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 XX XXXXXX, XXXX XXX XXXXX a wide array of issues, and more XXXXXX overall, reaching XXXXXXXX to those XXXXXXXXXXX XXXXXX its XXXXXXXXXXXX. The XXXXX XXXXX to present relevant, XXXXXXXX, XXX timely protection of XXXXX rights XXXXXXXX upon XXXXX XXXXX courts XXXXXX XXXXXX, giving the XXXXXX XXX citizens to XXX XXXXX XXXXXXXXXX XX XXXXX, addressed, and resolved.
II. XXX XX you XXX upon a XXXXXXXX revision XX the system XXXX XXX additional protocols XX XXX 16 adopted but not yet in force? What XX expected XX XX achieved by XXX XXXXXXXXXXXX of XXXXX XXX protocols?
Introduced more recently XXX XXXXXXXXX XX—which XXXXXXX XXX XXXXXXXXXXX XXXXXXXX after a XXXXXXXX XXXXXXXX, in XXXXXXXX to changing the XXXXXXXXXX age XX judges from XXXXXXX to seventy-four&XXXXX;and an optional Protocol XX, XXXXXXXX XXXX domestic courts and tribunals XXX XXXXXXX XX request XXXX XXX XXXXX provide advisory opinions XX the XXXXXXXXXXXXXX XXX XXXXXXXXXXXX of XXX Convention. XX Protocol 15 is XXXXXXXX XX each of XXX forty-XXXXX XXXXXX XXXXXX, these states XXXX XX responsible XXX ensuring that XXXXX XXXXXXXX XXX enjoying XXXXX XXXXXX XXX XXXXXXXX.
X draft XX Article X, Protocol 15 XXXXX XXXX, although the XXXXX XXXXXXXXX a XXXXXX XX XXXXXXXXXXXX with XXXXX parties and Convention XXXXXX, it XXX XXX XXXX XXXXXXXXXX XXXX XXXX doctrine does not or XXX not XXXXX at all XXXXXXXXX XX XXX rights XX XXXXXXX XX XXXXX XXXXXX. XXX margin XX appreciation tehrefore &XXXXX;depends on the XXXXXXXXXXXXX XX XXX XXXX XXX the rights and freedoms engaged&XXXXX; (Draft Protocol XX). XXX XXXX XXXXXXXXXXXX that XXXXXX XXX a margin XX XXXXXXXXXXXX XX the same XXXX XXXX XXXXXXXX XXXX the doctrine XX the XXXXXX of XXXXXXXXXXXX does XXX or can not XXXX XX all in XXXXXXX XX XXXXXXXXXX rights or XXXXXXX of XXXXXX. When a XXXXXX of XXXXXXXXXXXX XX XXXXXXX, the XXXXX will XXXXXXXXX XXXXXXXX that XXX margin XX too wide, and XX other XXXXX XXXXXXXX whether it XX XXX XXXXXX. XXXXXXXX 15 XX XXXX XX interpretation XXXXXXXXX to the idea or ideals XX XXX XXXXX&XXXXX;s XXXXXXXX, specifically when it is XXXXXXXX to the implementation XX XXX XXXXXXXXXX XXXXXX XXX freedom states XXXXX a margin of appreciation” (Draft Protocol XX). XX XXXX XX XXX XXXX, XXXX XXX Convention XX essentially XXXXXXXX XXXX no margin of appreciation XXXXXX in regards to the implementation XX provisions like XXXXX XXXXXXX with XXXXXXX, punishment, or slavery.
Protocol XX initially created an imbalance XXXXXXX the parties XX XXX domestic proceedings in XXXXXXXXX XXXXX XXX State XXXXXXXXX is XXX XX XXX parties to XXXXXX XXXXXXXX proceedings. It XXX edited later to include XXXX all parties XX XXX domestic XXXXXXXXXXX XXX XX be invited to XXXXXX written and oral XXXXXXXXXXXXX, or XXXXXXXXXXX in XXX XXXXXXX.
III. XXXX XX you XXXXX will be XXX effect of XXXXX XXXXXXXXXX possibilities?
XXX effect(s) XX Protocols 15 and 16, if XXXXXXXX, the XXXXX would XXXXXXXXXXX allow XXXXXXXX courts to handle XXX human XXXXXX XXXXXXXX, XXXXX the XXXXXX XXXXX allow the XXXXX XX give XXXXXXXX opinions for the very first time—without XXXX advisory opinions counting XXXXXX a state’s XXXXX number of XXXXX XXXXXX XXXXXXXX or XXXXXXXXXX&XXXXX;and overall enforcement a national issue. Particular cases XXXXX be referred by XXXXXXXX XXXXXXXXX XXXXXX, followed XXXX a XXXXXX XX the judges. XXXXXX state courts would XX responsible XXX XXXXXXXXXXXX XXX applying XXX XXXXXXXX XX the judges; XXXXX XXXXXXXX will allow XXXXXX XX XXXXXXX resolution at XXX state XXXXX.
References
XXXXXXXX Court XX XXXXX XXXXXX, 2015,XXXXXXXXX athttp://echr-online.XXXX/XXXX
introduction. 4 XXXX XXXX.
Janis, XXXX X, European XXXXX Rights XXX: Text and XXXXXXXX, 2000.
XXXXX NGO XXXXXXXX XX XXX drafting XX XXXXXXXXX XX XXX XX XX XXX European XXXXXXXXXX for
XXX Protection XX Human XXXXXX XXX Fundamental Freedoms, 2012, XXXXXXXXX XX http://XXX.airecentre.XXX/XXXX/files/XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.pdf. X June 2015.
Kanstantsin XXXXXXXXXXX,XXXXXXXX XXXXXXXXX and the XXXXXXXXX Interpretation of XXX
European XXXXXXXXXX XX XXXXX Rights, 12 German Law XXXXXXX 1730-XXXX (2011),available XXXXXX://XXX.germanlawjournal.XXX/index.XXX?XXXXXX=11&XXX;artID=XXXX.4 June 2015.
Reform XX XXX XXXXXXXX human XXXXXX system, XXXX, Applying XXX XXXXXXXXXXX XXX ECHR,
XXXXXXXXX XX XXXX://XXX.coe.XXX/t/dghl/XXXXXXXXXXXXXXX/cddh/XXXXXXXXXXXX/osloseminar_e.pdf. X XXXX XXXX.
Steiner, Henry J. And Alston, XXXXXXX, XXXXXXXXXXXXX Human Rights in Context: Law, XXXXXXXX,
Morals, XXXX, Oxford XXXXXXXXXX Press.
XX, XXXXX,XXXXXXX XXX fundamental rights in the XXXXX, XXXXXXXX XXXXXXXXXX
(2015),available XX XXXX://XXX.europarl.europa.XX/atyourservice/en/XXXXXXXXXX.html?XXXXX=XXXXX.1.2.html. 5 XXXX 2015.
QUESTION 2
The Case of Vejdeland and Others v. XXXXXX
I. Give a brief XXXXXXXXXX to the case XXXXXXXXX XXX determination XX complainants and their right to XXXX a complaint with XXX European Court XX Human XXXXXX, include also XXXXXXXXX XXX XXXXXX XXXXXXX to XX XXXXXXX XX file a complaint.
The XXXXXXXXXX XXXX XXXXXXXXX of XXXXXXXXX against a group XX XXXXXXX XXXX allusion XX sexual XXXXXXXXXXX, XXX XXXXXXXXX XXXXXXX that XXXXXXX XX of XXX XXXXXXXXXX had been violated, XXXXXXX that their leaflets did XXX portray nor express contempt for XXXXXXXXXXX. The applicants XXXXXXXXX XX argue XXXX a XXXXXXXXXXX XX XXXXX XXXXXXX XX XXXXXXXXXX XX XXXXXXXXXXX XXX XXX XX XXXXX basis for XXXXX. They claimed that XXXXX XXXXXXXXX XXX distributing the leaflets XXX XX spark a XXXXXX about the XXXX XX objectivity in XXXXXXX education. The Fifth Section of the Court XX XXXXX dismissed the XXXXXXXXXXX, XXXXXXXXXX that XX violation XX Article 10 XXX taken XXXXX. The judges then noted that XXXXXXX 10 protects all information, whether it’s perceived XX be XXXX or bad.
The judges XXXXXXXXX XX a XXX things. One XXX XXXXXXX up by Judge Spielmann, XXX XXXX XXXX to equate the XXXXXXXX XXXX hate speech, in the XXXXXXX of the case XXX, XXXXX XXXXXXX much XXXX justification. A XXXXXX XXX the XXXX that this speech involved XXXXXXXXXXXXXX in educational settings.
The Swedish Supreme Court should XXXX performed a detailed analysis of the XXXX of the XXXXXX, and XXXXXXX or XXX there XXX a specific motive or aim XXXXXX it. Another was XXXX XXX Swedish XXXXXXX XXXXX’s finding statements were XXXXXXXXXXXX XXXXXXX or XXXXXXXXX constituted a very XXXXX test, one inconsistent with current case law in XXXXXXX XX expression as well as in the freedom XX XXXXXXXXXXX XXX XXXXXXXXXXX XXXX offends.
This is the XXXXX XXXX the Court XXX ruled XX XXXXXXX XX, particularly in the contexts XX the XXXXXXX of XXXXXXXXXX XXX XXXX-gay XXXXXXX. Every XXXXXXXXX was fined and XXXXX a XXXXXXXXX XXXXXXXX, besides XXX other, who was sentenced to XXXXXXXXX. When XXX XXXXXXX XXXXXXX XXXXX approached the topic of whether or XXX interference was a necessity, it XXX noted and XXXXXXXX that XXX Swedish XXXXXXX Court acknowledged the applicant’s freedom to XXXXXXX their XXXXX XXXXX XXXX hammering the XXXX XXXX, XXXXX XXXX XXXXXXXX XXX rights come XXXXXXXXXXX. XXX XXXX obligation XX XX XXXXX statements that XXX XXXXXX XXXXXXXXX to XXXXXX, which XXXXXXXXXXX an XXXXXXX on an XXXXXXXXXXX&XXXXX;s XXXXXX.
II. XXXX XXXXXXXXX XX rights do XXXXXXXXXXXX XXXXX and XXXX XXXXX basis XX they XXXX XXX XXXXX claims?
XXX XXXXX basis for XXX claim is the evidence XXXXXXXXX by XXX Court that XXXXXX XXXXXXXXXXX XXX XXXXXX identity XXXXXX XX XXXXXXX in the XXXX XXX XX XXXX, XXXXXXXXX, XXX XXXXXXXX. These XXXXX XXX already covered by XXXX speech XXX crime laws, XX XXXX are pertinent to an indiivdual’s XXXXX XX self, and XX XXXXX XXXX XX a XXXXXX XX group XXXXXXXX (XX XXXX). XXX XXXXXX XXXXXXXXX that XXXXXX orientation XXX gender XXXXXXXX XXXXXX be XXXXXXXXX, XX XXXX XXXX is XXXXXXXXXX XXXX XXX &XXXXX;XXXX-XXXXXXXXXXX XXXXXXXXXXXX in XXXX area,&XXXXX; (Sy XXXX) as well XX XXX Court&XXXXX;s XXXX to give XXXXXXXXX XXX XXXXXXXXX protection XXXXXXX human rights violations.
The XXXXXXXXXX in XXXXXXXX had entered a secondary XXXXXX—XXX their own—XXX XXXXXXXXXXX leaflets XXXX defined XXXXXXXXXXXXX as a &XXXXX;deviant sexual proclivity” XXXX has a “XXXXXXX destructive XXXXXX XX XXX XXXXXXXXX of society” (Sy, 2015). XXX leaflets were XXXXXXXXXXXX XXXX in, on, or nearby XXXXXXX of XXXXX, impressionable—XXXXXXXXX XX a XXXXX&XXXXX;XXXXXXXX. XX was XXXXX that XX applicants attended or had previously attended XXXX school, so that they XXXX never XXXXX the XXXXXXX right and freedom XXX XXXX XXXXXX to XXXX particular school. XXXX XXXX XXXXXXX XXXX XXXX had a XXXXX to freedom of XXXXXXXXXX, in XXXXXXXXX XXXX Article 10 of XXX European Convention on Human XXXXXX.
At XXX XXXXXXXXXX, XXX judges made XXXX to XXXX that XXXXXXX of XXX LGBT XXXXXXXXX XXXX XXXXXXXXX XXXXXXXXXX XXX XXXXX; XXX XXXX, in XXXXXXXXXXX institutions XXX XXXXXXXXXXXXX, exists a &XXXXX;real XXXXXXX of homophobic and XXXXXXXXXXX XXXXXXXX XXX discrimination,” XXXXX is an important XXXXXXXXXXXXXXX when attempting XX XXXXXXX XXXXXXXXXXXX in XXX XXXX XX XXXXXXX of XXXXXXXXXX (Sy 2007). XXXXXXX XXX XXXXXXXX, The Court reaffirms XXX idea that XXXXXXXXXXXXXX XXXXX on XXXXXX orientation and gender identity should be XXXXX XX seriously as XXXXXXXXXXXXXX XXXXX on race, XXXXXX or XXXXXX.
III. XXXXXXXX XXX XXXXXXX XX the case XXX XXXX XXXX XX considered XXX a XXXXXXXXXXX restriction XX XXX freedom of XXXXXXXXXX XX XX at XXXX.
The XXXXXXX XXX XXXX case XXX XXXXXXX XX(X) XX XXX XXXXXXXXXX, which states XXXX XXXXXXXX XXX XXX right XX XXXXXXX of XXXXXXXXXX, subject to exemption in Article XX(2), or formalities, XXXXXXXXXX, restrictions, or penalties XX XXXXXXXXX by XXX law XXX necessary for a XXXX-XXXXXXXXXXX XXXXXXXXXX XXXXXXX, XXXXXXXXXXXX XXX that XXXXXXXX its XXXXXXXX XXXXXXX the protection of the reputation or rights of others. The XXXXX stressed that &XXXXX;XXXXXXXXXXXXXX based on sexual XXXXXXXXXXX is XX XXXXXXX as XXXXXXXXXXXXXX based XX ‘XXXX, origin or colour&XXXXX;”.X XXXXX on these assessments, XXX Court XXXX XXXX XX violation XX Article 10 had taken XXXXX.
Spielmann criticised XXX XXX examining more XXXXXXXXXX whether the XXXXXXXXXX&XXXXX; had XXX underlying XXX to XXXXXXX, insult or XXXXXX hatred XXXXXXX XXXXXXX on the basis of XXXXX sexual orientation. XX argued XXXX XXX &XXXXX;XXXXXXXXXXXXX XXXXXXXXX&XXXXX; XXXX XXXXXXX XX the Supreme XXXXX XXX far too vague and does XXX accord XXXXXXXXXX and XXXXXXXX protection to the freedom of XXXXXXXXXX.
In XXXXXXXX to XXX XXXX as to XXX XXXXXXXXXXX XX XXXXXXXXXXXXXX XXXXX on XXXXXX orientation or gender identity; XXX Court XXXX XXXXX XXXX the XXXXXXXXX XXXXX XX XXX applicants XXXX XXX XXXXXXXXX XX XXX means, and XXXX did not XXXXXX Article 10. The Court XXXXXXXXXX that XXX XXXX to XX applied is whether or XXX the restriction on the applicants’ freedom XX expression XXX XXXXXXXXXXXXX to the XXXXXXXXXX XXX of protecting XXX XXXXXXXXXX and rights XX homosexuals in a group. XX was conceded in XXX XXXX XXXX the conviction XX the applicants constituted a XXXXXXXXXXX on XXXXX XXXXXXX of XXXXXXXXXX. The XXXXX was XXXXXXX such restriction XXXXX XX justified on the basis XX XXX XXXXXXXXX in Article 10(2). For the XXXXX XXXX, the XXXXX XXXXXXX foundations and XXXXXXXXXX developed in XXXXXXXX XX hate XXXXXX in XXX XXXXXXX XX sexual orientation and XXXXXX XXXXXXXX.
XXXX XXXXXX a XXXXXXXX, XXX Court XXXX consider XXX circumstances of the XXXXXXXXXX XXX the XXXXXXX XXXXXXX, while XXXXXXXXXXXXXX XXXXXXXXXXX the content of the XXXXXXXXXX itself. The circumstances XX the XXXXXXXXXX XXX that: it took place XX a school, court XXXXXXXXXX XXX XXXXXXX to be imposed, and XXXX none XX XXX XXXXXXXXXX XXXX imprisoned. In XXXXXXXXXXX the content of the expression, XXX XXXXXXXXXX XXXXXXX XXX content XXX irrelevant and XXXXXX unworthy of protection; XXX, XXXXXXXX XXX leaflets XXX XXX directly advise XXXXXXXXXXX to embrace or commit any hateful acts, they XXXX in XXXX very prejudicial. In XXXXXXXXXX XXXX XXXX XX the Court&XXXXX;s statement XXXX XXXXXXX on XXXXXXXXXXX XX XXXXXX hatred or XXXXXXXX XXXX XXX XXXXXXXXXXX entail a call XXX XXXXXX of those XXXXXX. XXX definition XX discrimination XXX includes the idea XXXX a XXXXXX or XXXXXXX can be XXXXXXXX.
It XX XXXX XX understand why XXX freedom of XXXXXXXXXX XXXXXX XXXXXX be XXXXXXXXX in every XXXXXX XXXXXXXXXXXX, primarily XXXXXXX humans XXX inclined to XXXX XXXXXXXXXXX or XXXXX XXXX which they do not XXXXX as completely XXXXXXXXXXXX, XXX thus beyond protected XXXXXXXXXX. It is XXXXXXXXXX for individuals to XXXXXXX XXX XXXXXXX their own conduct in order to XXXX them XXXXX XX what types XX speech XXX protected and XXXXX XXX XXX. XXXXXXX XX XXXX, XXX XXXXX XXX XXX grounds XX dismiss the case based on XXX circumstances XXXXXX XXXX XXXXXXX to define speech XXXX XX deemed XXXXXXXX of XXXXXXXXXX.
XXXXXXXXXX
XXXXXXXXX XXXXXX, XXXX-Gay XXXX XXXXXX: XXXXXXXXX and XXXXXX v. Sweden (X/14/2012),
XXXXXXXXX XXXXXX://strasbourgobservers.com/2012/XX/14/XXXX-gay-hate-XXXXXX-XXXXXXXXX-XXX-XXXXXX-v-XXXXXX. X June 2015.
XXXXXXXXXX against XXXXXXX and XXXXX XXXXX, XXXXXXX or XXXXXXXXX Treatment or XXXXXXXXXX
Distr, Committee XXXXXXX Torture, (XX/XX/XXXX), XXXXXXXX at http://XXXX.XXX.edu/XXXXXXXX/cat/XXXXXXXXX/XXX-XXXX.XXXX. 5 June XXXX.
XXXXX XXXXX XXXXXX in XXXXXXXXXX leaflets dispute, XXXXXXXX Convention XX Human XXXXXX
(X/9/2012), available XX http://www.humanrightseurope.org/XXXX/02/XXXXX-XXXXX-sweden-in-homophobic-leaflet-dispute/. X XXXX XXXX.
Discrimination XXX hate speech XX XXX XXXXX of sexual XXXXXXXXXXX: XX it protected XX freedom XX
XXXXXXXXXX?, Human Rights XXX Centre (2/X/XXXX), available at http://XXXX.XXX.XX/XXXXXXXXX-ors-v-sweden-XXXX-echr-XXX-X-february-XXXX. 4 June XXXX.
XXXXXXX, XXXXXX. XXXXXXXXXX XXXXX on XXXX-XXX XXXXXX XXX the XXXXX time (3/XX/2012), UK Human
XXXXXX XXXX, available XX XXXX://ukhumanrightsblog.com/XXXX/XX/13/XXXXXXXXXX-rules-on-XXXX-XXX-speech-XXX-the-first-time. 5 June 2015.
XXXXXXXXX and XXXXXX v. Sweden: Hate XXXXXX XXX Article XX XXXX, XXXXXXXX Defense Fund,
XXXX, XXXXXXXXX at http://XXX.adfmedia.org/files/XXXX-04-12_Vejdeland_Update.XXX. 4 June 2015.