HUMAN RIGHTS PROTECTION

IN EUROPE

AUTHOR: TANISA MIHAILENKO

RIGA 2020
 TABLE OF CONTENTS

1. INTRODUCTION....................................................................................................................... 3
2. EU INSTRUMENTS/INSTITUTIONS FOR THE PROTECTION OF HUMAN RIGHTS ..................... 3
2.1. The Council of Europe (CoE) ....................................................................................... 3
2.1.1. European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) .............................................................................................................. 3
2.1.1.1. The EU Charter of Fundamental Rights ................................................................ 4
2.2. European Court of Justice of the European Union (CJEU/ECJ) ............................. 5
3. THE GUARANTEE OF PROTECTION UNDER RULE OF LAW ...................................................... 5
4. CONCLUSION .......................................................................................................................... 6

2
 1. INTRODUCTION

The EU is based on values respect for human dignity, freedom, democracy, equality,
the rule of law and respect for human rights, including the rights of persons belonging to
minorities.1
The European Union is committed to supporting democracy and human rights in its
external relations, in accordance with its founding principles of liberty, democracy and respect
for human rights, fundamental freedoms and the rule of law. The EU seeks to mainstream
human rights concerns into all its policies and programmes and has different human rights
policy instruments for specific actions — including financing specific projects through its
financing instruments.2

2. EU INSTRUMENTS/INSTITUTIONS FOR THE PROTECTION OF HUMAN

The European Convention on Human Rights (ECHR) and its European Court of Human
Rights (ECtHR) are part of a completely different legal system to the EU. The ECHR and its
court are part of The Council of Europe, which has 47 member states, including Russia and the
UK. The EU, on the other hand, consists of 27 Member States. The European Court of Justice
(ECJ) is the body responsible for overseeing compliance with EU law within the EU. 3

2.1. The Council of Europe (CoE)

The European system for the protection of human rights was established by the Council
of Europe (CoE), a regional intergovernmental organisation. It promotes democracy, human
rights and the rule of law. It includes all EU members plus another 20 European countries,
including Russia, Switzerland and the UK, with the likes of Canada and the US observer
members. This is not an EU institution. The European Convention on Human Rights is the first
Council of Europe’s convention and the cornerstone of all its activities.4

2.1.1. European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR)

The European Convention on Human Rights is the first Council of Europe’s convention
and the cornerstone of all its activities. ECHR is the main human rights agreement of the
Council of Europe. It was adopted in 1950 and entered into force in 1953. The ECHR is the
leading instrument for the protection of fundamental rights in Europe, to which all EU Member
States have acceded, including Russia and the UK. The EU itself is not yet a member, and its
institutions are not directly bound by this agreement. Treaty of Lisbon introduced Article 6(2),
which made the EU’s accession to the ECHR obligatory.5

1
Charter of Fundamental Rights. Available on: https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=legissum%3Al33501. Accessed November 8, 2020.
2
Ottavio Marzocchi, “The Protection of Fundamental Rights in the EU” Fact Sheets on the European Union
(2019), accessed November 8, 2020, Available on: https://www.europarl.europa.eu/ftu/pdf/en/FTU_4.1.2.pdf
3
Ibid.
4
Ibid.
5
Ibid.

3
 2.1.1.1. The EU Charter of Fundamental Rights

The Charter of Fundamental Rights formalises the basic human, civil and social rights
enjoyed by EU citizens. It builds on the ECHR, going further in some areas and including rights
specifically related to EU membership, such as voting rights. 6 The Charter lays out the,
previously, mentioned values that the EU is based on.
Firstly, human dignity – safeguarding our physical and mental integrity. Charter
promotes these values, including protection against human trafficking. Second, the Charter
provides a list of entitlements surrounding people’s freedoms, defining the fundamental rights,
including the right to asylum and personal data protection. Third, the Charter better promotes
the equality and diversity, regardless the sex, ethnicity, religion and sexual orientation
emphasizing the rights of children, the elderly and integrating the persons with disabilities.
Fourth, it underlines the importance of solidarity and socio-economic rights and principles,
ranging from safeguarding our family and professional lives to consumer and environmental
protection. Fifth, the Charter highlights citizen’s rights - the opportunities for participating in
and being protected by the EU legal and political system. This includes the right of good
administration and the freedom of movement and residence within the EU. Finally, it addresses
the right to a fair trial in all possible processes, including administrative, tax or assign of
procedures.7

2.1.1.2. European Court of Human Rights (ECtHR)

The European Court of Human Rights (ECtHR) is the body responsible for overseeing
that member countries comply with their obligations under the ECHR. It is an institution of the
Council of Europe.
ECtHR is the leading instrument for the protection of fundamental rights in Europe, to which
all Member States have acceded. It was set up in 1950, in order to promote human rights,
democracy and the rule of law across the Europe. 8
People, who consider that their fundamental rights have been breached, turn to the
ECtHR. This Court allows individuals have State’s held to account. ECtHR performs as an
external body who subjects the EU, as regards respect for fundamental rights, to review.
The number of individuals, covered by this system, totals around 820 million – that is
the number of protentional applicants. Therefore, in reality there are a lot more people, that can
enjoy the benefits, namely, to become an applicant and to have protection by the system. Non-
Europeans’, whether refugees or other individuals who happen to be within the jurisdiction of
a Member State are also protected.

6
Ottavio Marzocchi, “The Protection of Fundamental Rights in the EU” Fact Sheets on the European Union
(2019), accessed November 8, 2020, Available on: https://www.europarl.europa.eu/ftu/pdf/en/FTU_4.1.2.pdf
7
Charter of Fundamental Rights. Available on: https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=legissum%3Al33501. Accessed November 8, 2020.
8
Ottavio Marzocchi, “The Protection of Fundamental Rights in the EU” Fact Sheets on the European Union
(2019), accessed November 8, 2020, Available on: https://www.europarl.europa.eu/ftu/pdf/en/FTU_4.1.2.pdf

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 2.2. European Court of Justice of the European Union (CJEU/ECJ)

The European Court of Justice (ECJ) is the judicial authority of the EU, ruling on
member states’ compliance with EU treaties, interpreting EU law and deciding on the legality
of EU institutions’ actions.9

3. THE GUARANTEE OF PROTECTION UNDER RULE OF LAW

In the case of Hirsi Jamaa and Others v. Italy, the Court found a violation of the Convention by
Italy, following the forced return of Somalians and Eritreans to Libya from where they had
originally set out by boat for Europe. The practice violated international obligations to not
return individuals to countries where they could be at risk of human rights abuses. The transfer
to Libya by the Italian authorities had violated Article 3 of the European Convention on Human
Rights. The Court’s judgment establishes that even when individuals are intercepted in
international waters, government authorities are obliged to abide by international human rights
law. Anybody they intercept must have access to an individualized procedure as well as
remedies to challenge the decision to return them to their country of departure. 10
There are exceptional cases, the scope of convention can also extend beyond Europe’s
borders. A state can thus be held responsible for events occurring outside its territory. In the
case of Al-Skeini and Others v. United Kingdom, The Court found the UK in a breach of The
Convention, following the deaths of civilians in Iraq during security operations carried out by
British forces, who’s responsibility is to maintain security and safety in the region concerned,
thereby the United Kingdom had to conduct an investigation into civilian deaths, in which
British soldiers were involved. The Government’s obligation is to protect the right to liberty
under Article 5 of the European Convention on Human Rights.11
States can also be held accountable for acts performed, within their jurisdiction, by
another state, if they were aware of these acts. In the case of El-Masri v. “The Former Yugoslav
Republic of Macedonia”, which was found to be in breach of The Convention, because a
German national, expected to be a terrorist, was tortured in that State’s territory. The torture
had been committed by CIA agents, with the presence of officials of the state concerned. The
Court reasoned that the Macedonian authorities had subjected the Applicant to inhuman and
degrading treatment by holding him in a hotel in a state of stress and anguish for the purpose
of extracting a confession and were “directly responsible” for the CIA’s subsequent torture of
the Applicant because its officials had “actively facilitated and failed to prevent that
operations”. The European Court of Human Rights held that Macedonia violated Articles 3, 5,
8 and 13 of the European Convention of Human Rights.12

9
Court of Justice of the European Union (CJEU). Available on: https://europa.eu/european-union/about-
eu/institutions-bodies/court-justice_en. Accessed November 8,2020.
10
Judgement of 23 February, 2012, Hirsi Jamaa and Others v. Italy, Application no. 27765/09. Available on:
https://hudoc.echr.coe.int/spa#{"itemid":["001-109231"]}. Accessed November 8, 2020.
11
Judgement of 7 July, 2011, Al-Skeini and Others v. United Kingdom. Application no. 55721/07. Available on:
http://hudoc.echr.coe.int/fre?i=001-105606. Accessed November 8, 2020.
12
European Court of Human Rights. Macedonian Government responsible for torture, ill-treatment
and secret rendition of a man suspected of terrorist ties. Available on: https://hudoc.echr.coe.int/fre-
press#{"itemid":["003-4196815-4975517"]}. Accessed November 8,2020.

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 4. CONCLUSION

Human rights are rights and freedoms that individuals get to enjoy. Conceptually,
human rights are universal – they apply to anyone; They are also inalienable – they cannot be
taken away by anyone; Also, indivisible – all of the rights are equally important and applied,
and, finally, inherent – human beings get them purely.13
Human rights are not legal rights, therefore, they require legal basis and the recognition
by the state and it’s big legal players. In the reality, there can be circumstances where two
human rights are going to be clashing. The EU’s human rights and democracy policy
encompasses civil, political, economic, social and cultural rights. The EU is adamant about
protecting the universal nature of human rights when this is questioned on grounds of cultural
or political differences. Within EU borders, those principles are embedded in the EU founding
treaties, reinforced by the EU Charter of Fundamental Rights adopted in 2000, and strengthened
still further when the Charter became legally binding with the entry into force of the Lisbon
Treaty in 2009.14
Outside EU borders, the Lisbon Treaty (Art 21) stipulates that the Union's committing
an action on the international scene, the principles, which have inspired its own creation,
development and enlargement, shall be taken into account: democracy, the rule of law, the
universality and indivisibility of human rights and fundamental freedoms, respect for human
dignity, the principles of equality and solidarity and respect for the principles of the United
Nations Charter and international law. The EU is obliged to deliver and provide the safety and
to defend human rights.15

13
United Nations Human Rights. What are human rights?. Available on:
https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx. Accessed November 8, 2020.
14 Ottavio Marzocchi, “The Protection of Fundamental Rights in the EU” Fact Sheets on the European Union

(2019), accessed November 8, 2020, Available on: https://www.europarl.europa.eu/ftu/pdf/en/FTU_4.1.2.pdf