Discuss how the EHCR fits into national constitutional orders and you relate this to the rule of law, it could help to identify this as the theme more consistently and to develop the later discussion
I wrote a dissertation about criminal law. I got a feedback on one of my chapters as following ”The chapter has some interesting content, but it is unclear what is its overall theme because it tends to jump from one point to a different point quite a lot, e.g. how does the discussion of criminal law relate to the rest of the chapter? You could make a link by noting how criminal law is especially important from a rule of law point of view and how this connects with the ECHR as a means of ensuring the rule of law, which you discuss towards the end);
-It seems to me that the chapter seeks to discuss how the EHCR fits into national constitutional orders and you relate this to the rule of law, it could help to identify this as the theme more consistently and to develop the later discussion ( criminal law ) 400 words”
Can you please help me to improve my chapter by:
– Follow the feedback and make it related with criminal law. Add around 300 words or more with referances.
– make good linking, and make it more consistent.
Requirements: 300-400 words
Chapter 2 Balancing Law and Protection of Human Rights in European Countries and Procedure Rules
2.1 Introduction
The Convention’s rules apply “directly” and precede national laws in most European nations. The ECHR and the ECtHR’s case law are recognized as the sources of law with direct applicability by state laws. The provisions of the Convention which are not integrated into the laws of the Contracting States, in particular Belgium, France, the Netherlands, and Switzerland, directly affect national law and prevail over provisions of federal law that are not compliant. For EU member states, the direct impact of ECHR regulations is nothing new. Approaches to the direct effects of EU actions, which are a necessary part of membership in the EU, have contributed independently to this. For European nations, the immediate impact of the ECHR is “obvious.”
The preservation of a person’s fundamental rights and liberties is the focus of the ECHR regulation, which implies that the articles of the Convention have an immediate impact. Without further action from the authorities of the State Parties, the guarantee of the rights outlined in the Convention is, in fact, entirely accurate. Therefore, it is possible to think of these rights as directly relevant. According to two essential articles, the European Convention’s rules precede any national laws that conflict with them. The first declares the fundamental nature of the rights and liberties guaranteed by the Convention. Second, the Preamble to the European Convention emphasizes that one of the Council of Europe’s key goals is unity among its Member States. The European Court, which serves as a tool for monitoring, focuses its operations on accomplishing the goal mentioned earlier.
In this article, several possible approaches are explored for how we can protect human rights while implementing the law and The European Court of Human Rights approach. In addition, In this chapter, we will first examine the procedures of the law while setting out some relevant cases. Following that, we will go into more detail about the European Court’s strategy, and after that, we will talk about the concept of human rights protection in European countries.
2.2 The Rule of Criminal Procedure Rules
Since the end of the eighteenth century, English criminal procedure has undergone a number of changes that are no less fundamental than those that have occurred on the Continent, though the changes have been patchy and less obvious because neither a political revolution nor a new procedural code has occurred. The first relates to the methods used to look into and adjudicate criminal charges. The execution of the criminal code was essentially a matter of private industry in the eighteenth century because England lacked both a professional police force and a public prosecutor. The attorney general and his deputy, the solicitor general, were the state’s prosecuting solicitors in a small number of high-profile political matters and murder prosecutions. For all other violations, private citizens—victims or their families, and occasionally other individuals who were lured to prosecute in the hopes of receiving a reward—brought the case. They had some modest support in their endeavors from lay magistrates, whose duties at the period included gathering evidence and making arrests of suspects. They also received support from an antiquated medieval system of elected constables in normal times and from the army during riots. The phrase “the enforcement of the criminal law was in the hands of the citizens themselves, and not the central organs of the state” was physically accurate at this moment in time and was not just rhetoric.
Due to opposition from a number of Member States who claimed that the European Convention on Human Rights (hereinafter the Convention) and the enforcement mechanism of the European Court of Human Rights (hereinafter the ECtHR) rendered EU regulation unnecessary, the European Union’s initial attempts to establish minimum procedural rights for suspects and defendants throughout the European Union failed in 2007. Criminal defense rights returned to the discussion with the signing of the Lisbon Treaty in an effort to foster greater trust between parties.
An effective weapon against crime is the combination of covert and transparent methods for gathering information on crimes planned and committed while bolstering constitutional protections for an individual’s rights and freedoms. This is accomplished through the transparency of legislative regulation and the conduct of covert investigation (search) actions, the presence of statutory control mechanisms for their enforcement. The role of the court in the mechanism of protecting an individual’s rights and legitimate interests, which may be limited at pre-trial stages of criminal proceedings, is expanding in accordance with the rules of the new Criminal Procedural Code in the area of human rights and criminal justice. As a result, judicial review is a guarantee of law enforcement at the pre-trial stage of the investigation for a person and a citizen as well as for criminal justice because it is meant to stop the unlawful restriction of the constitutional rights of the parties to criminal proceedings and, if necessary, quickly and effectively restore them.
Given that there is no such independent level of investigation in the UK’s criminal justice system, the definitions of judicial review at the pre-trial stage of investigation are only utilized under certain circumstances in the UK. The conduct of covert investigation (search) actions in this nation is subject to scrutiny, which is dependent on the type of activity conducted and does not only rely on the issuance of the pertinent authorization. For instance, the Minister of Internal Affairs can order the confiscation of correspondence. Senior government officials do, however, participate in the implementation of such legislation; in the UK, the prime minister appoints a commissioner with a specific mandate who is in charge of monitoring how law enforcement carries out its duties and implements its jurisdiction. In addition, given the nature of the investigation, permission to observe financial activities in that nation is granted by the Crown Court or the Supreme Court. The Investigatory Powers Tribunal (IPT), a specialized court that was established to handle complaints concerning the denial of an individual’s rights and freedoms by investigators, law enforcement, or the security service, carries out the judicial review in the United Kingdom. The benefit of IPT is that it may take into account complaints, lawsuits, or other claims for actual and probable restrictions on human rights and freedoms (for example, a person’s complaints that he or she is being watched), regardless of whether such restrictions are legal, with violations, or illegal (there is a right to make appropriate orders to law). The drawback is that a complainant may not be summoned, meaning there is no automatic right to attend the hearing, and the grounds behind the decision are not disclosed (there is no legal duty for IPT to do so). It should be emphasized that the institution of investigating judges is actively used by nations like the French Republic, Switzerland, Italy, the Kingdom of Belgium, and the Kingdom of the Netherlands. This is in light of the experience of nations with a Romano-German legal tradition. The criminal procedural laws of these states have a procedural element known as an investigating judge, who deals with preliminary inquiries into criminal cases and, in particular, grants permission to undertake covert investigations without filing charges.
The investigating judge in the French criminal court system is given a broad range of abilities to carry out the majority of procedural tasks independently. According to the Criminal Procedural Code of the French Republic (Law of France, 1958), an investigating judge may, on the basis of a reasoned decision, direct judicial police officers acting pursuant to a court order to install any technical device to detect, store, transmit, or record any words said by everyone in private or confidential text in private or public places, in cars, or to capture anyone in a private setting without the consent of the subject. Specific offenses under the legislation of the European countries condition the ability and need to perform covert investigation (search) measures that are authorized by the court. Accordingly, the Criminal Procedural Code of France’s articles 70673, and 70674 lists a number of particularly dangerous crimes for which the judicial police may carry out the following operations with a judge’s approval and at the prosecutor’s request: monitoring (Article 70680), infiltration (Articles 70681–70687), intercepting phone calls and electronic correspondence (Article 70695), and video or audio monitoring of negotiations or other activities in a certain situation.
The main objective of the Convention system has always been to provide effective human rights protection. The Convention was intended to “take the first step for the collective enforcement of certain of the rights stated in the Universal Declaration [on Human Rights],” according to the Convention’s authors. The Convention is “an instrument for the protection of human beings,” in the words of the Court as well. This is further demonstrated by the commitment made by the States Parties in Article 1 ECHR, which states that they “shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.” As a result, it is obvious that the Convention’s main goal goes beyond simply granting access to the courts. It also becomes clear that the Court and the States, the two key players in the system, should prioritize facilitating substantive access to justice.
2.3 European Court of Human Rights Approach
The ECHR established the ECtHR, an international court, in 1959. The court has the authority to decide on applications from people or sovereign nations who claim that the civil and political rights outlined in the Convention have been violated. The European Convention on Human Rights (ECHR) is a global agreement for the defense of civil and political rights in European democracies committed to the rule of law. The eleven nations that had founded the Council of Europe the year before began drafting the treaty in 1950. All new members must ratify the ECHR as soon as possible. Membership in the Council implies being a party to the Convention. In addition, In its own right, the Convention became operative in 1953. The Council of Europe and the Convention have grown greatly since 1949 to include a total of 47 states and nearly 800 million people worldwide. The Court has been sitting as a full-time court since 1998, and people may apply to it directly if they can demonstrate that they have exhausted all viable legal options accessible to them in their home countries before national courts in order to voice their human rights complaints.
It makes sense to wonder what role the ECHR plays in the structure of European public order. Is it required for the entire continent of Europe and beyond? Nearly all academics emphasize in their research the Convention’s binding nature, which is ensured by its tight integration within the Council of Europe’s structure and serves as a highly effective instrument for institutional implementation and preservation of the Convention’s provisions. The renowned European Court of Human Rights is referred to here. Because of the international responsibilities assumed by States in ratifying the ECHR and its Protocols, the Convention and the ECtHR’s practice of applying it is binding. Conventional rules and court rulings are acknowledged as sources of law in European nations, and they must be taken into account while enforcing the law. All CoE members are likely familiar with this strategy due to specific aspects of their historical and cultural traditions.
States that have ratified the ECHR’s provisions unavoidably have an impact on their public policies. However, regardless of the state, the citizens of the Council of Europe member nations are certain that they will be safeguarded by the provisions of this Convention. This indicates that regardless of the legal system and legal family, all member states are subject to the same criteria for their national legislation under the terms of the Convention. The safeguarding of fundamental freedoms and human rights is one of these needs. Due to the Convention’s character and significance, the universality of its standards for the protection of human rights, and the development of the public order system, neither scholars nor any civilized nation today contest the Convention’s legal force. The national administrations of several States party to the Convention acknowledge the priority of its provisions. The Republic of Belarus and the Russian Federation are the only countries on the European continent that disagree, arguing that domestic law and the Constitution should take precedence over international law. Although this strategy is distinct, it reflects the Russian Federation’s imperial ambitions and, to some extent, its disregard for the people, robbing them of the right to protection and undermining European public order in the context of fundamental rights and freedoms.
On the other hand, Ireland was the only Contracting Party to the ECHR in 1955, when the Convention went into effect, having any significant experience with the judicial protection of fundamental rights. Such rights were either absent from the constitutions of Belgium, France, Luxembourg, the Netherlands, and the United Kingdom, or they were restricted and did not allow the judiciary to evaluate the constitutionality of laws. Germany and Italy’s newly established constitutional courts were not yet in operation. Therefore, it should come as no surprise that the majority of signatory States rejected proposals to grant the public the power to petition and to compel the European Court to exercise its authority.
The Convention is a treaty that produces laws; it establishes a system that ought to last for a very long period. The ECHR has often emphasized that the court will interpret the Convention in ways that make it an effective tool for protecting human rights because the Convention has the status of a law. By making a number of interpretation decisions that go beyond what member states agreed to when they joined the Convention, this ambitious goal is actually realized. The creation and protection of rights not included in the text of the Convention is a more drastic use of wide interpretation. The court did just that in the case of Soering v. the United Kingdom. A person’s extradition to the United States was barred in this instance because, if he were brought back, he might spend years in detention while awaiting a possible death sentence. The waiting period, according to the court, would make him feel so anxious that it would breach his right to be free from “torture or inhuman or degrading treatment. or punishment,” which is guaranteed by Article 3 of the Convention.
Although extraditing a person to a state that might participate in behavior that is prohibited by the Council of Europe is not specifically mentioned in Article 3, which does bar such treatment and has a debatable definition, it is still a possibility. When deciding that states must offer practical measures to ensure the real enjoyment of Convention rights, the ECHR likewise applied a broad construction. In the case of Airey v. Ireland, for instance, the court found that an applicant’s right to a fair trial, guaranteed by Article 6(1) of the Convention, was violated because she couldn’t afford legal representation and couldn’t effectively represent herself before a national court. Articles of the Convention that were intended to shield people from their state were seen in certain rulings as also creating positive responsibilities on the state. In Marckx v. Belgium, the court interpreted Article 8 of the Convention, which safeguards the right to a private and family life, as requiring the state to take the appropriate steps to ensure that “illegitimate” children would have a typical family life.
Additionally, the ECHR occasionally mandated that nations defend citizens from those who could transgress their rights under the Convention. In the case of X and Y v. Netherlands, an adult with mental impairment was sexually assaulted, but her father was unable to sue on her behalf due to national restrictions. Due to a lack of appropriate regulations protecting the applicants from specific criminal acts, the court found that the state had breached the Convention. In earlier rulings, the ECHR emphasized that a state cannot escape accountability for infringement by mandating that it be committed by third parties rather than by state personnel. In addition, the ECHR made the decision to extend its jurisdiction well beyond the borders of member nations. Additionally, it ruled that the Convention’s exceptions and derogations must be interpreted strictly. Recent decisions by the ECHR loosened the rules on how non-victims could petition the court, allowing NGOs to file claims on behalf of the most vulnerable individuals who have previously passed away.
2.4 The Concept of Protection of Human Rights In European Countries
Human rights and the rule of law are closely related concepts. The rule of law will not be meaningful or effective if human rights are not respected. Furthermore, if human rights are upheld, the rule of law can only be applied appropriately. Respecting the rule of law premise, in turn, ensures the preservation and advancement of human rights. Additionally, some human rights, such as the right to freedom of expression and a fair trial, cannot exist without the rule of law and are related ideas. Historically, the rule of law was created to restrain the state’s power (government). Moreover, Human rights (sometimes known as “negative rights”) were viewed as a form of defense against the intrusion of those in positions of authority. The rule of law is a universal principle widely applied at the national level, in international legal practice, and in the legal systems of other nations (such as the EU).
A standard for evaluating the caliber of human rights law is established by the rule of law. Any legal provisions, whether national or international, must be unambiguous, non-discriminatory, applied by impartial judges, and include procedural safeguards. Numerous eminent legal academics, including A. Volchenko and V.V. Mikhailenko, N.M. Onishchenko, S. Shevchuk, and Yu. S. Shemshuchenko as well as foreign experts D.V. Krasikov and N.M. Lipkina has researched the rule of law. Also, Ukrainian intellectuals like S. Holovaty and M. Koziubra have looked at the direct connection between the rule of law and human rights. Malyutin, I.A., and Nesterovych, V.F. R.O. Padalka, V. Tertyshny, and O.V. Sachko Foreign names include N.V. Varlamova and L.G. Loucaides as well as M.H. Khaustova and S.O. Yakymchuk. All of these academics stress the connection between the rule of law ideal and human rights. Maliutin suggests that this principle be seen as society’s top priority for upholding human rights and liberties. Notably, various research on these concerns has been published by international organizations, who also assisted in their publication. Petryshyn, O.V. highlights the judiciary’s key role in ensuring that this principle is applied in both directions to defend human rights. However, despite the fact that this topic has received a lot of attention, the question of applying the rule of law via the lens of human rights protection in legal theory has not yet expanded widely in scientific accomplishments.
According to this view, the recent case law of the European Court of Justice as well as recent political and legal discussions on the implications of EU membership in the ECHR as well and discussions on the drafting of the EU Charter of Rights all demonstrate the importance placed on the autonomy and supremacy of the EU’s system of protecting human rights. The Kadi case, in which the Court of Justice determined that specific EC Regulations implementing Security Council resolutions that had been adopted under Chapter VII of the UN Charter, violated fundamental rights protected under the European Community legal order, may be considered the most famous example of the autonomy of the EU’s human rights system. The Court concluded that the UN Charter’s own provisions could not take precedence over fundamental rights that were enshrined in EC legislation and frequently emphasized the independence of the EU’s constitutional framework for the defense of human rights: “The review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement”.
More importantly, however, The European Court of Justice (ECJ) was asked by the Dutch court that referred the Elgafaji case for clarification on the meaning of subsidiary protection under Article 15(c) of the EU Asylum Qualification Directive as compared to Article 3 of the ECHR as interpreted by the European Court of Human Rights in its case law. This was a much less dramatic request, but it is noteworthy for the language used by the Court. Thus, the European Court of Human Rights (ECHR) stated that the right in Article 3 of ECHR “forms part of the general principles of Community law, whose observance is ensured by the Court, and while the case-law of the European Court of Human Rights is taken into consideration in interpreting the scope of that right in the Community legal order,” As a result, it was necessary to read Article 15(c) “independently… but with due regard for fundamental rights, as they are guaranteed under the ECHR.” It is noteworthy that the ECJ insists on its formal independence from the ECHR and the relevant ECtHR case law when interpreting aspects of EU legislation.
This is not meant to imply that the EU disdains or disdains regional or international human rights law, or that the EU system is essentially alien to those systems. That is untrue, given the EU recently participated in the UN Disability Convention negotiations and signed the agreement, reaffirming its support for the values outlined in the ECHR and other human rights accords. The EU is currently not subject to regional or international human rights monitoring, with the exception of the mechanism established by the UN Disability Convention to which the EU is a party. On the other hand, the ECJ has a well-known history of being reluctant to cite and rely on other international and regional human rights treaties aside from the ECHR. Indeed, this has prompted eminent commentators to claim that the European Court of Justice is “ignoring the range of other human rights treaties” and that the EU is “estranged from the universal human rights regimes established under the UN as well as other regional instruments” because it focuses almost exclusively on the ECHR. It’s not that the EU formally rejects human rights sources that come from outside the EU; rather, the EU and ECJ at best very sporadically and inconsistently draw on such international human rights sources, and they insist that the ECJ be the final and authoritative arbiter of their meaning and impact within the EU.
‘Cs-93.Pdf’ <https://peerj.com/articles/cs-93.pdf> accessed 6 June 2023
Dana S, ‘Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing’ (2008) 99 Journal of Criminal Law and Criminology 857 <https://heinonline.org/HOL/Page?handle=hein.journals/jclc99&id=865&div=&collection=>
Delmas-Marty M and Spencer JR, European Criminal Procedures (Cambridge University Press 2002)
Dothan S, ‘The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights’ (2018) 42 Fordham International Law Journal 765 <https://heinonline.org/HOL/Page?handle=hein.journals/frdint42&id=788&div=&collection=>
Grynchak AA and others, ‘Convention for the Protection of Human Rights and Fundamental Freedoms as a Constitutional Instrument of European Public Order’ [2022] Public Organization Review <https://doi.org/10.1007/s11115-021-00583-9> accessed 8 June 2023
Karas EI, ‘CONSENSUAL JUSTICE IN CROATIAN CRIMINAL PROCEDURAL LAW: THE NEED FOR A SYSTEMATIC APPROACH’ (2020) 4 EU and comparative law issues and challenges series (ECLIC) 405 <https://hrcak.srce.hr/ojs/index.php/eclic/article/view/11910> accessed 6 August 2023
‘Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments | European Journal of International Law | Oxford Academic’ <https://academic.oup.com/ejil/article/26/4/829/2599604?login=false> accessed 5 June 2023
‘Special Investigative Measures: Comparison of the Serbian Criminal Procedure Code with the European Court of Human Rights Standards – Veljko Turanjanin, 2022’ <https://journals.sagepub.com/doi/full/10.1177/13657127211055230> accessed 6 August 2023
Sweet A, ‘On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court’ [2009] Faculty Scholarship Series <https://openyls.law.yale.edu/handle/20.500.13051/5105> accessed 6 June 2023
Tarasenko O and others, ‘Investigative Judge as a Subject to Criminal Procedure’ (2020) 23 Journal of Legal, Ethical and Regulatory Issues 1 <https://heinonline.org/HOL/Page?handle=hein.journals/jnlolletl23&id=445&div=&collection=>
‘The Road Not Taken: The European Union as a Global Human Rights Actor | American Journal of International Law | Cambridge Core’ <https://www.cambridge.org/core/journals/american-journal-of-international-law/article/abs/road-not-taken-the-european-union-as-a-global-human-rights-actor/64B3FF288E56BD3C3854645D1512DB3D> accessed 30 May 2023
Wise EM, ‘General Rules of Criminal Law’
‘Вісник НАПрНУ_Том 28(1)_2021.Pdf’ <http://visnyk.kh.ua/web/uploads/journals_pdf/%D0%92%D1%96%D1%81%D0%BD%D0%B8%D0%BA%20%D0%9D%D0%90%D0%9F%D1%80%D0%9D%D0%A3_%D0%A2%D0%BE%D0%BC%2028(1)_2021.pdf#page=33> accessed 30 May 2023
‘——’ <http://visnyk.kh.ua/web/uploads/journals_pdf/%D0%92%D1%96%D1%81%D0%BD%D0%B8%D0%BA%20%D0%9D%D0%90%D0%9F%D1%80%D0%9D%D0%A3_%D0%A2%D0%BE%D0%BC%2028(1)_2021.pdf#page=33> accessed 30 May 2023
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