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Europe as a supranational jurisdiction

The European Court of Human Rights (ECtHR) was the quickest to consider treaty body jurisprudence as a supporting source in the course of evaluating complaints of human rights abuse. This swift uptake can be attributed to the prominence of the European Convention on Human Rights^ (ECHR), to which all forty-seven Council of Europe member states subscribe. The ECHR has guided domestic European jurisdictions since its adoption in 1950. Both the Council of Europe and the European Union, which have an overlapping membership of twenty-eight states, maintain human rights as a primary policy objective. Therefore, it is unsurprising that the ECtHR has often utilized the soft law promulgated by the treaty bodies in its efforts to normalize the interpretation of rights and aid in the development of universal human rights standards.

As the primary court of review of human rights violations in Europe, the ECtHR has referred to the opinions of various treaty bodies on many occasions. The cases discussed here represent a sampling of those where a general comment was invoked as an interpretative tool. In 2014 the ECtHR applied HRC General Comment No. 20,io4 in concert with other international law, in Margus v. Croatia105 to assess the issue of the right not to be tried for the same charges and the right to a fair trial in light of an amnesty granted to the claimant. Following General Comment No. 20, the ECtHR recognized that though some states have granted amnesties for acts of torture, such amnesties violate the duty of states under the ICCPR to investigate and prevent acts prohibited by ICCPR Article 7. Thus in this instance, the ECtHR utilized the general comment to reinforce the need to limit the use of amnesties in order to ensure justice for the victims of torture or other prohibited treatment. Margus represents one of a growing line of cases focused on refining the prohibition against torture and the multifarious ways in which the breach of the right might be manifested.106

The ECtHR examined the extent to which threats constitute torture in 2010 in Gafgen v. Germany!7 As part of its evaluation the Court referenced a 2001 report by the UN Special Rapporteur for the Commission on Human Rights. The report reminded governments that the prohibition of torture related also to acts that cause mental suffering, including intimidation and threats, as pointed out in HRC General Comment No. 20. It also referenced HRC General Comment No. 7108 (which was replaced by No. 20) to confirm the importance of the principle of effective protection and remedy for victims of torture or ill-treatment, including the inadmissibility of statements or confessions obtained by torture or other prohibited treatment.109 The impact of General Comment Nos. 7 and 20 continue to resonate in cases throughout both the Council of Europe and European Union systems.

In Baka v. Hungary,™ the ECtHR sat in a unique position as it heard an application by one of its former members relating to the independence of the judiciary. The Court relied heavily on HRC General Comment No. 32 on the right to equality before courts and tribunals and to a fair trial to outline the international guidance on what ICCPR Article 14 required in the context of independence of the judiciary and protecting judges from political influence.m The ECtHR ultimately found that Bakas ECHR Article 10 rights had been violated. In doing so, the ECtHR confirmed an international standard for the independence of the judiciary.

The 2005 HirstH2 judgment referred to HRC General Comment No. 25(57)n3 which detailed the requirement that states provide detailed information on any

106 E.g.: Othman (Abu Qatada) v. United Kingdom [2012] ECHR 56, which examined the extent of the prohibition against torture. In the case the Court explicitly referred to concluding observations, another form of soft law, by both the Committee Against Torture and the HRC, in addition to a

General Comment, paras 107—108, 147—151, 156, and 158.

  • 107 Gafgen v. Germany, 22978/05 [2010] ECHR 759 (1 June 2010).
  • 108 HRC, General Comment No. 7: Torture or Cruel, Inhuman or Degrading Treatment or Punishment, 30 May 1982 at

x?Lang=en&TreatyID=8&DocTypeID=11> (last accessed 3 Jan. 2016).

109 Gafgen v. Germany, 22978/05 [2010] ECHR 759 (1 June 2010), paras 67, 70—71. no Baka v. Hungary (Chamber) [2014] ECHR 528.

111 HRC, General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), paras 19—21. 112 Hirst v. United Kingdom, ECtHR (GC), No. 74025/01, judgment 6 Oct. 2005, para. 27. из Participation in Public Affairs and the Right to Vote, UN Doc. CCPR/C/21/Rev.1/Add.7

legislation that was the basis of suspending the right to vote.[1] [2] The case involved prisoners’ voting rights in the UK and the Court ultimately held that the UK was in violation of ECHR Protocol No. 1, Article 3 due to the broad blanket ban depriving prisoners of the right to vote. In another 2005 case, Ocalan v. Turkey, the ECtHR recognized the findings of the HRC in Reid v. Jamaica, which were based on its General Comment No. 6: Article 6 (Right to Life),n5 as ‘international developments concerning the death penalty’.n6 Thus the Court noted the changing views of the international community at large as set forth by the HRC general comment.

A distinguishing feature of the ECtHR is its ability to stay on top of the large amount of information coming out of the treaty bodies and to employ it without delay. One reason for this may be the number of judges—currently four—sitting on the ECtHR that formerly served as members of a treaty body.n7 It could also be the increasing cross-fertilization of information across international human rights mechanisms. Whatever the reason, the ECtHR has demonstrated a deft capacity to engage the jurisprudence of the treaty bodies in its navigation of international human rights standards.

For instance, the Court used the 2007 General Comment No. 10 of the CRC Committee and the 2008 General Comment No. 2 of the CAT Committee in the November 2008 Salduz v. TurkeyH[3] [4] [5] judgment to elaborate the relevant law concerning legal assistance to minors in police custody. It expressly incorporated two paragraphs of the CRC Committee comment[6] [7] [8] and one from the CAT com- menti2° to interpret the extent of Turkey’s obligation to provide assistance, legal or otherwise, in cases involving juveniles and the general right of access to a lawyer while in police custody. Regarding general comments as interpretative tools, Salduz is particularly interesting in that it featured two comments that were issued after the commencement of the case, which highlights the evolving nature of the tools that are essential to rights protection.

The use of general comments quite often reflects the interrelatedness and indivisibility of human rights as recognized in a broad range of treaties. HRC General Comment No. 29: States of Emergency (Article 4)121 was used in 2009 to assist in determining the legal standard used to measure when a state could claim a legitimate derogation to the ECHR. The applicants in the case alleged unlawful detention, which was countered by the UK with an argument that it was derogating from certain ECHR obligations (as outlined in the Anti-terrorism, Crime and Security Act 2001). Primary questions in the cases leading to the ECtHR hearing were the actual existence of a valid ‘public emergency’ and the duration of the derogation to Article 5 of the ECHR. As noted in the Comment No. 29, ‘[m]easures derogating from the provisions of the Covenant must be of an exceptional and temporary nature’.!22 The Court ultimately held that despite there being a public emergency worthy of derogation and that the derogation was not of an unreasonable duration in keeping with accepted law, including General Comment No. 29, the ‘derogation measures were disproportionate in that they discriminated unjustifiably between nationals and non-nationals’.03 Thus, it was necessary to mix and match the various international obligations and standards to get to the heart of the breach of the obligation.

The approach of the ECtHR in referencing a wide range of treaty body jurisprudence, as demonstrated in Neulinger, reinforces the common mantra that a human rights convention ‘cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law’.04 The Neulinger decision relied upon HRC General Comments Nos 17 and 19, among several other international documents, to tease out the meaning of the ‘best interests of the child’°5 and the decision has resonated across many European states. The position of the ECtHR, as well as other supranational human rights courts, is unique in the potential for its decisions, and the reasoning articulated therein, to influence the states within its regulatory system. Giving pride of place to treaty body instruments as means of determining human rights standards at the European level strengthens the ‘soft’ nature of this jurisprudence and underscores its value as an interpretative tool.

  • [1] Hirst v. United Kingdom, ECtHR (GC), No. 74025/01, judgment 6 Oct. 2005; Baka v. Hungary(Chamber) [2014] ECHR 528, para. 27.
  • [2] HRC, General Comment No. 6: Article 6 (Right to Life), 30 Apr. 1982, (last accessed 3 Jan. 2016).
  • [3] Ocalan v. Turkey, ECtHR (GC), No. 46221/99, judgment 12 May 2005, para. 60.
  • [4] Judge Bostjan Zupancic was a member of the CAT Committee (1995—8); Judge Linos-AlexandreSicilianos was a member of the CERD Committee (2002—9); Judge Helen Keller was a member of theHRC (2008—11); Judge Iulia Antoanella Motoc was a member of the HRC (2006—13).
  • [5] (ECtHR) App. 36391/02, 27 Nov. 2008.
  • [6] CRC Committee, General Comment No. 10: Children’s Rights in Juvenile Justice, UN Doc.CRC/C/GC/10 (2007), paras 49, 52.
  • [7] 12° CAT Committee, General Comment No. 2: Implementation of Article 2 by States Parties, UNDoc. CAT/C/GC/2 (2008), para. 13.
  • [8] HRC, General Comment No 29: State of Emergency (Article 4), UN CCPR/C/21/Rev. 1/Add.11 (2001).
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