Lecturer: Miljen Matijašević e-mail: [email protected] G10, room 6, Tue 11:30-12:30 Session 4 1. Revision of the last session 2. The Council of Europe 3. The European Court of Human Rights 4. Case Study The Constitution / Judiciary in the Republic of Croatia 1. How do we define a constitution? 2. When was the Croatian Constitution adopted and how many times has it been amended? 3. According to the Constitution, what sort of state is the Republic of Croatia? 4. What are some of the fundamental features of the RC, laid down in the basic provisions of the Constitution? 1. Name some basic rights provided for in the C.? 2. What government institutions are envisaged in the Constitution? 3. What do you know about the Constitutional Court? 4. What do you know about the 2010 amendments to the Constitution? 1. 2. 3. 4. 5. 6. 7. Describe the court network of the RC! How many Supreme Court judges are there and how is the court organised? What do municipal and county courts deal with? Do county courts have first instance jurisdiction? What is the jurisdiction of commercial courts? Who appoints judges in Croatia? What are the mandatory requirements for judicial office? International association comprising 47 member countries, founded in 1949 Observer countries: The Holy See, the USA, Canada, Japan, Mexico Applicant country: Belarus Located in Strasbourg Its aim is to develop and promote democratic principles based on the European Convention of Human Rights (key document of the COE) and other reference texts on the protection of individuals Aims: to protect human rights, pluralist democracy and the rule of law; to promote awareness and encourage the development of Europe's cultural identity and diversity; to find common solutions to the challenges facing European society: such as discrimination against minorities, xenophobia, intolerance, bioethics and cloning, terrorism, trafficking in human beings, organised crime and corruption, cybercrime, violence against children; to consolidate democratic stability in Europe by backing political, legislative and constitutional reform. Idea of a united Europe was born after WW2, when the continent was devastated by the war, and when there was a shared strong desire for the horrors of war never to happen again First suggested by Winston Churchill in his speech in Zürich in 1946, when he suggested building ‘a kind of United States of Europe’ Various initiatives were brought together into the International Committee of the Movements for European Unity It organised the Hague Congress (7 May 1948), remembered as "The Congress of Europe". The Hague Congress (1948) Over 1,000 delegates from 20 countries Adopted a series of resolutions which lay the foundations of the Council of Europe: ◦ ◦ ◦ creation of an economic and political union to guarantee security, economic independence and social progress the establishment of a consultative assembly elected by national parliaments the drafting of a European charter of human rights and the setting up of a court to enforce its decisions Two ideas for realization of the principles: a federative union of states (supported by Belgium and France), and a form of intergovernmental co-operation (preferred by the UK) Compromise - the Council of Europe consisting of: ◦ ◦ a committee of foreign ministers, to meet in private (with decision-making powers) a consultative body (members chosen by parliaments), to meet in public Statute of the Council signed in 1949 by 10 founding countries in London Soon followed by the signing of the European Convention on Human Rights, which entered into force in 1953 References to the economic and political union declared at the Hague Congress were dropped in the Statute This gave rise to the development of initiatives which led to the formation of the European Communities More countries joined in the following decades 1990s were marked by the joining of Eastern European states, including former Soviet states and Croatia Today’s institutions of the COE: ◦ Committee of Ministers ◦ Parliamentary Assembly ◦ Congress of Local and Regional Authorities ◦ Secretary General Official languages: English and French Unit 14 Set up under the European Convention on Human Rights (a.k.a. Convention for the Protection of Human Rights and Fundamental Freedoms) First public hearing took place in 1960 (Lawless v Ireland) Instituted as a permanent court in 1998 The permanent judges now elected by the Parliamentary Assembly Direct access for 800 million European citizens There are 47 judges (equal to the number of member countries), but there is no nationality requirement Judges supposed to be impartial, not represent interests of their home country Judges elected for a six-year term, but may be re-elected until they reach the age of 70 Plenary Court – elects office-holders, i.e. The President, the two Vice-Presidents and the Section Presidents (current President: Jean-Paul Costa) Each Section contains Chambers, consisting of seven judges, who make most judgements Committees of three judges assess applications and assess their admissibility Recent change: admissibility can be assessed by a single judge The Grand Chamber (17 judges) deals with cases that raise a serious question of interpretation or application of the Convention, or a serious issue of general importance A Chamber may relinquish jurisdiction in a case to the Grand Chamber at any stage in the procedure before judgment, as long as both parties consent. Any Contracting State (State application) or individual claiming to be a victim of a violation of the Convention (individual application) may lodge directly with the Court in Strasbourg an application alleging a breach by a Contracting State of one of the Convention rights. REQUIREMENT: the applicant must have exhausted all available legal options in their own country the authority for the violations of Convention rights in Croatia: ◦ the Constitutional Court of the RC The procedure before the European Court of Human Rights is adversarial and public. It is largely a written procedure. Hearings, which are held only in a very small minority of cases, are public, unless the Chamber/Grand Chamber decides otherwise on account of exceptional circumstances. Individual applicants may present their own cases, but they should be legally represented once the application has been communicated to the respondent Government The Council of Europe has set up a legal aid scheme for applicants who do not have sufficient means. Official languages: English and French, but applications may be submitted in any of the official languages of the Contracting States Once the application has been declared admissible, one of the Court’s official languages must be used, unless the President of the Chamber/Grand Chamber authorises continued use of the language of the application. If a Committee decides by a unanimous vote that an application is admissible, it is referred to a Chamber Application referred to the respondent State, which is asked to address the issues of admissibility and merits that arise, and the applicants’ claims for just satisfaction Parties also invited to settle Chamber decides on admissibility and merits by a majority vote Dissenting opinions may be appended to the judgement A Chamber judgment becomes final three months after its delivery. Within that time, any party may request that the case be referred to the Grand Chamber if it raises a serious question of interpretation or application or a serious issue of general importance. If the parties declare that they will not make such a request, the judgment will become final immediately. Judgements of the Grand Chamber are final. Supervision of the execution of judgements conducted by the Committee of Ministers. The State in breach of the Convention must take appropriate remedial measures to comply with the Court’s judgement www.coe.int Read more about the Council of Europe, the Court Judgements available online member country applicant country observer country the rule of law cultural identity and diversity human trafficking organised crime corruption intergovernmental co-operation Committee of Ministers Parliamentary Assembly European Convention on Human Rights Contracting State impartial office-holder Chambers the Grand Chamber application (to the Court) to assess admissibility respondent state dissenting opinion final decision ECHR: Medić v. Croatia On 3 June 1994 the applicant applied for the enforcement of a final judgment of the Omiš Municipal Court ordering a certain N.B. to pay him a sum of money. An enforcement order to that effect was issued on 14 September 1994. The enforcement order was to be carried out by selling a real estate owned by N.B. at a public tender. On 26 March 1996 a certain M.B. objected to the enforcement proceedings claiming that she was the co-owner of the real estate in question. The Municipal Court instructed M.B. to institute civil proceedings whereby she would claim her ownership and consequently the Municipal Court stayed the enforcement proceedings pending the outcome of these civil proceedings. N.B. and M.B. went on file lawsuits against the applicant. A decision was reached in this civil lawsuit by the Municipal Court, but was quashed by the Split County Court in 2004 and the case was remitted for retrial. The applicant lodged a complaint to the Constitutional Court regarding the length of enforcement proceedings. In 2006 the Constitutional Court ruled in the favour of the applicant and awarded him HRK 7,800 in compensation, and ordered the Split County Court to accelerate proceedings relating to enforcement. The Split County Court instructed the Omiš Municipality Court to resolve the civil lawsuit filed by N.B. The Court dismissed the case and reached a decision regarding enforcement, which became final on 8 January 2008. However, the enforcement is still pending. It had been 14 years since the original decision on enforcement had been reached (11 of which were after the RC ratified the Convention). Medić claimed HRK 510,542.80 of pecuniary damage and EUR 16,000 of non-pecuniary damage. The ECHR granted him EUR 3,650 of nonpecuniary damage and EUR 550 for costs.