I. Describe how the system has changed since the Convention was adopted in 1950 up until today in broad terms.
Prior to the 1970s, the Convention was led by a committee made up of foreign ministers from each state, who had the authority to verify and clarify conventions or agreements as well as make recommendations to state governments. Its primary purpose was to secure the freedoms such as the right to life, to a fair hearing, to respect private and/or family life; and protection of property, and freedom of expression, thought, conscience, and religion. It promised to preserve the following: the right to life, freedom from torture or terrible punishment, freedom from slavery, the right for liberty and security, the right to educate every citizen, and marriage equality. The Convention remained rather moderate in its early years, as its leaders wished to first gain the trust of governments now suspicious of any institution of enforcement.
The Convention first focused their efforts on drafting and negotiating certain economic and social rights. A European Social Charter was introduced in 1965, adding these categories to those already in place: the right to social welfare services, equal opportunity employment, safe working conditions, and the right of the elderly to social protection. During the 1970s, it gained credibility, thus admitting more applications. Along with this increased trust came the First Protocol and Protocol 2, which added rights to property, education, and free elections, and included the determination that only the Committee of Ministers can request advisory opinions, respectively. Following the first two are many others, including Protocol 4 prohibiting imprisonment for debt, Protocol 6 limiting the death penalty to wartime—a penalty later abolished by Protocol 7, which added a right to appeal a deciison in criminal matters, compensation for wrongful conviction, prohibition of double jeopardy, and spousal or marriage equality.
The individual complaint system for Europe was designed and structured from the 1950s up until 1998. The European Commission on Human Rights first stated that they would be in charge of determining whether comlaints would be heard on merits, screening for admissibility, and determining whether there are any plausible arguments regarding the violation of rights. As of 1998, the European Convention on Human Rights had built a supranational institutional system aimed at protecting and promoting human rights. This system provides individuals and states with the right to petition for redress of human rights breaches. Up until 1998, the Commission and the European Court of Human Rights both enjoyed jurisdiction under the Convention. Additionally, the protection of human rights expanded with the introduction of the European Court of Human Rights in 1950.
The structure of the European Commission on Human Rights—paired with the principles of the Margin of Appreciation and the Living Instruments doctrines—is what gives the commission the ability to focus efforts to areas that are a priority in its jurisdiction. The first principle states that domestic courts will still have a fair amount of power simply by being a member of the Council of Europe, even if they fall under the jurisdiction of the European Court of Human Rights. This ultimately allows the court enough authority to accomplish its goals without infringing upon the power of the domestic courts.
Since its creation, the European Court of Human Rights has offered more accesibility to individuals, meaning that more value is placed upon the protection of rights to citizens. Since the court appeals to XXXXXX, they XXX XXXXX a XXXX XXXXX XX XXXXXX, XXX XXXX XXXXXX overall, XXXXXXXX directly to those XXXXXXXXXXX within XXX jurisdiction. XXX court XXXXX to present XXXXXXXX, XXXXXXXX, XXX XXXXXX XXXXXXXXXX of human XXXXXX XXXXXXXX upon XXXXX other courts cannot decide, XXXXXX the chance for XXXXXXXX XX XXX XXXXX XXXXXXXXXX XX heard, addressed, and XXXXXXXX.
II. How do you XXX upon a possible XXXXXXXX of XXX system with XXX XXXXXXXXXX protocols XX XXX XX XXXXXXX XXX not XXX in force? What XX XXXXXXXX XX XX achieved by XXX XXXXXXXXXXXX of XXXXX XXX protocols?
XXXXXXXXXX XXXX recently XXX XXXXXXXXX 15—which XXXXXXX XXX application XXXXXXXX XXXXX a XXXXXXXX decision, in addiiton XX XXXXXXXX the retirement age of XXXXXX XXXX seventy XX seventy-XXXX—XXX an XXXXXXXX Protocol 16, allowing high XXXXXXXX XXXXXX XXX tribunals XXX XXXXXXX XX XXXXXXX XXXX XXX XXXXX XXXXXXX XXXXXXXX opinions XX XXX XXXXXXXXXXXXXX XXX XXXXXXXXXXXX XX XXX Convention. If Protocol 15 XX approved by each of XXX XXXXX-seven member XXXXXX, XXXXX states will be XXXXXXXXXXX XXX XXXXXXXX that XXXXX citizens are enjoying XXXXX XXXXXX and XXXXXXXX.
X XXXXX of Article X, XXXXXXXX 15 XXXXX XXXX, XXXXXXXX XXX XXXXX XXXXXXXXX a margin XX appreciation XXXX state parties XXX Convention XXXXXX, it has not been XXXXXXXXXX XXXX this XXXXXXXX does not or XXX XXX apply at all depending XX the XXXXXX of aspects of XXXXX XXXXXX. The XXXXXX of appreciation tehrefore &XXXXX;depends on XXX circumstances XX the XXXX XXX XXX XXXXXX and freedoms XXXXXXX&XXXXX; (XXXXX Protocol 15). XXX XXXX jurispudence that allows XXX a XXXXXX XX appreciation XX the XXXX that XXXX confirms XXXX XXX doctrine of XXX XXXXXX of appreciation does not or can XXX XXXX XX XXX in XXXXXXX of Convention XXXXXX or XXXXXXX XX rights. When a XXXXXX of appreciation XX defined, the XXXXX XXXX XXXXXXXXX XXXXXXXX that XXX margin XX XXX XXXX, and XX XXXXX XXXXX XXXXXXXX XXXXXXX it is too XXXXXX. XXXXXXXX 15 XX open to interpretation XXXXXXXXX XX XXX XXXX or XXXXXX XX XXX XXXXX’s XXXXXXXX, XXXXXXXXXXXX when it XX asserted to XXX implementation of XXX XXXXXXXXXX rights XXX XXXXXXX states XXXXX a margin of XXXXXXXXXXXX&XXXXX; (Draft XXXXXXXX XX). XX this is the XXXX, XXXX the XXXXXXXXXX is essentially ignoring that no margin of appreciation XXXXXX in regards to the implementation XX provisions XXXX those dealing with XXXXXXX, punishment, or XXXXXXX.
Protocol XX XXXXXXXXX created an XXXXXXXXX between the parties to XXX domestic XXXXXXXXXXX in XXXXXXXXX where the State XXXXXXXXX is one of the parties XX XXXXXX XXXXXXXX proceedings. It was XXXXXX later XX XXXXXXX that XXX XXXXXXX to XXX domestic XXXXXXXXXXX are XX XX invited XX XXXXXX XXXXXXX XXX XXXX contributions, or participate in any hearing.
III. XXXX do you XXXXX will XX the effect XX these additional XXXXXXXXXXXXX?
The XXXXXX(s) XX Protocols 15 and 16, XX XXXXXXXX, the first XXXXX effectively allow XXXXXXXX XXXXXX XX handle XXX human rights XXXXXXXX, XXXXX XXX second would XXXXX the court to XXXX XXXXXXXX opinions XXX XXX very XXXXX time—XXXXXXX said advisory opinions XXXXXXXX toward a state&XXXXX;s XXXXX XXXXXX of human XXXXXX XXXXXXXX or XXXXXXXXXX—XXX XXXXXXX enforcement a XXXXXXXX XXXXX. XXXXXXXXXX XXXXX XXXXX be XXXXXXXX XX national appellate XXXXXX, followed with a review by XXX judges. Member state courts XXXXX be XXXXXXXXXXX for XXXXXXXXXXXX XXX XXXXXXXX XXX XXXXXXXX of the judges; XXXXX XXXXXXXX will XXXXX XXXXXX to XXXXXXX XXXXXXXXXX at the XXXXX XXXXX.
References
European Court of XXXXX XXXXXX, 2015,available XXhttp://echr-XXXXXX.info/echr
XXXXXXXXXXXX. 4 June 2015.
XXXXX, XXXX X, European Human Rights Law: XXXX and XXXXXXXX, 2000.
XXXXX NGO comments XX the drafting of Protocols XX and XX to the European Convention XXX
the Protection of XXXXX Rights and Fundamental XXXXXXXX, XXXX, XXXXXXXXX XX http://www.XXXXXXXXXX.XXX/XXXX/XXXXX/Joint_Ngo_Submission_on_Protocols_15_and_16_to_ECHR_16_Nov_2012.pdf. 4 XXXX 2015.
Kanstantsin XXXXXXXXXXX,XXXXXXXX XXXXXXXXX and the XXXXXXXXX Interpretation XX the
European XXXXXXXXXX XX Human Rights, XX German XXX XXXXXXX 1730-XXXX (2011),XXXXXXXXX XXhttp://www.germanlawjournal.com/index.php?XXXXXX=11&artID=XXXX.4 XXXX XXXX.
Reform XX the European human XXXXXX system, 2004, Applying XXX XXXXXXXXXXX XXX ECHR,
available XX XXXX://www.XXX.int/t/XXXX/XXXXXXXXXXXXXXX/XXXX/Publications/osloseminar_e.XXX. X June 2015.
Steiner, XXXXX X. And Alston, XXXXXXX, XXXXXXXXXXXXX XXXXX Rights in XXXXXXX: XXX, XXXXXXXX,
Morals, 2000, XXXXXX XXXXXXXXXX XXXXX.
XX, Sarah,Respect XXX fundamental rights in the XXXXX, European XXXXXXXXXX
(2015),XXXXXXXXX at http://XXX.europarl.XXXXXX.eu/atyourservice/en/displayFtu.XXXX?ftuId=FTU_2.1.X.XXXX. 5 June XXXX.
QUESTION 2
XXX Case XX XXXXXXXXX XXX XXXXXX v. XXXXXX
I. XXXX a XXXXX background XX the XXXX including the XXXXXXXXXXXXX of XXXXXXXXXXXX XXX XXXXX XXXXX XX XXXX a complaint XXXX the European Court of Human XXXXXX, XXXXXXX also reference the XXXXXX XXXXXXX XX be allowed XX XXXX a complaint.
XXX applicants XXXX convicted XX agitation against a group of persons with allusion XX XXXXXX XXXXXXXXXXX, XXX XXXXXXXXX claimed XXXX Article XX of XXX XXXXXXXXXX had XXXX XXXXXXXX, XXXXXXX that XXXXX leaflets XXX not XXXXXXX nor express XXXXXXXX XXX homosexuals. XXX applicants attempted to argue that a restriction XX XXXXX freedom XX XXXXXXXXXX is unjustified XXX has XX XXXXX basis for XXXXX. They XXXXXXX that XXXXX XXXXXXXXX for XXXXXXXXXXXX the XXXXXXXX was XX spark a XXXXXX about XXX XXXX XX objectivity in XXXXXXX education. XXX Fifth Section XX XXX Court at first XXXXXXXXX the XXXXXXXXXXX, concluding that no violation XX Article 10 XXX XXXXX place. The judges then XXXXX that Article 10 protects XXX XXXXXXXXXXX, XXXXXXX it’s XXXXXXXXX to be XXXX or bad.
The judges concurred XX a XXX XXXXXX. XXX was brought up XX Judge Spielmann, who XXXX XXXX to XXXXXX XXX XXXXXXXX XXXX XXXX XXXXXX, in the meaning of the XXXX law, XXXXX XXXXXXX much XXXX XXXXXXXXXXXXX. A XXXXXX was the idea that this speech XXXXXXXX discrimination in XXXXXXXXXXX XXXXXXXX.
The XXXXXXX Supreme XXXXX XXXXXX have performed a XXXXXXXX analysis of XXX XXXX XX the speech, and XXXXXXX or not XXXXX was a specific motive or aim XXXXXX it. Another was that XXX XXXXXXX XXXXXXX XXXXX’s XXXXXXX XXXXXXXXXX XXXX unreasonably hateful or XXXXXXXXX constituted a very XXXXX test, one XXXXXXXXXXXX XXXX XXXXXXX case law in XXXXXXX of expression XX XXXX XX in XXX XXXXXXX of information and XXXXXXXXXXX that XXXXXXX.
XXXX XX XXX first time the XXXXX XXX XXXXX XX XXXXXXX 10, particularly in the contexts XX the freedom of XXXXXXXXXX and XXXX-XXX XXXXXXX. Every applicant was fined and XXXXX a suspended XXXXXXXX, XXXXXXX one other, XXX was XXXXXXXXX to probation. XXXX the XXXXXXX XXXXXXX Court XXXXXXXXXX XXX XXXXX XX whether or XXX XXXXXXXXXXXX XXX a necessity, it XXX noted and approved that the Swedish XXXXXXX XXXXX acknowledged the XXXXXXXXX’s XXXXXXX to XXXXXXX XXXXX ideas XXXXX XXXX XXXXXXXXX the XXXX XXXX, along XXXX freedoms and rights come XXXXXXXXXXX. One XXXX obligation is to avoid XXXXXXXXXX that are deemed offensive to others, which constitutes an XXXXXXX XX an indiividual’s rights.
II. XXXX XXXXXXXXX of rights XX XXXXXXXXXXXX XXXXX XXX what XXXXX XXXXX XX XXXX XXXX for XXXXX claims?
XXX legal XXXXX XXX XXX claim XX XXX evidence XXXXXXXXX by the Court that sexual orientation XXX gender XXXXXXXX XXXXXX XX XXXXXXX in XXX same XXX XX race, XXXXXXXXX, and XXXXXXXX. These XXXXX are already covered XX XXXX speech XXX XXXXX laws, XX XXXX are XXXXXXXXX XX an XXXXXXXXXX&XXXXX;s XXXXX of XXXX, XXX XX XXXXX XXXX XX a marker XX XXXXX XXXXXXXX (XX 2015). XXX XXXXXX XXXXXXXXX that XXXXXX XXXXXXXXXXX XXX XXXXXX XXXXXXXX should XX XXXXXXXXX, as this area is XXXXXXXXXX XXXX the “XXXX-XXXXXXXXXXX XXXXXXXXXXXX in this area,&XXXXX; (Sy XXXX) as well XX XXX XXXXX’s duty XX give practical XXX effective XXXXXXXXXX XXXXXXX human rights violations.
The XXXXXXXXXX in XXXXXXXX had XXXXXXX a XXXXXXXXX school—not XXXXX own&XXXXX;and XXXXXXXXXXX XXXXXXXX that XXXXXXX homosexuality as a &XXXXX;deviant sexual XXXXXXXXXX” that has a “morally destructive XXXXXX on XXX XXXXXXXXX XX XXXXXXX” (XX, XXXX). XXX leaflets were XXXXXXXXXXXX left in, XX, or nearby XXXXXXX of young, impressionable—XXXXXXXXX XX a XXXXX—XXXXXXXX. XX XXX XXXXX that XX applicants XXXXXXXX or had XXXXXXXXXX XXXXXXXX XXXX XXXXXX, so that they were never XXXXX XXX initial XXXXX XXX freedom XXX free access to that XXXXXXXXXX school. They also XXXXXXX that XXXX XXX a right to freedom of XXXXXXXXXX, in XXXXXXXXX XXXX Article 10 of the European Convention XX Human Rights.
XX XXX XXXXXXXXXX, the XXXXXX XXXX sure XX XXXX that members XX XXX XXXX XXXXXXXXX face hostility XXXXXXXXXX the XXXXX; XXX that, in educational XXXXXXXXXXXX XXX organizations, exists a &XXXXX;XXXX problem of homophobic and transphobic XXXXXXXX and XXXXXXXXXXXXXX,&XXXXX; XXXXX XX an XXXXXXXXX acknowledgement XXXX XXXXXXXXXX to XXXXXXX restrictions in XXX XXXX XX XXXXXXX XX XXXXXXXXXX (XX XXXX). Through its XXXXXXXX, XXX XXXXX reaffirms XXX XXXX that discrimination based on XXXXXX XXXXXXXXXXX XXX gender identity XXXXXX XX taken XX seriously XX XXXXXXXXXXXXXX based XX XXXX, XXXXXX or XXXXXX.
III. Describe XXX outcome XX XXX XXXX XXX XXXX XXXX XX XXXXXXXXXX XXX a XXXXXXXXXXX XXXXXXXXXXX XX the XXXXXXX of XXXXXXXXXX XX be at XXXX.
XXX outcome XXX XXXX case was Article XX(X) XX XXX XXXXXXXXXX, which XXXXXX XXXX XXXXXXXX has the right to freedom of XXXXXXXXXX, XXXXXXX XX exemption in Article XX(2), or formalities, XXXXXXXXXX, XXXXXXXXXXXX, or penalties as XXXXXXXXX XX XXX law XXX necessary for a XXXX-functioning XXXXXXXXXX society, particularly XXX XXXX XXXXXXXX XXX XXXXXXXX XXXXXXX XXX protection XX XXX XXXXXXXXXX or rights XX XXXXXX. XXX Court XXXXXXXX XXXX “XXXXXXXXXXXXXX based on XXXXXX XXXXXXXXXXX XX XX serious XX discrimination XXXXX XX &XXXXX;race, XXXXXX or XXXXXX&XXXXX;”.6 Based XX these XXXXXXXXXXX, the XXXXX XXXX that no XXXXXXXXX of XXXXXXX 10 had taken place.
XXXXXXXXX criticised the XXX XXXXXXXXX more thoroughly XXXXXXX XXX XXXXXXXXXX’ XXX XXX underlying aim to degrade, insult or XXXXXX hatred against XXXXXXX on XXX basis of their XXXXXX orientation. He XXXXXX that XXX “XXXXXXXXXXXXX XXXXXXXXX” test applied by XXX Supreme XXXXX was far XXX vague XXX XXXX XXX accord sufficient and XXXXXXXX XXXXXXXXXX XX the freedom XX XXXXXXXXXX.
XX addition to its rule as to the seriousness of discrimination XXXXX on XXXXXX orientation or XXXXXX identity; the XXXXX XXXX noted XXXX XXX XXXXXXXXX XXXXX XX XXX XXXXXXXXXX were XXX XXXXXXXXX by any means, and thus XXX XXX XXXXXX XXXXXXX 10. The Court XXXXXXXXXX XXXX XXX test to XX applied is XXXXXXX or XXX XXX restriction on XXX XXXXXXXXXX’ freedom XX XXXXXXXXXX was proportionate XX XXX legitimate XXX XX protecting XXX XXXXXXXXXX XXX XXXXXX of homosexuals in a group. XX was conceded in XXX XXXX that the XXXXXXXXXX of the applicants XXXXXXXXXXX a XXXXXXXXXXX on XXXXX freedom XX XXXXXXXXXX. XXX issue XXX XXXXXXX such restriction could XX justified on the basis XX the exception in XXXXXXX XX(X). XXX XXX first XXXX, the XXXXX XXXXXXX XXXXXXXXXXX and principles developed in XXXXXXXX XX XXXX XXXXXX in XXX context XX XXXXXX orientation and XXXXXX XXXXXXXX.
When making a XXXXXXXX, the XXXXX XXXX XXXXXXXX XXX XXXXXXXXXXXXX of XXX expression and the XXXXXXX XXXXXXX, while simultaneously considering XXX XXXXXXX of XXX XXXXXXXXXX XXXXXX. The XXXXXXXXXXXXX XX the expression XXX that: it XXXX place XX a school, court XXXXXXXXXX the XXXXXXX to XX XXXXXXX, XXX that XXXX of XXX XXXXXXXXXX XXXX imprisoned. In XXXXXXXXXXX the content XX the XXXXXXXXXX, XXX applicants claimed the content was XXXXXXXXXX XXX deemed XXXXXXXX of XXXXXXXXXX; XXX, although the leaflets XXX not directly advise individuals XX XXXXXXX or XXXXXX XXX hateful XXXX, they XXXX in XXXX very XXXXXXXXXXX. In XXXXXXXXXX with this XX XXX Court’s statement XXXX XXXXXXX on XXXXXXXXXXX XX XXXXXX hatred or XXXXXXXX does not necessarily entail a call for XXXXXX of those XXXXXX. The XXXXXXXXXX of XXXXXXXXXXXXXX XXX XXXXXXXX XXX idea that a person or persons XXX be XXXXXXXX.
It XX easy to understand XXX XXX XXXXXXX XX XXXXXXXXXX cannot XXXXXX be protected in every XXXXXX XXXXXXXXXXXX, primarily because humans XXX inclined to coin XXXXXXXXXXX or ideas with which XXXX do not agree as completely unacceptable, and XXXX XXXXXX protected expression. It is impossible for XXXXXXXXXXX to XXXXXXX XXX regular their own conduct in order XX make XXXX aware of XXXX types XX speech XXX protected XXX which XXX not. XXXXXXX XX XXXX, XXX XXXXX had the XXXXXXX to dismiss the case XXXXX XX XXX XXXXXXXXXXXXX XXXXXX than XXXXXXX XX XXXXXX speech that XX deemed unworthy XX protection.
Alexandra XXXXXX, Anti-XXX XXXX XXXXXX: Vejdeland and Others v. XXXXXX (2/14/XXXX),
available XXhttp://strasbourgobservers.com/2012/XX/14/XXXX-XXX-hate-XXXXXX-XXXXXXXXX-XXX-XXXXXX-v-XXXXXX. 4 XXXX 2015.
XXXXXXXXXX against XXXXXXX XXX Other XXXXX, Inhuman or XXXXXXXXX Treatment or Punishment
Distr, XXXXXXXXX XXXXXXX XXXXXXX, (11/26/2008), avaiable at XXXX://XXXX.XXX.edu/XXXXXXXX/XXX/XXXXXXXXX/326-2007.html. 5 XXXX 2015.
Court XXXXX Sweden in XXXXXXXXXX XXXXXXXX XXXXXXX, XXXXXXXX Convention XX Human XXXXXX
(X/X/XXXX), XXXXXXXXX XX XXXX://XXX.XXXXXXXXXXXXXXXXX.org/2012/XX/court-XXXXX-sweden-in-XXXXXXXXXX-leaflet-XXXXXXX/. 5 June 2015.
XXXXXXXXXXXXXX and XXXX speech XX XXX basis XX XXXXXX orientation: is it XXXXXXXXX XX freedom XX
XXXXXXXXXX?, XXXXX Rights XXX XXXXXX (2/9/XXXX), available at http://XXXX.org.au/XXXXXXXXX-XXX-v-sweden-2012-echr-242-9-XXXXXXXX-2012. 4 XXXX XXXX.
Eskerie, XXXXXX. Strasbourg XXXXX XX XXXX-XXX XXXXXX XXX the XXXXX time (3/13/XXXX), XX Human
Rights Blog, XXXXXXXXX at http://ukhumanrightsblog.XXX/XXXX/XX/XX/XXXXXXXXXX-rules-XX-anti-gay-XXXXXX-XXX-XXX-XXXXX-time. X June XXXX.
Vejdeland XXX Others v. XXXXXX: Hate XXXXXX XXX XXXXXXX 10 XXXX, XXXXXXXX Defense XXXX,
2012, available XX http://XXX.adfmedia.XXX/files/2012-04-12_Vejdeland_Update.pdf. X June 2015.