registration by the Bulgarian courts until 1999. In the meantime, the authorities banned public meetings and activities organised by supporters of their organisation, OMO Ilinden. Most prominently, they banned the annual celebrations of one of their historical figureheads – Yane Sandanski, and other political rallies in Blagoevgrad and Sofia. In 1999, the party was granted registration by an ordinary court, only to be banned by the Constitutional Court in 2000, on the grounds of presenting a threat to national security and the territorial

14

15 16 17 18 19

See among others: EComHR, Christian Association Jehovah’s Witnesses v. Bulgaria (no. 28626/ 95; 3/7/1997), 9 March 1998. EComHR, M.M v. Bulgaria (no. 27496/95), 9 July 1997. ECtHR, Lotter and Lotter v. Bulgaria (no. 39015/97), 19 May 2004. ECtHR, Stefanov v. Bulgaria (no. 32438/96), 3 May 2001. ECtHR, Ivanova v. Bulgaria (no. 52435/99), 12 April 2007. EComHR, Christian Association Jehovah’s Witnesses v. Bulgaria (no. 28626/95; 3/7/1997), 9 March 1998.

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integrity of the country. In five judgments, the ECtHR ruled that the various actions of Bulgarian authorities (i.e. refusing to register the OMO Ilinden organisation, and banning public rallies) violated Article 11 of the Convention. As to the outlawing of the political party by the Constitutional Court in 2000, the ECtHR held that there was no evidence that the party was promoting or supporting any undemocratic policies or activities. Its prohibition was thus disproportionate and in violation of the Convention. Cases of racially motivated violence against Roma, mostly by the police, were filed under Articles 2 and 3 of the Convention, the right to life and prohibition of torture, and under Article 14 ECHR, the prohibition of discrimination. A significant number of such cases were litigated and the first judgment by the European Court of Human Rights was delivered in 1998.20 It was followed shortly by a number of other judgments, where the Court found violations of the right to life or the prohibition of torture.21 In those first judgments, however, the Court either refused to consider the discrimination claims or rejected them explicitly. The refusal to find a violation was based on a legal standard developed by the Court requiring proof beyond reasonable doubt that the racial identity of the applicants had been the reason for their illtreatment. The applicants based their claim of discrimination on reports describing widespread ill-treatment of Roma. The argument developed on the basis of these reports was that there was a widespread pattern of ill-treatment of Roma by the police authorities and that there was no reasonable explanation other than discriminatory attitudes based on race. In February 2004, the ECtHR held that the killing of two Roma men by military police was not only a violation of their right to life, but also a violation of the right not to be discriminated against on the basis of ethnicity.22 The judgment was later reviewed by a Grand Chamber of the Court and although the standard under Article 14 ECHR was reshaped, the Court still confirmed the finding of a violation of Article 14 ECHR. It held that in a situation where Roma apparently ran a high risk of being ill-treated, the authorities were obliged to investigate whether race was a factor in the ill-treatment, and a failure to investigate a possible racist motive meant a violation of Article 14 ECHR. Since then, the ECtHR has held in one more case that the failure of the 20 21

22

ECtHR, Asenov v. Bulgaria (no. 42026/98), 15 July, 2005. ECtHR, Anguelova v. Bulgaria (no. 38361/97), 13 June 2002; ECtHR, Velikova v. Bulgaria (no. 41488/98), 18 May 2000; ECtHR, Ognyanova and Choban v. Bulgaria (no. 46317/99), 23 February 2006; ECtHR, Osman v. Bulgaria (no. 43233/98), 16 February, 2006; ECtHR, Tzekov v. Bulgaria (no. 45500/99), 23 February, 2006. ECtHR, Nachova and Others v. Bulgaria (no. 43577/98; 43579/98), 6 July 2005.

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authorities to investigate and prosecute incidences of racially motivated violence, led to a violation of Article 14 of the Convention. In this case, however, the racist violence was perpetrated by a group of skinheads, who assaulted and killed a Roma.23 A completely different issue was raised in M.C. v Bulgaria. In that case the applicant complained that the refusal of the Bulgarian prosecution authorities to prosecute two young men who allegedly had raped her, violated her Article 3 ECHR and Article 8 ECHR rights. The ECtHR held that there was indeed a violation of both rights, as the decision of the prosecution to drop charges against the suspects was apparently based on the premise that lack of active physical resistance by the alleged victim of rape, was proof that she had consented.

5. Conclusion The judgments of the ECtHR on Bulgarian cases have undoubtedly enhanced the protection of basic rights of vulnerable groups. In a large number of cases where the national justice system has either contributed to the violation of basic rights or failed to remedy the violations, the ECtHR has provided a remedy. From a broader perspective, the jurisprudence of the ECtHR has had a notable impact on the Bulgarian legal system, and, more broadly, on Bulgarian legal culture. In response to judgments by the Court, legislative amendments have been adopted on a number of issues. With respect to minorities these include amendments to legislation on alternative military service and legislation on registration of religious groups. While these changes did not resolve the issue of excessive governmental discretion and intervention in the exercise of religious freedoms, they were still an improvement. Similarly, the ECtHR’s judgments have also had a noteworthy effect on the domestic court’s case law. Similarly to the legislative amendments, the changes of domestic case law were not sufficiently thorough to fully remedy the underlying causes of rights violations, but there were examples of clear improvements. Following the Al-Nashif v Bulgaria judgment in 2002, the Bulgarian Supreme Administrative Court allowed for the first time judicial review of decisions to deport foreigners considered to be a threat to national security. Changes to Government policies have also been noted. Following the first OMO Ilinden case, the Government declared to the Committee of Ministers a change of policy, allowing their public gatherings.

23

ECtHR, Angelova and Iliev v. Bulgaria (no. 55523/00), 26 July 2007.

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While these changes were clearly positive, as a rule they were slow and usually half-hearted. Courts continued to have difficulties introducing a balancing test in their case law, reviewing the proportionality of interference with basic rights. This was the reason for finding separate violations in many of the religious cases. The courts were still reluctant to move away from the strict legality judicial review doctrine, which is well embedded in their jurisprudence. While the Supreme Administrative Court took on itself to apply directly the Convention, following the Al-Nashif judgment, ruling that there should be judicial review, the quality of that review is not very high. Domestic courts still refuse to order the police to present the evidence on the basis of which deportation of foreigners is ordered, which to a large extent deprives judicial review of effectiveness. And the change in policy towards OMO Ilinden has been half-hearted, with the Bulgarian authorities continuing to impede their public rallies, even if not banning them outright, and refusing to register the organisation. There have been no legislative or other amendments with respect to racist violence, and no effort to improve the effectiveness of police investigations and prosecutions of such incidents in the future. From a broader political perspective, the role of the ECtHR in protecting the rights of marginalised individuals and minorities remains ambiguous. In a famous article, Stephen Holmes24 has argued that sometimes the constitutional stability of a polity depends on keeping certain problems off the social agenda. The rules of avoiding a conclusive resolution, or keeping silence on specific issues are known as “gag rules”. It is probably fair to describe the ambiguous attitude towards the rights of minorities and their representation as a gag rule in Bulgaria’s constitutional context: the main political players were committed to avoiding these concepts becoming the subject of major discussions and problematic issues. What is surprising is that not only politicians have obeyed the gag rule, but so too has the academic community. This may partly explain the lack of academic writing on minority rights and minority representation – issues of key importance for the Bulgarian community. It is interesting to note that academics are more inert than politicians, although politicians now seem to be questioning the “gag rule” consensus of the first fifteen years of transition, academics – for better or worse – do not seem to be moving in the same direction. The political consensus of the transition period on bracketing out minority rights and representation from public discourse is probably the major reason for the incomplete domestication of ECHR standards in Bulgarian constitutionalism. As result of the growing number of

24

S. Holmes, Passions and constraint: On the theory of liberal democracy, Chapter 7, (Chicago: University of Chicago Press, 1995).

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ECtHR judgments on Bulgarian cases over the past several years, the silence on some issues concerning the rights of individuals from minority groups has been partially broken. In spite of this positive development, institutional responses to many issues have been inadequate – or there have been no responses at all. Another important aspect of the ECtHR’s impact on Bulgaria is the influence on public attitudes towards human rights protection in general and the rights of minorities and marginalised groups in particular. The general public has a somewhat ambiguous attitude to the ECtHR. On the one hand, the ECtHR enjoys wide public support, by and large because of the very low trust in the domestic system of judicial protection. This is no surprise, given that in the past decade Bulgarians have been much more inclined to trust external institutions (such as the European Union) more than domestic public institutions. To a great extent, the positive attitude towards the ECtHR are also determined by the increasing number of judgments on property cases, a matter where the Strasbourg court is perceived to be the last guarantor of just jurisdiction. On the other hand, in regard to some Strasbourg court judgments concerning minority issues the situation is completely different. In cases such as those brought to the ECtHR by OMO Ilinden, the general public approves of the Bulgarian courts’ judgments that were found to violate the Convention. In spite of this ambiguity, the ECtHR has an undoubtedly positive influence on public attitudes that might enhance the rights protection of the individuals from marginalised and vulnerable groups. However, changing public attitudes is a long and difficult process that will be determined by many additional factors.

Chapter Four Protecting Individuals from Minorities and Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in France Emmanuelle Bribosia, Isabelle Rorive and Amaya Úbeda de Torres 1. Introduction The history of Human rights in the French legal order started well before the creation of the European Convention of Human Rights (hereafter, ECHR). The famous Declaration of 1789 retains full effectiveness today and forms part of the country’s constitutional norms (bloc de constitutionnalité). The preamble of the 1958 Constitution states expressly that the 1789 Declaration and the human rights provisions enshrined in the former 1946 Constitution is part of positive law. Not all these rights and freedoms are, however, framed in a precise manner and some provisions amount more to ‘declarations of intent’ than to real positive rules.1 Therefore, the constitutional mandatory power of the legislator to make human rights effective is crucial.2 Despite this propitious background, the relationship between France and the European Convention of Human Rights has been ambivalent. Significant resistance from political and judicial authorities towards the Convention has been one of the consequences of the long tradition of human rights protection, which amongst other things reflected in efforts deployed to promote human rights at the international level. A striking example of this confrontational French position towards the Strasbourg-based system of rights review is the late ratification of the European Convention and acceptance of the European Court of Human Rights’ (hereafter, ECtHR) contentious jurisdiction. Despite the fact that France promoted and actively participated in the

1 2

B. Stirn, Les libertés en questions (Paris: Montchrétien, 2006), 6th ed., p. 11. Article 34 of the 1958 Constitution provides that legislative action shall establish ‘citizens fundamental guarantees necessary to exercise public freedoms’.

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elaboration of the European Convention, it did not ratify the Convention until 3 May 1974.3 The ratification of the Convention failed on several occasions and it only succeeded after strong pressure.4 Along the same lines, France only accepted the jurisdiction of the European Court of Human Rights on 30 May 1981.5 Nowadays, the official political position seems to have shifted and is largely supportive of the Strasbourg system.6 However, the judicial and doctrinal attitudes towards the European Court’s jurisprudence have not been devoid of ambiguity. At times, there have been calls for withdrawal from the system, as some of the ECHR’s condemnations were considered to be ‘superficial’ because they ignored the French legal and judicial tradition.7 Eventually, such reluctance has not prevented France from being a source of a large number of petitions. France faces an important number of individual complaints and at times has even accounted for the biggest share of the Strasbourg institutions’ case load.8 To a certain extent, the ‘attractiveness effect’ of French being one of the two official languages of the Court and the location of the ECtHR in Strasbourg account for the large number of complaints filed.9 Awareness of human rights and knowledge of the ECtHR’s work are also key factors explaining why, in 2004, France was one of the five states most condemned in Strasbourg. France was a party in 10,45% out of the global number

3 4

5

6

7

8 9

Decree 74–360 publishing the ECHR adopted on 3 May 1974, JO, 4 May 1974, p. 4750. L. Burgorgue-Larsen, ‘La France et la protection européenne des droits de l’homme’, Annuaire français des relations internationales (2005), 598. As to the reasons explaining the long period of distrust towards the ECHR in France, see E. Lambert Abdelgawald and A. Weber, ‘The reception process in France and Germany’, in Keller and Stone Sweet (eds.), A Europe of rights: The impact of the European Convention on Human Rights on national legal systems (Oxford: Oxford University Press, 2008), pp. 107–164. France ratified all additional protocols to the Convention, except Protocols nos. 12 and 13, the latter being in the process of ratification. The accession of the French Jean-Paul Costa to the presidency of the European Court of Human Rights in January 2007 is likely to foster further ratifications, as it was the case under the presidency of Judge René Cassin. See for instance the Kress case (no. 39594/98) decided by the Grand Chamber on 7 June 2001 and V. Haïm, ‘Faut-il supprimer la Cour européenne des droits de l’Homme?’, Dalloz 37 (2001), Doctrine, 2988. On the same line, see the opinion of the Council of State judge, B. Genevois, quoted by R. de Gouttes, ‘Les ambivalences de la jurisprudence de la Cour européenne des droits de l’homme en 2001’, in CREDHO cahier no. 8, La France et la Cour EDH. La jurisprudence en 2001 (Brussels: Bruylant, 2002), p. 19. For detailed figures, see Lambert Abdelgawald and Weber, ‘The reception process’, p. 25. Opinion expressed by Mrs Tissier, French agent at the Ministry of Foreign Affairs, Government agent before the European Court of Human Rights (interview held in Paris on 23 February 2007).

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of judgments issued (landing in third position after Turkey and Poland, a place it left to Ukraine and Russia in 2005).10 Legal reform has often followed violations of human rights highlighted by the Court and, in some cases, preceded the Court’s rulings to avoid future condemnation. The right to a fair trial continues to be, as for many other countries, the most frequently invoked right and important reforms have been implemented in this area. The case law concerning Articles 8 to 11 (combined or not with Article 14) of the ECHR is at the heart of our study. These provisions have been frequently used by claimants from minorities or other vulnerable groups to defend their views and interests. The rights enshrined in these provisions have received specific protection in the French legal order, and to some extent, in the 1789 Declaration. They are emblematic of the balance that has to be struck between the protection of human rights and other (national) interests in a democratic society. This chapter is divided into three main parts. First, it offers background information on the status of the ECHR in the French legal order, the judicial control mechanisms aimed at protecting human rights and the binding force of the Strasbourg Court’s case law. It then discusses key issues concerning minorities and vulnerable groups in France, which have given birth to an important body of case law in Strasbourg regarding the protection of foreigners, religious minorities, equality and non-discrimination, as well as the protection of ‘non-majoritarian’ views (part II). Subsequently, this paper focuses on litigation trends in the European Court of Human Rights in these different fields (part III) and gives an account of Strasbourg’s jurisprudence.

2. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship The status of the ECHR in the French legal order and its direct effect are not controversial. In accordance with the monist tradition, upon ratification, the ECHR was automatically integrated in the French legal order. Whereas it has prevailed over statutory law pursuant to Article 55 of the Constitution,11 the Supreme Administrative Court (Conseil d’Etat – Council of State) and the 10

11

Information obtained from the ECHR Annual survey of activities, 2005 (http:/www.echr. coe.int). Article 55 of the Constitution states that ‘Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party’.

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Supreme Civil Court (Cour de cassation – Court of Cassation) have ruled that the ECHR could not take precedence over the Constitution.12 The jurisprudence of the Constitutional Council (Conseil Constitutionnel) is more qualified, as a delicate distinction is made between essential constitutional norms pertaining to the principle of sovereignty, which prevail over international law, and other constitutional provisions which could be superseded by the latter.13 Conversely, some authors have called for an ‘absolute superior status’ of international law, including the ECHR, over domestic law. This is in line with the case law of the European Court of Human Rights, which considered a piece of legislation that the French Constitutional Council had previously validated as complying with the Constitution, to be in breach of the Convention.14 Besides the supremacy of the ECHR upon statutory law, administrative and civil judges recognise its direct application.15 Any court is entitled to apply the Convention even contra legem (i.e. against the legislation in force or contrary to any administrative or judicial practice) and can hold the French state liable for a violation of the Convention. This derives from a 2007 revolutionary ruling, the Gardedieu case, where the Council of State for the first time explicitly decided that the mere adoption of a statute contrary to an international convention is per se illicit and that the state can be held accountable for pecuniary damage on this basis.16 Turning to judicial control mechanisms to protect human rights in France, submissions for a legal settlement can either be made at the level of constitutional justice, namely the Constitutional Council, or in ‘ordinary’ jurisdictions supervised by two supreme courts, i.e. the Court of Cassation for civil and criminal courts and the Council of State for administrative courts. Following a 1975 decision of the Constitutional Council,17 ordinary judges are empowered to set aside legislation which is incompatible with international treaties and

12

13

14

15

16

17

CE Ass., 30 October 1998, Sarran, Levacher et Alii, Rec. Lebon, p. 368 ; Cass. Ass. pl., 2 June 2000, Fraisse, Bull. no. 4. As pointed out by F. Hamon and M. Troper after the Constitutional Council ruling in the Reseda case (5 May 1998, no. 98–399 DC), in Droit constitutionnel (Paris: LGDJ, 2003), p. 701. See, for instance, ECtHR (GC), Zielinski and Others v. France (nos. 24846/94; 34165/96; 34173/96), 28 October 1999. Cf., G. Cohen-Jonathan, preface to F. Lazaud, L’exécution par la France des arrêts de la Cour européenne des droits de l’homme (Presses Universitaires d’AixMarseille, 2006), p. 11. For the administrative courts, see CE, 27 October 1978, Debout, Rec. Lebon, p. 395; for the judicial courts, see Cass. Civ. I, 18 May 1989, Bull. no. 198. CE Ass., 8 February 2007 (no. 279522), Revue Française de Droit Administratif (2007), 361 with the observations of L. Derepas. CC, 15 January 1975 (no. 74–54 DC), Interruption volontaire de grossesse (IVG).

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can therefore efficiently defend the primacy of the ECHR.18 As to constitutional justice, it should be kept in mind that the French Constitutional Council (Conseil Constitutionel) is not a constitutional court modelled upon its wellknown German or Spanish counterparts. The Constitutional Council used to review statutes only in abstract, prior to their entry into force and, until recently, individuals had no right to ask for a scrutiny of a legislative act.19 Nevertheless, its narrow mandate did not prevent it from becoming an original and often effective human rights guardian. While it traditionally refused to exercise an explicit control of the conformity of legislative acts with the ECHR, for years it did so in a discreet manner.20 The institutional reform adopted in July 200821 substantially changed its mandate. Faced with a legislative provision in breach of the rights and freedoms enshrined in the Constitution, any court, under the supervision of the Council of State and the Court of Cassation, which act as filters in the procedure, is entitled to bring a referral for a preliminary ruling before the Constitutional Council.22 The practical influence of this reform remains to be seen, namely whether ordinary courts will favour the new system over the less centralised one developed in the mid 1970s. Under the latter, ordinary courts were empowered to set aside legislative provisions contrary to human rights enshrined in the ECHR or other international conventions.23 As far as the binding force of the Strasbourg Court case law is concerned, especially as regards compliance by France to judgments issued against other

18

19

20

21

22 23

As to the first exercise of such a prerogative, see Cass. Ch. Mixte, 24 May 1975, Café Jacques Vabre, Bull. no. 4 (for EC law); Cass. Crim., 27 November 1966, Commandos anti-IVG, Bull. no. 431(for the ECHR); CE Ass., 20 October 1989, Nicolo, Rec. Lebon, 190 (for EC law); CE. Ass., 21 December 1990, Confédération nationale des associations familiales catholiques et autres, Rec. Lebon, 369 (for the ECHR). Traditionally, only the President of the Republic, the Prime Minister, the President of the Senate, the President of the Congress, and deputies and senators had a direct access to the Constitutional Council. L. Burgorgue-Larsen, ‘L’autonomie constitutionnelle aux prises avec la Convention européenne des droits de l’homme’, Revue belge de droit constitutionnel 1 (2001), 62. For recent developments, see E. Bribosia, ‘Dialogue entre la Cour européenne des droits de l’homme et les cours nationales: regards croisés. Un dialogue sous l’influence des terreaux juridiques nationaux’, in Bribosia, Scheeck and Úbeda de Torres (eds.), L’Europe des cours. Loyauté et résistances (Bruxelles: Bruylant, 2009), in press, section B.1.b. Loi constitutionnelle de modernisation des institutions de la Vème République [Constitutional Act modernising the institutions of the Vth Republic], 23 July 2008 (no. 2008–724), JO, 24 July 2008. Article 61(1) of the Constitution. E. Bribosia, ‘Un dialogue sous l’influence des terreaux juridiques nationaux’, in press, section B.1.b.

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countries, the judicial attitude has changed over time. In short, it has evolved from ‘neutralising interpretation’ (or national resistance) towards ‘casual conformity’ and more recently, ‘constructive interpretation’.24 Condemnations do not seem therefore to be necessary to change a former practice in France, as there exists an a piori influence of the Strasbourg Court’s case law and the development of a preventive approach by national judicial authorities at least in specific areas. The European Court’s decisions and judgments have become in these cases a source of direct guidance, preventing new violations, for instance in relation to the recognition of welfare rights. There are several recent examples of this preventive effect of ECtHR case law. In the Koua Poirrez case,25 the interaction between French domestic courts and the ECtHR went very far. The Court of Cassation, which had denied Mr Poirrez his right to a social allowance on account of his foreign nationality,26 modified its case law dramatically only one year after its first ruling. In a case concerning a Turkish national who had been denied a non contributive allowance, the Court of Cassation declared motum propium a violation of Article 14 ECHR (prohibition of discrimination) combined with Article 1 of Protocol no. 1 to the Convention (property).27 This was a ground-breaking judgment; the French Court of Cassation extended the right to a non contributive allowance in 1999, before any condemnation was issued by the Court of Strasbourg and even before the European Court had decided on this right at that time yet. The ECtHR quoted this domestic judgment in order to sustain its arguments in the Koua Poirrez case, producing a ‘boomerang effect’ and getting inspiration from national case law.28 As part of this evolution, in 2004, the Constitutional Council, traditionally the most reluctant of all French courts towards Strasbourg jurisprudence, expressis verbis referred to a European judgment in order to reinforce its stance: the famous Leyla Sahin v. Turkey case.29 However, it critically ‘adapted’

24

25 26 27 28

29

F. Sudre, ‘A propos du dialogue des juges et du contrôle de conventionnalité’, Etudes en l’honneur de Jean-Claude Gautron. Les dynamiques du droit européen en début du siècle (Paris: Pedone, 2004), pp. 207–224. Cf. L. Burgorgue-Larsen, ‘La France et la protection européenne des droits de l’homme’, AFRI (2005), 609. ECtHR, Koua Poirrez v. France (no. 40892/98), 30 September 2003. Cass. Soc., 22 January 1998, Koua Poirrez, JCP G (1998), II, 1011. Cass. Soc., 14 January 1999, Bozkurt, JCP (1999), II, 10082. Ph. Frumer: ‘La discrimination à l’égard des étrangers en matière de prestations sociales (arrêt Koua Poirrez du 30 septembre 2003)’, in CREDHO, La France et la Cour européenne des droits de l’homme. La jurisprudence en 2003 (Brussels: Bruylant, 2005), p. 166. CC, 19 November 2004 (no. 505–2004 DC), Traité établissant une Constitution pour l’Europe. The Conseil Constitutionnel refers to the Chamber’s ruling in Leyla Sahin v. Turkey (no. 44774/98, 29 June 2004) which was not definitive as it was pending before the Grand Chamber at the time (Cf. Burgorgue-Larsen, ‘La France et la protection européenne’, 610–11).

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the ruling to the French context, so as to indirectly manifest its approval of domestic legislation forbidding students from wearing any conspicuous religious symbols at school.30 The Constitutional Council had not had the opportunity to pronounce itself on the issue. In fact, it referred to the European Court’s Chamber judgment Leyla Sahin while deciding on the compatibility of the French Constitution with the Treaty establishing a Constitution for Europe. More than an admission of the authoritative force of Strasbourg jurisprudence, the major purpose of its reference to the Leyla Sahin case appears to have been a reinforcement of the French secularisation principle. This makes it possible to argue that despite a growing ‘positive attitude’, resistance towards the European Court’s case law may still arise when French legal tradition or sensitive political issues are at stake.31 In such cases, persistent condemnations remain necessary for reforms to be made. As to litigation against France before the Strasbourg Court concerning minorities and vulnerable groups, one of the main controversial fields relates to the protection of foreigners and the growing concerns stemming from the adoption of new legislation to ensure national security and fight against terrorism.32 Another set of complaints concern religious minorities, which are strongly framed by one of the French Republic’s founding principles: laicism

30

31

32

Loi encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics, 15 March 2004 (n° 2004–228) JO, 17 March 2004. Let’s recall the controversial Kress case (ECtHR, Kress v. France (no. 39594/98), 7 June 2001), in which the participation of an advocate general (commissaire du gouvernement) during the deliberation of the Council of State was considered to be in breach of the principle of impartiality and equality of parties, enshrined in Article 6 of the ECHR. The Council of State criticised the excessive formalism required by the ECtHR and implementation of the ECtHR judgment was extremely difficult. The solution which was eventually found was to allow a party to oppose the advocate general’s presence in deliberations. This arguably reconciles the Court’s theory of objective impartiality with the French legal tradition. See H. Tigroudja, ‘Les difficultés d’exécution de l’arrêt de la Cour européenne des droits de l’homme du 7 juin 2001 rendu dans l’affaire Kress c. la France’, RTDH 58 (2004), 353. Following this judgment, the President of the Council of State issued two guidelines on 23 November 2001 and 13 November 2002 establishing that the advocate general (commissaire du gouvernement) could attend but not participate in the deliberations (‘mute witness’). Legislation was adopted in this sense (Administrative Justice, Article R. 731–7). The Secretariat of the Committee of Ministers considered, however, that this was not a correct implementation of the Kress case (CM/Inf(2003)15E, 31 March 2003). In the Grand Chamber decision Martinie v. France, France was again condemned on the basis that any passive or active participation of the commissaire du gouvernement in the deliberations is infringing Article 6 of the ECHR (no. 58675/00, 12 April 2006). See infra, paragraph 3.

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(laïcité).33 Secularisation being interpreted as a principle very close to active neutrality or ‘neutralité à la française’,34 has specific implications for believers. The Act on separation of the State and the Churches of 9 December 190535 enounces the principle of separation. It means that the French Republic does not ‘recognise, pay or give any kind of financial aid to any religion’ (Article 2), and determines the double nature of the principle of secularisation in recruitment and in the services provided.36 The impact of constraints resulting from secularisation on Muslims and other religious individuals and groups has been pointed out in the social and political science literature.37 It has been highlighted that, in a fundamentally secular public space, it is more difficult for religious groups and minorities to preserve their identities and culture. The lack of visibility of religious groups in institutional space and the lack of associative structures might explain the low scale of litigation concerning religious minorities in France.38 The principle of ‘neutrality’ also requires the absence of religious symbols in some public spaces (i.e. schools, justice chambers, etc). The controversial Act on Secularisation and Religious Symbols, better known as the ‘Islamic veil Act’ or the ‘Stasi Act’ (named after the former Republic Mediator), forbids any kind of external manifestation of religion in public schools, a measure mainly addressed to students. Professors also need to comply with neutrality requirements generally imposed on public administration.39 A second set of issues regards the scope of protection granted to freedom of expression, which is a traditional right deeply embedded in French legal culture. Recognised in Article 11 of the 1789 Declaration, the freedom of expression is a multifaceted right. The freedom of the press was not expressly and widely protected in France before the Act of 29 July 1881. Since then, any written publication is protected against censorship and ‘opinion crimes’ have

33

34 35 36

37 38

39

See M. De Salvia, ‘Liberté de religion, esprit de tolérance et laïcité dans la jurisprudence de la Cour européenne des droits de l’homme’, in Libertés, justice, tolérance. Mélanges en hommage au Doyen Gérard Cohen-Jonathan, vol. I (Brussels: Bruylant, 2004), pp. 591–606 ; J.-F. Flauss, ‘La Commission européenne des droits de l’homme au secours de la laïcité de l’enseignement public, l’affaire Karaduman c. Turquie’, Les Petites Affiches 142 (1993), 11–13. J. Morange, Droits de l’homme et libertés publiques, 5th edition (Paris: PUF, 2000), p. 207. Loi de séparation des Eglises et de l’Etat, JO, 11 December 1905. Forbidding the refusal of candidates because of their religious beliefs or the excessive externalisation of such beliefs. O. Roy, La laïcité face à l’Islam (Paris: Seuil, 2005). V. Amiraux, ‘Speaking as a Muslim: avoiding religion in French Public Space’, in Amiraux and Jonker (eds.), Politics of Visibility. Young Muslims in European Public Spaces (Bielefeld: Transcript Verlag, 2006), pp. 21–52. Act of 15 March 2004 (n° 2004–228), referred to in footnote 30.

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disappeared.40 Only civil judges are competent to stop a posteriori the publication of a book or a newspaper based on a complaint. However, two types of publications have traditionally faced restrictions: foreign publications and publications for minors. Concerning the ban on foreign publications, France was condemned in Ekin41 and changed its legislation subsequently, attracting the attention of many legal scholars.42 On 1 July 1972, with the so-called loi Pleven,43 provocation of hate and discrimination, slander and racial insults were criminalised. On 13 July 1990, the National Assembly adopted another piece of legislation, the loi Gayssot,44 designed to punish any racist, anti-Semite or xenophobe activity’. Aimed to punish those challenging the Second World War genocide against Jews, the law amended the 29 July 1881 Act on the freedom of the press and the criminal code.45 The fight against the denial of the holocaust in France has led to important case law before the Strasbourg Court concerning the limits to freedom of expression, changing dramatically the jurisprudence of the Court of Cassation.

40

41 42

43 44

45

However, in case of slander, journalists must ‘apologise’ and publish the corrected information stated by the courts as part of the sanction; in cases of attempt to private life, aggravated sanctions could even be decided. ECtHR, Ekin v. France (no. 39288/98), 17 July 2001. Professor Wachsmann has systematically studied revisionism and anti-semitic speech in many contributions, shaping the limits to freedom of expression. This author adheres to the doctrine of ‘militant democracy’ or ‘democracy able to defend itself ’, which the ECtHR has welcomed. See inter alia, ‘Liberté d’expression et négationnisme’, RTDH (2001), 585; ‘La jurisprudence récente de la commission européenne des droits de l’homme en matière de négationnisme’, in Flauss and De Salvia (dir.), La CEDH: développements récents et nouveau défis, (Brussels: Bruylant, 1997), pp. 101 and ff. Other authors have also dealt with this issue, such as G. Cohen-Jonathan, ‘Négationnisme et droits de l’homme’, RTDH (1997), 571 and ff.; M. Levinet, ‘La fermeté bienvenue de la Cour européenne des droits de l’homme face au négationnisme: obs. s/la décision du 24 juin 2003, Garaudy c. France’, RTDH 59 (2004), 653; D. Roets, ‘Epilogue européen dans l’affaire Garaudy : les droits de l’Homme à l’épreuve du négationnisme’, Le Dalloz 4 (2004), commentaires, 239 or F. Massias, ‘La liberté d’expression et le discours raciste ou révisionniste’, RTDH (1993), 183. Act against racism (Loi relative à la lutte contre le racisme, no. 72–545). Loi tendant à réprimer tout acte raciste, antisémite ou xénophobe (no. 90–615). See M. Troper, ‘La loi Gayssot et la Constitution’, Annales, Histoire, Sciences Sociales, 54 (1999), no. 6, 1239. Against this Act, see J.-P. Feldman, ‘Peut-on dire impunément n’importe quoi sur la Shoah ? (De l’article 24bis de la loi du 29 juillet 1881)’, Revue de droit international et de droit comparé, 75(4) (1998), 229. The Article 24bis of the criminal code qualifies as an offence the challenge of one or several crimes against humanity as defined in Article 6 of the Statute of the international military Court annexed to the London agreement of 8 August 1945. These crimes have to be committed either by members of an organisation declared criminal by this Statute or by a person judged guilty by this military Court.

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As to the principle of equality and non-discrimination, recognised in the French Declaration46 and developed through statutory law, EU law has had a strong influence on the provisions enacted. However, the implementation of the principle encounters serious obstacles stemming from French reluctance regarding the recognition of the concept of minorities.47 For French authorities, the concept of minority contradicts the ‘national republican model’ and the indivisibility of the nation (Article 2 of the Constitution), in which ‘minorities, religions and cultural particularities of any kind are not acceptable in the public space’.48 France has refused to ratify the Framework Convention on the protection of minorities, as well as Protocol no. 12 to the ECHR. Two of the supreme judicial bodies, the French Council of State and the Constitutional Council, have actually positioned themselves against the ratification of any instrument recognising groups, which can be identified on the basis of race, religion, sex or other criteria. In the domestic case law the constitutional force of the legal concept of the ‘French people’, as opposed to the recognition of ‘other’ people, has been established.49 The Council of Europe has often stressed the importance of ratifying the instruments mentioned above,50 taking into account the particularities of the French societal context

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Article 1: ‘Men are born and remain free and equal in rights. Social distinctions may be based only upon the general good’ [Les hommes naissent et demeurent libres et égaux en droit. Les distinctions sociales ne peuvent être fondées que sur l’utilité commune]. Professor F. Benoit-Rohmer is one of the main experts on the topic of ethnic and religious minorities: see, inter alia, Les minorités, quels droits? (Strasbourg: éd. du Conseil de l’Europe, 1999); ‘La Cour européenne des droits de l’homme et la défense des droits des minorités nationales’, RTDH (2002), 563; ‘La Cour de Strasbourg et la protection de l’intérêt minoritaire: une avancée décisive sur le plan des principes ? En marge de l’arrêt Chapman c. RU’, RTDH (2001), 999. This is, for instance, sustained by the President of the National Assembly, Jean-Louis Debré, as pointed out by Mr Wieviorka, ‘Le modèle néorépublicain’, article published in the newspaper Libération, 13 November 2006, p. 31. CE, 24 September 1996, Opinion on France’s ratification of the European Charter of Regional or Minority Languages; CE, 6 July 1995, Opinion on the ratification of the Framework Convention for the Protection of National Minorities; CC, 9 May 1991 (no. 91–290 DC), Law establishing the territorial community of Corsica. As pointed out by the report issued by Mr Boriss Cilevičs, see Working document of the Parliamentary Assembly of the Council of Europe (COE) on Ratification of the Framework Convention for the Protection of National Minorities by the Member States of the Council of Europe, 12 June 2006, §§ 16 and ff. The Working document led to the adoption of Recommendation 1766 (2006) on 4 October 2006 by the Parliamentary Assembly, which reminded of its recommendations 1492 (2001) and 1623 (2003). The Commissioner for Human Rights, Alvaro Gil Robles, also pointed out the lack of ratification of these instruments in his rapport

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and the existence of different religious groups in the country. The recognition of an official minority status could sustain better integration policies and, at the same time, ensure full respect for French Republican legal and political tradition.51 In spite of this, there has been no major change in position. In fact, the Senate has demonstrated reluctance regarding a recent EU proposal for a directive implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation.52 The senator in charge of the report, Mrs Muguette Dini, stated that the legal recognition of specific communities with their own rights would contradict ‘the French conception of the Republic, which establishes that every citizen has the same legal rights’.53

3. Litigation in the ECtHR on Claims Raising Articles 8-11/14 ECHR as well as Claims Involving Minorities and Immigrants Besides the lack of acceptance of a legal conception of minorities in France, there is another factor that contributes to limiting litigation both in national courts and in the Strasbourg Court. Most non-governmental organisations (NGOs) and activist groups are reluctant to have recourse to legal means to fight against exclusion. They consider the media and political lobbying to be much more effective. While the use of judicial complaints as a way of achieving political change is a well-developed method in common law culture, it is unfamiliar to French legal tradition. Moreover, the left-wing political orientation that is widespread among associations and activists since 1960 and 1970, considers legal and judicial routes to address violations of human rights as a way of showing acceptance towards the State. They were therefore despised in the past. Associations like the Human Rights League (Ligue des droits de

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on the effective protection of Human Rights in France, made public on 15 February 2006 after his visit on the French territory from 5 to 21 September 2005. A. Nanchi, Vers un statut des minorités en droit constitutionnel français (Clermont-Ferrand: Presses Universitaires de la Faculté de Clermont-Ferrand, 2006). Proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, 2 July 2008, COM(2008) 426 final. Draft resolution on the Proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (E 3918), Report, 30 October 2008.

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l’homme) and Amnesty International, but also workers’ unions usually favour political over legal tactics.54 Therefore, it is not surprising that a very high percentage of the complaints filed against France before the Strasbourg Court derives from individuals acting alone. Such perceptions are challenged today and this trend slowly changes with transnational associations pleading cases across countries and national civil society organisations challenging legislation before the judiciary, either at the national level or in the Strasbourg Court. In the case of France, such an evolution is particularly discernible concerning several vulnerable groups: foreigners, individuals discriminated because of their sex or sexual orientation, religious minorities and individuals supporting views that the majority strongly disagrees with. Claims made by foreigners are usually based on Articles 3 (prohibition of torture) and 8 (privacy) of the Convention and involve cases of expulsion. They have also been raised in relation to other rights of the ECHR, such as Articles 5 (liberty), 6 (fair trial) ECHR or Article 1 of Protocol no. 1 (property) to the Convention.55 At the national level, associations dedicated to the defence of foreigners’ and asylum seekers’ rights, such as the CIMADE (Ecumenical Service of Mutual Aid – Service oecuménique d’entraide) and the Human Rights League have pointed out the progressive jurisdictionalisation of complaints raised by foreigners in France. Recent legislative evolution has given birth to longer and more complicated judicial proceedings in this respect. Civil society associations often feel overloaded by the numerous complaints brought to their attention and their capacity of reaction is reduced due to budgetary limitations. The CIMADE, for instance, has had to successfully develop a leading role in assisting foreigners with regard to national authorities without having the tools or the means to represent their interests in court. To tackle the issue, it has made an agreement with some law firms to provide them with the legal files of the complaints raised by foreigners and asylum seekers, the CIMADE remaining responsible for the ‘legal follow-up’ of the cases. In Strasbourg, the CIMADE has never pleaded in its own name, but its lawyers have represented applicants and filed complaints.56 54

55 56

The French High Authority against Discrimination and for Equality (Haute Autorité de lutte contre les discriminations et pour l’égalité – HALDE) points out that only 3% of the applications it receives are introduced by associations. See the Koua Poirrez ruling cited previously (in footnote 25 and ff.). See, e.g., ECtHR, Skender Fiqaj and Others v. France (inadmissibility dec., no. 53491/99), 6 April 2000; Bamba v. France (admissibility dec., no. 30930/96), 8 September 1997; A.B. v. France (dec. striking the case out of the list, no. 34795/97), 18 September 1997; Djamel Lounis v. France (inadmissibility dec., no. 49137/99), 25 April 2002. Most of the decisions declared the inadmissibility of the case or struck it out of the list, so the CIMADE is rarely mentioned in final judgments.

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There are also a few examples of collective applications in which associations and NGOs, acting as co-applicants, claimed, in the 1980s and the 1990s, to be victims in cases pertaining to foreigners and asylum seekers. For instance, in Elio Campopiano and other v. France,57 the GISTI (Group dedicated to the information and support to immigrants – Groupe d’information et de soutien des immigrés)58 alleged that the expulsion and actions against the applicant harmed its collective interest in the defence and assistance of immigrants. All applications in which associations claimed the status of a victim were declared inadmissible by the former European Commission. In the light of Article 34 of the ECHR (individual applications), the Court similarly refused to recognise associations supporting applicants as proper applicants.59 The negative outcome of these cases partly proved to be a deterrent for these associations to pursue litigation before the ECtHR. Recent developments in litigation strategies should nonetheless be mentioned. Since May 2007, the requests for interim measures before the Strasbourg Court have ‘exploded’. Whereas, in 2006, almost 90% of those requests were rejected, in 2007 and 2008 this percentage has been reduced to 70%. Strategic litigation before Strasbourg seems to flourish in this area, with several organisations pleading at the European level. The CIMADE and the ANAFE (National association for border assistance to foreigners – Association nationale d’assistance aux frontières pour les étrangers), which are allowed to intervene at the borders and in detention centres for foreigners, play a central role in the process. They have created a sort of ‘alert mechanism’, providing legal assistance to foreigners and asylum seekers under the threat of expulsion, so that urgent measures can be sought from Strasbourg.60 The 57 58

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EComHR, Campopiano and other v. France (no. 18336/91), 5 May 1993. This association considers law as its main tool. It supports and gives legal aid to foreigners and asylum seekers in domestic jurisdictions or in Strasbourg when appropriate. See, e.g., ECtHR, Michele Dayras and Others v. France, in which the NGO Sos Sexisme claimed to be a victim of discrimination under Articles 8 and 14 of the ECHR because of the preference given to the father’s surname over the mother’s (inadmissibility dec. no. 65390/01, 6 January 2005). In A.B. and G.I.A. v. France, the GIA (Groupe d’Information Asiles), a NGO specialised in legal aid for individuals detained in hospitals and psychiatric centres, was not considered to be a victim of illegal detention. However, it also complained about a breach of Article 6 ECHR, alleging that it was not possible too meet with the first applicant, interned in a psychiatric hospital (inadmissibility dec. no. 28660/95, 20 May 1998). With respect to the same NGO, similar arguments have been advanced in G. and M.L. and GIA v. France (EComHR, no. 17734/91, 29 June 1994). The GIA acted as an amicus curiae in Nouhaud and Others v. France (no. 33424/96, 9 July 2002). Some cases in which the CIMADE intervened or acted on behalf of the applicants in front of domestic courts reached Strasbourg, even if this NGO was not directly involved before the ECtHR. See, e.g., the Amuur case (no. 19776/92, 25 June 1996) which relates to the conditions

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development of this kind of actions only aims at avoiding immediate expulsion and presents some limitations, mainly concerning the support to the applicants during the years it usually takes to decide on the merits of their case. Third party interventions or amicus curiae before the Strasbourg Court remain limited. The role of ANAFE in the Asebeha Gebremedhin [Gaberamadhiam] case is an emblematic example in this respect.61 In its judgment of 26 April 2007, the Court declared, for the first time, that France had violated Article 13 (effective remedy) in relation to Article 3 (prohibition of torture) ECHR, prompting legislative reform. Rights International and Amnesty International intervened with the submission of written observations in H.L.R. v. France, a case concerning a Colombian applicant accused of drug trafficking, but the Court found no violation of Article 3 of the ECHR. The GISTI intervened in the Hussun case,62 which relates to the collective expulsion of foreigners arriving to Lampedusa. Finally, in the Siliadin case concerning forced work of a Togolese national,63 although there has been no proper third party intervention, the applicant’s counsel was assisted in the Court by a lawyer from the Committee against Modern Slavery, an NGO offering legal support to victims of modern slavery. A second category of vulnerable groups filing complaints before the Strasbourg Court consists of individuals claiming discrimination based on their gender or sexual orientation. They usually invoke a breach of Article 8 of the Convention (privacy), either alone or in combination with Article 14 of the ECHR (prohibition of discrimination). Strategic litigation seems to have flourished recently in this area under the influence of transnational associations dealing with the rights of gays and lesbians. The first example is case Fretté v. France,64 in which the Court ruled that the refusal to give the right to adopt to a single person because of his homosexuality was not in violation of Article 8 of the ECHR. The International Lesbian and Gay Association, European Region (ILGA-Europe) acted on that occasion as an amicus curiae.65

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of detention and deprivation of liberty of asylum seekers in the international area of an airport and where France was condemned on the basis of Article 5 of the ECHR). ECtHR, Asebeha Gebremedhin [Gaberamadhiam] v. France (no. 25389/05), 29 April 1997. See infra, paragraph 4, for the details of the case. ECtHR, Hussun and Others v. Italy (no. 10171/05), 11 May 2006. ECtHR, Siliadin v. France (no. 73316/01), 26/07/2005. See infra, paragraph 4, for the details of the case. No. 36515/97, 26 February 2002. Although only in the admissibility decision issued by the Court on 12 June 2001.

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The same association presented written observations together with three other associations66 in E.B. v. France,67 in which the Grand Chamber of the Strasbourg Court overruled its precedent in Fretté. Third parties presented a comparative law study on adoption by homosexuals, as well as recent legislative modifications in this area by several member states. Two different types of complaints fall within a third category of ‘vulnerable’ individuals pleading in the Strasbourg Court. A first set of complaints is put forward by individuals, belonging to religious minorities and being legally banned from wearing conspicuous symbols in specific situations. Strategic litigation, primarily based on Articles 8 (privacy), 9 (freedom of religion) and Article 14 (prohibition of discrimination) of the ECHR, has recently emerged in this area. The Sikh community, with the support of the United Sikhs Association, has for instance filed several complaints at the national level, and two before the ECtHR: one regarding the ban to wear the turban at school,68 the other concerning the right to wear the turban in photographs for official use.69 Some Muslims have also challenged French legislation at the domestic level and in the Strasbourg Court, yet their complaints were unsuccessful.70 Up to now, the Strasbourg Court has never condemned France for violating the freedom of thought or religion. The second set of complaints relates to individuals supporting views which are not ‘majoritarian’ and which have contributed to shape the domestic protection of freedom of expression. France was condemned several times in this respect and these cases have been of paramount importance to define the scope of domestic judicial power to restrict freedom of expression in a democratic society.71

66

67 68

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The FIDH (International Federation of Human Rights Leagues – Fédération Internationale des ligues des Droits de l’Homme), the BAAF (British Agencies for Adoption and Fostering) and the APGL (Association of Gay and Lesbians’ Parents and future Parents – Association des Parents et futurs parents Gays et Lesbiens). No. 43546/02, 22 January 2008. On 30 May 2008, Jasvir Singh and Ranjit Singh filed a complaint before the ECtHR, with the support of the United Sikhs Association, against their expulsion from Michel High School in Bobigny (Paris region) for wearing a keski. Their expulsion was based on the ‘Stasi Act’ of 15 March 2004 (n° 2004–228) referred to in footnote 30. On 11 June 2007, Mr. Mann Singh introduced a complaint before the ECtHR, with the support of the United Sikhs Association, challenging a ministry order issued on 6 December 2005 (circulaire no. 2005–80), which bans the use of any headscarf or turban on the picture required for a driving license (no. 24479/07). The Court has declared his application inadmissible (inadmissibilidity dec. no. 24479/07, 13 November 2008). See infra, paragraph 4. See infra, paragraph 4.

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4. ECtHR Jurisprudence in the Cases Under Review The number of complaints lodged against France has been growing steadily, although, in recent years, the rate of growth has decreased. Between the first judgment issued in 198472 and until 2008, over 700 judgments have been delivered against France. France remains one of the states with the highest number of filed complaints, and most of the judgments against it concern the right to a fair trial (Article 6 ECHR). From the total number of judgments, seventy pertain to vulnerable groups and minorities. The majority of the Court’s rulings concern the right to private and family life (Article 8 ECHR) in cases regarding the procedures of expulsion of foreigners and the rights of individuals belonging to sexual minorities. Private life case law is much more extensive than cases regarding freedom of expression, freedom of religion or freedom of association. Claims under Articles 8 to 11 of the Convention, occasionally combined with Article 14 ECHR (prohibition of discrimination), represent around 10% of the total number of applications lodged. Nevertheless, in cases pertaining to minorities or vulnerable groups, other Convention provisions are also invoked: Articles 3 (prohibition of torture), 4 (prohibition of slavery), 5 (liberty), 6 (fair trial) or 13 (effective remedy) of the ECHR. Four main fields of case law can be generally identified as cases implicating vulnerable individuals and minorities: cases raising foreigners’ issues; cases dealing with sexual orientation and transgender issues; cases stemming from religious groups; and cases about political minority views and their freedom of expression in a democratic state. Concerning the case law on the rights of foreigners, there are several areas of litigation which should be highlighted. Most of the jurisprudence relates to expulsion cases, involving the right to private and family life (Article 8 ECHR), the prohibition of inhuman and degrading treatment (Article 3 ECHR),73 detention conditions before expulsion (Article 5 ECHR)74 and procedural guarantees.75 In the Gebremedhin case the strong security and administrative measures adopted in France have been denounced.76 In the last years, there

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ECtHR, Bozano v. France (no. 9990/82), 15 May 1984. B. B. v. France was struck out of the list because the government did not expel the applicant. Otherwise there would have been a potential violation of Article 3 of the ECHR, as the applicant was suffering from AIDS and could not receive equivalent medical attention in his country of origin (ECtHR, no. 30930/96, 9 September 1998). As in the Amuur case cited supra on detention conditions of an asylum seeker in the international airport area (no. 19776/92, 25 June 1996). See, for exemple, Maaouia v. France, concerning the excessive length of an expulsion procedure (ECtHR (GC), no. 39652/98, 5 October 2000). ECtHR, Asebeha Gebremedhin [Gaberamadhiam] v. France (no. 25389/05), 29 April 1997.

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had been a drop of 50% of asylum applications, much more restrictive summary procedures to claim asylum, the lack of suspensive effect of judicial remedies and bad practices of state agents concerning asylum seekers. The applicant alleged the breach of the non refoulement principle and lack of an appropriate remedy. The Court’s condemnation prompted legislative changes concerning access to justice and to file asylum requests for the foreign population arriving in the country. Other complaints in the Strasbourg Court stemmed from foreigners residing on the French territory: European citizens77 or third-country nationals. Complaints by third-country nationals concerned inter alia torture and police brutality suffered by a Moroccan national,78 racist considerations of a member of the jury in a criminal case against a French citizen of foreign origin79 and discriminatory treatment on the basis of nationality in relation to the grant of social allowances.80 Finally, the Siliadin case81 raised the issue of exploitation of illegal foreigners. The applicant had served in a house for years with no salary, under the threat of denouncement and consequent expulsion of the French territory. Although the tort was committed by individuals, the Court applied the Convention’s ‘horizontal effect’. It ruled that there was not enough protection in French law against this type of behaviour and condemned France for ‘modern slavery’ under Article 4 of the Convention. Although there are few cases concerning gender and sexual-orientation in the Strasbourg Court, these have given birth to key changes in France. Applications in this field have been carefully designed. Most of them have been lodged by foreign or transnational associations acting on behalf of gay and lesbian associations. The cases Fretté82 and E.B.83 previously mentioned certainly follow this pattern. In the Fretté case, the European Court stated that there was no European consensus on the issue of adoption rights for homosexuals and granted a wide margin of appreciation to French national authorities. No breach of Article 8 of the ECHR (privacy) was found. This however did not prevent gays and lesbians associations from pursuing litigation in Strasbourg. A judicial reversal occurred six years later in the E.B. case. The Court’s Grand Chamber held that, in the light of French legislation permitting adoption by single individuals, any reference to sexual orientation was

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ECtHR, Aristimuño Mendizabal v. France (no. 51431/99), 17 January 2006. ECtHR (GC) Selmouni v. France (no. 25803/94), 28 July 1999. ECtHR, Remli (no. 16839/90), 23 April 1996 (Article 6 ECHR). ECtHR, Koua Poirrez v. France (no. 40892/98), 30 September 2003. ECtHR, Siliadin v. France (no. 73316/01), 26 July 2005. ECtHR, Fretté v. France (no. 36515/97), 26 February 2002. No. 43546/02, 22 January 2008.

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contrary to Article 8 of the ECHR (privacy) combined with Article 14 (prohibition of discrimination). B v. France84 dealt with transsexuals’ civil status. The issue at stake was the recognition of the new identity of a transgender person. Although this case served to modify the civil Supreme Court’s jurisprudence concerning the recognition of the civil status of transsexuals, the applicant did not benefit from such a reversal in case law. The principle of res judicata prevented the reopening of proceedings, and the final decision remained unchallenged. The change in the domestic judicial practice triggered by this case permitted, nevertheless, a legal recognition of a new civil status for transgender individuals in France. In this respect, the Strasbourg Court issued a kind of ‘pilot’ case, as it had consequences for all transsexuals living in France by putting an end to the denial of the recognition of their new legal identity. As previously emphasised, the limited number of cases on freedom of religion does not seem to be the result of a lack of problematic cases regarding religious groups in France.85 Weak litigation has not precluded a few cases relating to freedom of thought to reach the Strasbourg’s system. Before December 2008,86 only two of those cases led to an ECtHR judgment on the merits and none of them ended with a condemnation of French domestic behaviour. Nevertheless, they both had a special weight either from a political or a historical perspective. In Cha’are Shalom Ve Tsedek v. France,87 the Court dealt with the question of rituals. In France, as in many other European countries, the ritual of slaughter exercised by Jews and Muslims comes into conflict with the principle according to which an animal can be slaughtered after being stunned, that is plunged into a state of unconsciousness in order to spare it any suffering. Ritual slaughter is nevertheless authorised under French law. The applicant association came into being as a minority movement, which split away from the Jewish Central Consistory of Paris and applied a strict orthodox conception of religion. According to the applicant association, the ritual slaughterers under the authority of the rabbinical court of the ‘ACIP’, the only body officially authorised to practice these rituals, no longer complied with the very strict requirements of the Jewish religion. The applicant association submitted that it was therefore obliged, in order to be able to make ‘glatt’ kosher meat available to its 84 85 86

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No. 13343/87, 25 March 1992. Amiraux, ‘Speaking as a Muslim’, p. 34 and ff. On 4 December 2008, the ECtHR issued two judgments relating to the wearing of religious symbols at school, Dogru v. France and Kervanci v. France (ECtHR (no. 27058/05) (no. 31645/04) 4 December 2008). No. 27417/95, 27 June 2000.

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adherents, to slaughter illegally and to obtain supplies from Belgium. In this controversial ruling, no breach of Article 14 ECHR (prohibition of discrimination) was considered. The Court also dissented from the European Commission88 and decided that there was no violation of Article 9 of the European Convention. The Court took into account that these ultra-orthodox members of the Jewish community could practice their rituals and that financial reasons had precluded them from concluding an agreement with the ACIP. Such a consideration seems more related to money than to the protection of religious freedom.89 Paturel v. France90 is the second judgment on the merits involving freedom of religion. It related to the French social and public perception of Jehovah’s Witnesses as a sect. The applicant, a Jehovah’s Witness, had been sanctioned for the publication of a book denouncing and criticising the action of a statefunded private association fighting sects. The Court did not declare a violation of Article 9 ECHR, but condemned France for infringing freedom of speech (Article 10 ECHR), as the book was considered to contribute to public debate. As to the status of Jehovah’s Witnesses, mention should be made of PalauMartinez v. France,91 although it did not raise any issue under Article 9 of the ECHR. The case concerned a decision taken by domestic courts to establish children’s residence at their father’s home after divorce, on the basis that the mother’s education was inappropriate. Since part of the reasoning was based on the fact that the mother was a Jehovah’s Witness, the ECtHR declared a violation of Articles 8 (privacy) and 14 ECHR (prohibition of discrimination). There are several decisions of inadmissibility concerning applications against France lodged by religious associations and groups. Although unsuccessful, they show the willingness of religious minorities to make their voice heard in Strasbourg.92 In Fédération chrétienne des Témoins de Jéhovah v. France,93 the complaint was filed by an association linked to Jehova’s Witnesses, 88 89

90 91 92

93

EComHR, Report, application no. 27417/98, 20 October 1998. See a critical view in P. Rolland., ‘L’arrêt Cha’are Shalom Ve Tsedek v. France du 27 juin 2000’, in CREDHO cahier no. 14, La France et la Cour EDH. Jurisprudence de l’année 2000, (Brussels: Bruylant, 2001), pp. 61–65. No. 54968/00, 22 December 2005. No. 64927/01, 16 December 2003. See e.g. E.ComHR, Church of Scientology of Paris v. France (inadmissibility decision no. 19509/92, 9 January 1995). This case concerns a complaint in order to obtain access to classified data of the State and which related to members of the Church of Scientology. The Court declared inadmissible its complaint, considering that it was not compulsory for France to give access to these data. Dec. no. 53430/99, 6 November 2001.

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which alleged discrimination on account of its legal status. The case was arguably filed to raise awareness and fight distrust against minority religious groups.94 A few inadmissibility decisions raise the issue of religious symbols. In Phull v. France,95 a Sikh stated that the security staff of a French airport compelled him to remove his turban for inspection. The applicant argued that there had been no need for the security staff to make him remove his turban, especially as he had not refused to go through the walk-through scanner or to be checked with a hand-held detector. The Court affirmed, however, that ‘security checks in airports are undoubtedly necessary in the interest of public safety within the meaning of that provision’; moreover, ‘the arrangements for implementing them in the present case fell within the respondent State’s margin of appreciation, particularly as the measure was only resorted to occasionally’. Another case found inadmissible concerned the denial of access of a Muslim woman to the French Consulate in Marrakech because of her refusal to remove her headscarf. The Court took into account that the removal was required because of ‘security reasons’ and rejected the complaint although she was ready to show her face and hair to a female security agent.96 Dogru v. France97 and Kervanci v. France98 are the first cases to challenge the banning of religious symbols in schools. Both relate to the expulsion of Muslim girls from public schools because they refused to remove their headscarves during sports classes.99 Together with the Sikh cases, which gave birth to inadmissibility decisions, such as the Phull case cited above100 and the Mann Singh case (concerning the denial to remove the turban for a driving license picture),101 they reflect the restrictive view of the Strasbourg Court when the state’s margin of appreciation meets religious issues. Such a restrictive view might have a negative impact on future litigants pleading similar cases.102 94

O. Rolland, ‘La France et les sectes (décision Fédération chrétienne des Témoins de Jéhovah du 6 novembre 2001)’, CREDHO: La France et la Cour EDH. Jurisprudence de l’année 2001, (Brussels: Bruylant, 2002), pp. 175–179. 95 Dec. no. 35753/03, 11 January 2005. 96 ECtHR, El Morsli v. France (no. 15585/06), 4 March 2008. 97 ECtHR (no. 27058/05), 4 December 2008. 98 ECtHR (no. 31645/04), 4 December 2008. 99 Note that these cases occurred before the complete banning of conspicuous religious symbols in public French schools and therefore do not challenge the ‘Stasi Act’ of 15 March 2004 (no. 2004–228) referred to in footnote 30. Conversely, the complaint filed on 30 May 2008 by Jasvir Singh and Ranjit Singh before the ECtHR, with the support of the United Sikhs Association, directly challenges this piece of legislation (see details in footnote 67). 100 No. 35753/03, 11 January 2005. 101 No. 24479/07, 13 November 2008. 102 For an application currently pending in Strasbourg, see the case referred to in footnote 68.

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Finally, the few cases which have been lodged regarding freedom of expression have had a large impact in the media because of their social or political sensitivity. Although they cannot be classified as implicating ‘vulnerable’ individuals, they relate to the expression of ‘non majoritarian’ views and have opened public debate in the light of Article 10 of the European Convention and under Article 17 of the ECHR (i.e. abuse of law clause). Revisionism and the limits of freedom of expression,103 as well as publications regarding facts and actors of the French resistance during the Second World War have been issues dealt with by the Court.104 The fight against anti-semitism or hate speech has been regulated through several pieces of legislation.105 In the Chauvy ruling,106 the Strasbourg Court considered that even though the ‘so called “Barbie testament” did not belong to the category of clearly established historical facts – such as the Holocaust- (…)’, there was an important attempt to the reputation of Mr and Mrs Aubrac, recognised members of the Resistance movement. It concluded that there was no breach of Article 10 ECHR and supported French domestic courts’ decision to ban information attempting to the reputation of these two persons. A last set of case law is related to the right to vote. Its direct impact on democracy, and the tension it reveals between diffused and less diffused political views are the reasons why it finds a place in a contribution dedicated to vulnerable groups or individuals. In Py v. France,107 the applicant, a professor, teaching and living in New Caledonia at the time, complained of the restriction of his right to vote on the special electoral roll on self-determination. A 10-years residence was required in order to vote, a condition that the Court considered in accordance with the ECHR. Piermont108 is a sui generis case. It does not raise an issue under Article 3 of Protocol no. 1 of the ECHR (right to vote), but concerns the public expression of a political opinion in a foreign country going through a process of accession to its autonomy. The applicant, a German citizen and member of the EU Parliament, was expelled from the French Polynesian territory because she expressed her public support to the independence process and criticism against nuclear tests. The Court declared violation of Article 10 of the Convention. However, it based its ruling on the fact that Mrs Piermont could not be considered a ‘foreigner’ in the sense of the

103

104 105 106 107 108

ECtHR, Lehideux et Isorni v. France (no. 55/1997/839/1045), 23 September 1998; ECtHR, Garaudy v. France (no. 65831/01), 24 June 2003. ECtHR, Chauvy and Others v. France (no. 64915/01), 29 June 2004. See supra, paragraph 2. ECtHR, Chauvy and Others v. France (no. 64915/01), 29 June 2004. No. 66289/01, 11 January 2005. ECtHR, Piermont v. France (no. 15773/89), 27 April 1995.

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Convention. Her condition of national of an EU country and member of the EU Parliament granted her a better protection of her rights. It was indeed her political functions, which lead the Court to affirm her right to express a political opinion under the ECHR and ensured a higher protection from expulsion. This case could also have been listed among those relating to the rights of foreigners. Taking into account Mrs. Piermont’s status as an EU citizen, one might doubt whether she could be considered to be a ‘vulnerable’ individual as long as the issue of expulsion was at stake. Should she have been a national from a third country, the Court would have had to pronounce itself on the validity of the expulsion decision.

5.

Conclusion

Legal literature traditionally highlights one important feature of the French situation regarding the ECHR: France’s self-perception as the ‘human rights homeland’ (patrie des droits de l’homme). It has long been considered (and it is still sometimes considered) that the highly developed domestic system of human rights protection does not need external monitoring. Such a traditional presentation should be strongly qualified. To a certain extent, it is also outmoded. A shift in political and judicial approaches towards international protection of human rights has been taking place in France. Although France was slow to ratify the European Convention on Human Rights and to accept the jurisdiction of the European Court of Human Rights, the current political position is, to a large extent, supportive of the Strasbourg system. In addition, most French courts are no more reluctant to construe the Convention’s provisions in line with Strasbourg rulings issued against countries other than France. Furthermore, although the control mechanisms to protect human rights are deeply rooted in the French legal system, the constitutional conception of equality enshrined in the indivisibility principle of the Republic makes it very hard for vulnerable groups and minorities to be recognised as such. In their search for an established identity, religious minorities, homosexual or transgender lobbies are considering Strasbourg as an instance of paramount importance. With the growing influence of the common law approach of strategic litigation, recourse to Strasbourg is not simply taken with the objective of winning a particular case, but rather of changing the law. Finally, the high number of complaints involving foreigners also illustrates a change of attitude in this field, which is going through a growing process of transnational judicialisation supported by active and well-organised NGOs.

Chapter Five The Protection of Marginalised Individuals and Minorities in Germany: The Role of National and European Judicial Mechanisms Christoph Gusy and Sebastian Müller 1. Introduction The German human rights protection system comprises a differentiated political and judicial system. Non-judicial and judicial mechanisms are in place to prevent human rights violations and to redress them judicially in cases of unlawful interference. In this regard the judicial protection of human rights can be deemed the most important means of protection in Germany. All courts are obliged by the German Basic Law to abide by the fundamental rights it enshrines. In particular, the Federal Constitutional Court plays an integral role in protecting, promoting and developing human rights standards. In order to understand the protection provided by the European Convention on Human Rights (ECHR) to marginalised individuals and minorities, we need to consider it in relation to the framework of domestic constitutional guarantees in Germany. Individuals and groups must first seek redress through the German legal system. Only when they have pursued their case through all judicial channels are they legally allowed to lodge their complaint before the European Court of Human Rights (ECtHR). Over the past decades the Federal Constitutional Court has become the key actor in upholding the rule of law and guaranteeing the fundamental rights of individuals alleging a violation. The main reason for this is the existing individual complaint procedure. This allows individuals, groups and organisations to file a complaint with the Federal Constitutional Court alleging unlawful interference with their rights. The strong position of the Federal Constitutional Court and the highly developed case law have, of course, consequences for litigation before the ECtHR and the prospects of success of

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litigants in Strasbourg. Although Germany can be seen as a middle ranking country in terms of the number of pending cases against it, only very few petitions lead to adverse judgments against Germany. For example, in December 2007, some 2,500 cases were pending before the ECtHR against Germany,1 yet in the same year only seven adverse judgments were delivered.2 The same picture emerges when looking at the statistical information from 1998 onwards.3 Nonetheless, despite the relatively low number of judgments against Germany, the role of the ECtHR should not be underestimated. Firstly, the protection of human rights cannot be guaranteed by just one judicial body. In the past, the ECtHR has rectified problems which had not been regarded as problematic from a nationally-specific view of human rights protection. As a result, the ECtHR was – and still is – important for those cases in which the national system had failed to provide sufficient protection. The reasons for this were diverse. In some rare cases, interference with a fundamental right had been deemed justified by the national authorities and was later assessed differently by the ECtHR. In other cases, the national system lacked effective monitoring mechanisms to detect infringements. Secondly, the ECtHR’s judgments provide valuable legal knowledge and direction for similar cases reviewed at the national level. In this way, it fulfils its objective of interpreting national provisions and even the German Basic Law in accordance with European norms of human rights. Finally, ECHR and the Strasbourg judgments can influence the political law-making process and protect human rights in a preventive manner even before individual applicants lodge a complaint with the Federal Constitutional Court or the ECtHR. Judicial mechanisms linked to the German Basic Law or the ECHR, however, may not always be appropriate for marginalised individuals and minority groups that lack legal residence status. In particular, migrants4 without legal residence status are likely to find themselves in a weak position. Using the

1

2 3

4

Council of Europe, European Court of Human Rights, Annual Report 2007 (Strasbourg: 2008), p. 135. Ibid., p. 142. S. Greer, The European Convention on Human Rights (Cambridge: Cambridge University Press, 2006), p. 77. Until December 2007, the ECtHR delivered 60 adverse judgments finding at least one violation. Council of Europe, Annual Report 2007, p. 145. The broader notion of ‘migrants’ is used for both international migrants and immigrants, as the cases discussed do not clearly distinguish between these groups. For a definition of both migrants and immigrants see: International Organisation for Migration, World Migration 2008 (Geneva: IOM, 2008), pp. 494–495.

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judicial process would require disclosing their illegal status and risk triggering the administrative extradition procedure. Therefore, in the case of illegal migrants, the existing judicial protection system provides no tangible help.5 The vulnerability of these migrants can result in a human rights problem. For example, pregnant women with no form of residence permit face a difficult legal situation that may lead to insufficient healthcare. The German alien law obliges physicians in public hospitals to inform the relevant authorities if they tend to a patient without legal status in Germany.6 As such, migrants without legal status will often seek to avoid any kind of official contact, including for reasons of health.7 Taking into consideration the obligation to protect the physical integrity of a person (under Article 2 and Article 8 ECHR), it could be argued that the German alien law renders illegal migrants reluctant to seek medical help, which could lead them into life-threatening situations. The question arises as to whether a migrants’ health is their sole responsibility or if the state, by introducing such legal requirements, is infringing its obligation under the ECHR. This chapter explores the human rights protection afforded to marginalised individuals and minority groups in Germany. Understanding the potential for such individuals and minorities to seek protection under the ECHR must begin with a consideration of German legal perspectives on the binding force of Strasbourg Court judgments within the national legal and political order. The first part of this chapter depicts the domestic protection system and the role of the ECHR and ECtHR judgments within it. The second part of this chapter identifies the marginalised individuals and minorities in Germany who claim protection under the ECHR and analyses the reasons they do so. With regard to issues raised by individuals from vulnerable and minority groups in the German context, this section will focus on asylum seekers, residence permits for migrants, expulsion of migrants, discriminatory legislation concerning foreigners in criminal court proceedings, mentally handicapped persons, politically active civil servants and cases relating to the right of freedom of religion. Finally, this chapter examines the impact of ECtHR judgments on the protection afforded to the individual claims under focus, as well as on legal awareness and practice domestically.

5 6 7

See G. Pflaumer, ‘Leben in der Schattenwelt’, Vorgänge 4 (2006), 95. See § 87, para. 2, Residence Act [Aufenthaltsgesetz]. J. Alt and R. Fodor, Rechtlos? Menschen ohne Papiere (Karlsruhe: von-Loeper-Literaturverlag, 2001), p. 99.

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2. The National Context: ECHR Status, Judicial Approaches and Academic Scholarship In the German legal order, the position of the ECHR is equivalent to domestic federal law.8 This is a result of the dualistic approach in Germany towards international law. The ECHR had to be approved by the Federal Parliament in order to incorporate it into the German legal order as applicable law. As the ECHR has the status of federal law, it supersedes any state law9 or other legislative acts not stemming from the federal lawmaker. As national federal law, the ECHR has a different rank to the German Basic Law. This constellation leads to the German Basic Law being applied first in contentious cases, though the ECHR is a binding Convention under international law for Germany. However, the Federal Constitutional Court emphasised in a decision from 2004 that ‘[…] the binding effect of statute and law also includes a duty to take into account the guarantees of the Convention and the decisions of the ECHR as part of a methodologically justifiable interpretation of the law’.10 This doctrine has two main aspects. Firstly, the provisions of the ECHR bind all responsible bodies of any state authority directly within the framework of the German Basic Law.11 The Federal Constitutional Court holds the view that, wherever possible, the German Basic Law must be interpreted in the light of the ECHR and the jurisprudence of the ECtHR.12 As a result, the main legal reference framework, the German Basic Law, has to be seen in conjunction with the ECHR. Therefore, German authorities – the lawmakers, the courts and the administration – must take the ECHR, in light of the jurisprudence of the ECtHR, into account. If they fail to do so, this can be a violation of both the German Basic Law and the ECHR simultaneously and an individual constitutional complaint can be based on an alleged violation of the ECHR in conjunction with the German Basic Law.13

8

9

10 11 12 13

Federal Constitutional Court, 26 March 1987, BVerfGE 74, 370; J. A. Frowein, ‘Einführung’, in Frowein and Peukert (eds.), Europäische Menschenrechtskonvention. EMRK-Kommentar, 2nd ed. (Kehl et al.: Engel, 1996), marginal no. 6; R. Uerpmann, Die Europäische Menschenrechtskonvention und die deutsche Rechtsprechung. Ein Beitrag zum Thema Völkerrecht und Landesrecht (Berlin: Duncker & Humblot, 1993), pp. 72ff. The term state law refers to the legislation adopted by one of the 16 state parliaments with in Germany’s federal structure. Federal Constitutional Court, 14 October 2004 (no. 2 BvR 1481/04), para. 47. Ibid., paras. 46–47. Ibid., para. 32. Ibid., para. 63; H.-J. Papier, ‘Execution and effects of the judgments of the European Court of Human Rights from the perspective of German national courts’, Human Rights Law Journal 27 (2006), 2. Technically, a constitutional complaint can be lodged with the Federal Constitutional Court on the ground of the corresponding article in the German Basic Law in conjunction with the rule of law.

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Secondly, the German Basic Law does not waive its sovereignty. For this reason the judgments of the ECtHR have to be taken into account, but not executed automatically by the German authorities. Thus, the authorities are enabled to deviate from the ECtHR’s judgments, and this must be stressed, exceptionally when there is no methodologically justifiable interpretation to avoid a violation of the German Basic Law.14 Due to the similar scope of the provisions of the German Basic Law and the ECHR, it is very likely that circumstances under which the ECtHR will not judge consistently with the parameters of the German Basic Law and in which a deviation might be justifiable will occur only rarely, if ever. German academic literature concerning the ECHR and the ECtHR judgments encompasses commentaries, books and articles about specific adverse judgments against Germany and also more general treatises regarding the applicability of the ECHR and ECtHR judgments in the German legal order.15 The most predominant issue discussed among legal practitioners and scholars continues to be the binding force of ECtHR judgments within the German legal order.16 The effect and binding force of ECtHR judgments within Germany and their judicial consequences have received widespread attention in scholarly literature and also in the press, especially in recent years. 14

15

16

‘There is therefore no contradiction with the aim of commitment to international law if the legislature, exceptionally, does not comply with the law of international agreements, provided this is the only way in which a violation of fundamental principles of the constitution can be averted.’ Federal Constitutional Court, 14 October 2004 (no. 2 BvR 1481/04), marginal no. 35. For the same opinion: H.-J. Papier, ‘Gerichte an ihren Grenzen. Das Bundesverfassungsgericht’, in Hilf, Kämmerer and König (eds.), Höchste Gerichte an ihren Grenzen (Berlin: Dunker & Humblot, 2008), p. 152. As for the reform process concerning the 14th Protocol see: M. Bertschi and H. Keller, ‘Erfolgspotential des 14. Protokolls zur Europäischen Menschenrechtskonvention’, Europäische Grundrechte Zeitschrift (2005), 204. C. Gusy, ‘Die Rezeption der EMRK in Deutschland’, in Grewe and Gusy, Menschenrechte in der Bewährung (Baden-Baden: Nomos, 2005), pp. 137–156; E. Klein, ‘Should the binding effect of judgments of the European Court of Human Rights be extended?’, in Mahoney, Matscher, Petzold and Wildhaber (eds.), Protecting human rights. The European perspective. Studies in memory of Rolv Ryssdal (Köln et al.: Heymann, 2000), pp. 705–713. See as an extract of the literature: H.-J. Cremer, ‘Kapitel 32: Entscheidungen und Entscheidungswirkung’, in Grote and Marauhn (eds.), EMRK/GG. Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz (Tübingen: Mohr Siebeck, 2006), pp. 1704–1771; H.-J. Cremer, Zur Bindungswirkung von EGMR-Urteilen – Anmerkung zum Görgülü-Beschluss des BVerfG vom 14.10.2004’, Europäische Grundrechte Zeitschrift (2004), 683; J. Meyer-Ladewig and H. Petzold, ‘Die Bindung deutscher Gerichte an Urteile des EGMR’, Neue Juristische Wochenschrift (2005), 15; Papier, ‘Execution and effects of the judgments of the European Court of Human Rights’, Human Rights Law Journal 27 (2006), 1; G. Ress, ‘Wirkungen und Beachtung der Urteile und Entscheidungen der Straßburger Konventionsorgane’, Europäische Grundrechte Zeitschrift (1996), 350.

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Until 2004, the question of the applicability was addressed only by legal professionals, and did not take into account the larger context of human rights protection. This changed in 2004, when the ECtHR found in two cases that Germany had violated the ECHR. In Görgülü v. Germany the Court found a violation of Article 8 of the ECHR because a father was not granted visiting rights allowing him to see his child.17 In Hannover v. Germany, the publication of private photographs was also deemed to violate Article 8 of the ECHR.18 These two cases triggered extensive discussion within Germany, discussion which had been absent twenty years earlier, when in 1985 the Federal Constitutional Court delivered a decision concerning the binding force of the ECHR.19 In contrast, the judgments of the ECtHR in 2004 were accompanied by domestic developments that fomented public controversy. In Görgülü v. Germany, a higher regional court had deliberately refused to take the ECtHR’s judgment into account.20 This forced the Federal Constitutional Court to lay down the basic principles of the ECHR’s binding force.21 In Hannover v. Germany the Federal Constitutional Court itself was overruled. This was perceived as highly controversial within Germany. Following the Görgülü case, recent legal analyses adopt a number of different views regarding implementation of ECtHR judgments. There is an understanding that ECtHR judgments do not have any direct binding force in the sense that they overrule national court judgments, administrative acts or national legislation. In addition, ECtHR reasoning in a case is not seen to prescribe how to redress infringement of the ECHR by the respondent state. As most legal scholars conclude, this falls completely within the state’s discretion.22 However, the judgments directly bind the respective authority, including the courts, within the legal framework of the state. They do so on the basis of Article 46 ECHR, in conjunction with the national legislation transforming the ECHR into domestic law and the rule of law laid down in the German Basic Law. This legal reasoning is considered to reflect a new approach, as it combines the ECHR and the national legal order to guarantee the applicability of the ECHR within the framework of the German Basic Law.23 Strasbourg 17 18 19

20 21 22

23

ECtHR, Görgülü v. Germany (no. 74969/01), 26 February 2004. ECtHR, Hannover v. Germany (no. 59320/00), 24 June 2004. See Federal Constitutional Court, Pakelli, 11 October 1985, Neue Juristische Wochenschrift (1986), 1425–1427. OLG Naumburg, 30 June 2004, Familienrechtszeitung (2004), 1510–1512. Federal Constitutional Court, 14 October 2004 (no. 2 BvR 1481/04). J. Meyer-Ladewig, Konvention zum Schutz der Menschenrechte und Grundfreiheiten. Handkommentar, 2nd ed. (Baden-Baden: Nomos, 2005), Article 46, marginal no. 3; Cremer, ‘Entscheidungen’, marginal no. 67. Meyer-Ladewig and Petzold, ‘Bindung’, 20.

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Court judgments oblige public authorities to revoke or alter an administrative act found to be in breach of the ECHR, as long as this does not contradict the German Basic Law. If existing legislation is a source of infringement of the ECHR, then the lawmaker is obliged to amend it.24 Furthermore, Strasbourg Court judgments form a basis for national courts to reopen cases upon the request of the applicant and to take their findings into consideration. While some have claimed the above legal perspectives of the binding force of judgments were the state of the art before the contentious ruling of the ECtHR in the Görgülü case,25 others have stressed that the Federal Constitutional Court had developed its original interpretation of the binding character of Strasbourg judgments.26 The domestic effect of judgments pronounced against other states has also preoccupied the academic and legal community. It raises the contentious question of whether jurisprudence against other member states of the Council of Europe should also be taken into consideration in Germany.27 In general, most of the authors who have written on this stress that neither the ECHR nor the Federal Constitutional Court foresee any directly binding effect in Germany of ECtHR judgments pronounced against other states.28 However, in the light of the ECtHR’s exceptional function within the European human rights protection system, many argued that such ECHR judgments had to be taken into account in cases of alleged conscious violation of the Convention with clearly parallel circumstances. Such authors argued that the judgments had to influence the national legal system or that the German Basic Law had to be interpreted in the light of the results of the Court.

24

25 26

27

28

J. A. Frowein and W. Peukert, ‘Artikel 53 (Bindende Kraft der Urteile)’, in Frowein and Peukert (eds.), Europäische Menschenrechtskonvention, marginal no. 7. Meyer-Ladewig and Petzold, ‘Bindung’, 17. S. Kadelbach, ‘Der Status der Europäischen Menschenrechtskonvention im deutschen Recht’, Juristische Ausbildung (2005), 484; Cremer, ‘Bindungswirkung von EGMR-Urteilen’, 692. See Frowein and Peukert, Artikel 53, marginal no. 7; Gusy, ‘Rezeption’, pp. 154–156; H. Mosler, ‘Schlussbericht’, in Maier, Europäischer Menschenrechtsschutz. Schranken und Wirkungen (Heidelberg: Müller, 1982), pp. 355–369; J. Polakiewicz, Die Verpflichtungen der Staaten aus den Urteilen des Europäischen Gerichtshofs für Menschenrechte (Berlin: Springer, 1993), pp. 279ff. and pp. 347–354. See for the question of the interpretation of fundamental rights provisions: C. Grewe, ‘Vergleich zwischen den Interpretationsmethoden europäischer Verfassungsgerichte und des Europäischen Gerichtshofes für Menschenrechte’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2001), 459–474. C. Grabenwarter, Europäische Menschenrechtskonvention, 3rd ed. (München: Beck, 2008), p. 98; Meyer-Ladewig and Petzold, ‘Bindung’, 18; E. Pache, ‘Die Europäische Menschenrechtskonvention und die deutsche Rechtsordnung’, Europarecht 3 (2004), 406.

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The question of applicability of judgments against other states has practical repercussions for litigants in Germany. Above all, asylum seekers engaged in litigation in Germany can refer to cases such as Ahmed v. Austria. In this case, the ECtHR interpreted Article 3 ECHR in a way as to engage the responsibility of a state seeking to extradite foreigners to a country where they face a risk of torture and degrading or inhuman treatment.29 Due to the effects of the ECtHR judgments within the German legal order, the relationship of the Federal Constitutional Court and the ECtHR is also important for understanding the consequences for marginalised individuals and minorities appealing to the ECtHR. A central issue concerns the possibility that an ECtHR judgment in response to an individual complaint may contradict an earlier decision of the Federal Constitutional Court in the same case. As the importance of the judgments of the ECtHR has increased over the time, this issue of which judgment should prevail judicially in the German legal system has emerged. Consideration of this issue is also linked to the consequences that ECtHR judgments can have within the administrative and judicial system. If, for instance, the Federal Constitutional Court decided the publication of certain photographs did not violate the German Basic Law, while the ECtHR ruled to the contrary, the competent national authorities (in this case the courts) would theoretically have to consider both judgments.30 This conundrum emerged in the aftermath of the judgment in the case of Von Hannover, in which the ECtHR found the interpretation regarding the protection of private life provided by the Federal Constitutional Court in reference to the German Basic Law had violated the ECHR.31 It was argued that a possible solution to this conflict could be found in the implementation of the ECtHR judgment, without overruling the judgment of the Federal Constitutional Court, and within the legal frame outlined in the Görgülü case.32 This means that within the legal framework of the German Basic Law, the respective national authorities must generally abide by the judgments of the ECtHR. The repercussions for a litigant are obvious: the outcome of proceedings before a German court, including the Federal Constitutional Court, can be altered by the ECtHR.

29

30 31

32

ECtHR, Ahmed v. Austria (no. 25964/94), 17 December 1996, para 39. The ECtHR took the same stance in Chahal v. United Kingdom (no. 22414/93), 15 November 1996. See for instance ECtHR, Hannover v. Germany (no. 59320/00), 24 June 2004. R. Mann, ‘Auswirkungen der Caroline-Entscheidung des EGMR auf die forensische Praxis’, Neue Juristische Wochenschrift (2004), 3220. Cremer, ‘Bindungswirkung von EGMR-Urteilen’, 697–698. See Federal Constitutional Court, 14 October 2004 (no. 2 BvR 1481/04).

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An important debate among legal practitioners concerns migrants in Germany and the legal obligations that derive from Article 8 ECHR with regard to a) the execution of an expulsion order with a permanent prohibition on reentering Germany after a criminal conviction and b) the issuing of a residence permit.33 The question whether a migrant can be extradited for an indefinite period of time, or whether he or she must be issued a residence permit, has arisen in cases in which migrants have family ties within Germany. The ECtHR uses a range of criteria such as marriage to a person also living in Germany, the length of stay in Germany, the presence of children born in Germany and the job situation of a migrant to decide on the extent to which an expulsion order is in conformity with the Convention. In this regard, the notion of entrenchment was used to describe the situation of a migrant in Germany.34 In two judgments against Germany the ECtHR decided that the execution of a permanent expulsion order violated Article 8 ECHR because the German authorities did not take the living situation of the applicants into due consideration.35 The question of whether to grant a residence permit to certain migrants occurred after the ECtHR adopted several similar judgments against other states.36 This development is very interesting because it exemplifies, in a contentious area, the effect of the relevant ECtHR’s judgments in similar cases involving interpretation of Article 8 ECHR. The views of German legal scholars and practitioners on this point have been divided. While one approach has highlighted that Article 8 ECHR should be interpreted restrictively,37 another has stressed that a restrictive interpretation would not comply with Article 8 ECHR’s scope.38 33

34 35

36 37 38

M. Eckertz-Höfer, ‘Neuere Entwicklungen in Gesetzgebung und Rechtsprechung zum Schutz des Privatlebens’, Zeitschrift für Ausländerrecht (2008), 41; M. Hoppe, ‘Neuere Tendenzen in der Rechtsprechung zur Aufenthaltsbeendigung – Gibt es eine gemeinsame Linie in den Entscheidungen von EGMR, EuGH und BVerfG?’, Zeitschrift für Ausländerrecht (2008), 251; J. Bergmann, ‘Aufenthaltserlaubnis auf Grund von “Verwurzelung” ’, Zeitschrift für Ausländerrecht (2007), 128; G. Benassi, ‘Die Bedeutung der humanitären Aufenthaltsrechte des § 25 Abs. 4 und 5 AufenthG im Lichte des Art. 8 EMRK’, Informationsbrief Ausländerrecht (2006), 397; M. Hoppe, ‘Verwurzelung von Ausländern ohne Aufenthaltstitel - Wann kann Art. 8 I EMRK zu einem Anspruch auf eine Aufenthaltserlaubnis nach § 25 V AufenthG verhelfen?’, Zeitschrift für Ausländerrecht (2006), 125; D. Thym, ‘Respect for private life and family life under Article 8 ECHR in immigration cases: A human right to regularize illegal stay?’, International and Comparative Law Quarterly (2008), 87. See Bergmann, ‘Aufenthaltserlaubnis auf Grund von “Verwurzelung” ’, 128–131. ECtHR, Keles v. Germany (no. 32231/02), 27 October 2005; ECtHR, Yilmaz v. Germany (no. 52853/99), 17 April 2003. See Thym, Respect for private life, 95ff. Hoppe, ‘Verwurzelung’, 128–129. Benassi, ‘Aufenthaltsrechte’, 403.

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Chapter Five

Another issue relevant to the protection of migrants and asylum seekers regards the applicability of Article 3 ECHR in interpretations of the ECtHR. The ECtHR clearly includes risks posed by non-state actors (such as paramilitary groups not in the service of a state) within the ambit of Article 3 ECHR. Cases such as T.I. v. UK demonstrate this.39 Additionally, the state that expels a foreigner can be held accountable in cases in which an individual faces a real risk of ill-treatment in the light of Article 3 ECHR if removed to another state (see Chahal v. UK40). In Germany, the interpretation of the ECtHR regarding risk posed by non-state actors has been questioned because it curtails the state’s power to expel foreigners. Until the amendment of the Federal Aliens Act, which came about in the wake of the obligation to implement the EU-directives on asylum procedures, the Federal Administrative Court held the opinion that only state actors can act in the meaning of Article 3 ECHR.41 Only state actors were therefore legally perceived as liable for infringing the rights guaranteed under Article 3 ECHR. The discussion as to whether nonstate actors fall into the ambit of Article 3 ECHR has lost its practical implications, because the new immigration act of 2004 and its revision in 2007 amended the relevant provision to include non-state actors.42 Secondly, the applicability of the standards developed by the ECtHR has been transferred to the border management of the European Union (FRONTEX).43 EU practices at the common border, especially regarding the coastlines to Africa, have been assessed against the background of Article 3 ECHR. In this regard, the lawfulness of the immigration and asylum policy of the EU has been questioned and its applicability outside the territory of the EU, when involving authorities of EU member states, has been stressed.44 The applicability of the ECtHR standards in the area of the EU-border management must be monitored. Some recent publications in Germany question the absolute character of the prohibition against torture, one of the core principles of the ECHR. Mainly in the wake of the events in New York in September 2001 and following the

39 40 41

42

43

44

ECtHR, T.I. v. United Kingdom (no. 43844/98), 7 March 2000. ECtHR, Chahal v. United Kingdom (no. 22414/93), 15 November 1996. B. Huber, ‘The application of human rights standards by German courts to asylum-seekers, refugees and other migrants’, European Journal of Migration and Law (2001), 171, at 176ff. See § 60 para 1, sentence 4 Residence Act [Aufenthaltsgesetz]. The 2007 revision included the Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification for refugee status and thus clarifies the notion of acts of persecution. U. Lisson and R. Weinzierl, Border Management and Human Rights. A study of EU Law and the Law of the Sea (Berlin: Deutsches Institut für Menschenrechte, 2007). Ibid., pp. 42–70.

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abduction and murder of a young boy in Germany, some legal commentators have sought to challenge the absolute character of Article 3 ECHR. They argue that under exceptional circumstances and within the framework of existing legal requirements, torture might be allowed or at least made legal, meaning that such actions might be exculpated from criminal convictions.45 Such fringe ideas, however, contradict the fundamental principles of our Western democracies based on the respect of the dignity of each human being and the inseparable concept of the rule of law.46

3. Developments in Germany and Litigation in the ECtHR on Claims Raising Articles 8-11//14 ECHR as well as Claims Involving Minorities and Migrants The rights of aliens in Germany have evolved recently in tandem with changing political perceptions of migrants and (international) migration. At the beginning of the new millennium, the governing parties in Germany discussed a new immigration act that was to operate under a different paradigm from the preceding legal framework relating to migrants. Until then, immigration law had been understood as alien law and the focus was laid on the requirements to enter Germany, to receive a residence permit and the circumstances under which a foreigner might be expelled. This changed in 2004, when the new act that came into force involved new regulations that now concerned the integration of migrants. One must also highlight the semantic shift in the new legislation that redefined the focus from ‘alien’ law to ‘immigration’ law. This shift in the legislation was accompanied by a shift in the attitude of political actors to the effect that Germany must be seen as a country with a continuous influx of migrants. Whether the new immigration legislation and the political shift have influenced societal attitudes, cannot be determined with certainty. However, similarly to other societies, German society has not always been open towards international migrants and this has been reflected in legislation and court practice.

45

46

O. Depenheuer, Selbstbehauptung des Rechtsstaats (Paderborn: Schöningh, 2007), p. 72; G. Wagenländer, Zur strafrechtlichen Beurteilung der Rettungsfolter (Berlin: Duncker und Humblot, 2006), pp. 191–196. Polzin undertakes a critical appraisal of the theoretical approach and concludes that a suspension of the prohibition of torture is illegal under all circumstances and not favourable. See J. P. Polzin, Strafrechtliche Rechtfertigung der >Rettungsfolter