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Court of Justice of the European Union

The Court of Justice of the European Union (CJEU) in Luxembourg encompasses three distinct courts (Court of Justice, General Court, and Civil Service Tribunal) that exercise the judicial functions of the European Union (EU), which aims to achieve greater political and economic integration among EU Member States. However, the Civil Service Tribunal only considers labor disputes raised by EU civil servants against EU institutions. The CJEU has competence to hear individual complaints of alleged human rights violations, which are decided by the General Court  and may be reviewed on appeal by the European Court of Justice.

The current EU Member States are: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

Originally established in 1952 as the Court of Justice of the European Coal and Steel Communities to ensure observance of the law “in the interpretation and application” of the EU treaties, CJEU currently holds jurisdiction to:

  • review the legality of institutional actions by the European Union;
  • ensure that Member States comply with their obligations under EU law; and,
  • interpret European Union law at the request of the national courts and tribunals.

The CJEU hears complaints brought by individuals through the subsidiary General Court under three circumstances under Article 263 of the Treaty on the Functioning of the European Union (TFEU). First, individuals may bring a “direct actions” against any body of the EU for acts “of direct and individual concern to them.” Second, individuals may bring “actions for annulment” to void a regulation, directive or decision “adopted by an institution, body, office or agency of the European Union” and directly adverse to the individual. Third, individuals may bring “actions for failure to act” that can challenge an adverse failure of the EU to act, but “only after the institution concerned has been called on to act. Where the failure to act is held to be unlawful, it is for the institution concerned to put an end to the failure by appropriate measures.” General Court judgments and rulings on an individual action may be appealed, only on points of law, to the Court of Justice.

The EU recognizes “three sources of European Union law: primary law, secondary law and supplementary law. The main sources of primary law are the Treaties establishing the European Union. Secondary sources are legal instruments based on the Treaties and include unilateral secondary law and conventions and agreements. Supplementary sources are elements of law not provided for by the Treaties. This category includes Court of Justice case-law, international law and general principles of law.”

An essential, primary source of EU human rights law is the Charter of Fundamental Rights of the European Union, which covers the civil, political, economic and social rights protected within the EU. The Charter binds EU bodies, and also applies to domestic governments in their application of EU law, in accordance with the Treaty of Lisbon.

The CJEU also views the European Convention of Human Rights as embodying principles of law applicable in EU Member States. See, e.g., Criminal Proceedings against Gianfranco Perfili, Case C-177/94, Judgment of 1 February 1996. In that case, the Court stated:

According to settled case-law, where national legislation falls within the field of application of Community law, the Court, when requested to give a preliminary ruling, must provide the national court with all the elements of interpretation which are necessary in order to enable it to assess the compatibility of that legislation with the fundamental rights — as laid down in particular in the European Convention of Human Rights — the observance of which the Court ensures.  However, the Court has no such jurisdiction with regard to national legislation lying outside the scope of Community law (see the judgment in Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan and Others [1991] ECR 1-4685, paragraph 31).

Thus, although the primary goal of the EU has been economic and political integration, the CJEU has decided many cases that deal with fundamental rights. See Defrenne v. Sabena, Case 43/75, [1976] E.C.R. 455 (non-discrimination); Prais v. Council, Case 130/75, [1976] E.C.R. 1589 (freedom of religion); Union Syndicale-Amalgamated European Pub. Serv. Union v. Council, Case 175/73, [1974] E.C.R. 917 (freedom of association); VBBB & VBVB v. Commission, Joined Cases 43 & 63/82, [1984] E.C.R.19. (freedom of expression); and other cases dealing with the legality of anti-terrorism measures.

Further information about other sources of EU law is available from the European Institute for Public Administration, including Tomasz Kramer’s presentation on Primary and Secondary Sources of EU Law Practical analysis of EU Legal Instruments.

The European Court of Justice’s Rules of Procedure and other governing texts can be found online.  The General Court has its own Rules of Procedure.

European Court Rejects Complaint of Man Who “Insulted” the Court

Nikolay Alexeyev holding ballot paper which reads “No to homophobes, no to Luzhkov”
Credit: Niko 111 via Wikimedia Commons

On July 16, 2019, the European Court of Human Rights (ECtHR) rejected a complaint by Nikolay Alekseyev, a well-known Russian lesbian, gay, bisexual and transgender (LGBT) activist, due to posts he made on his social media sites that the ECtHR considered “personally offensive and threatening.” See ECtHR, Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, Judgment of 16 July 2019, para. 83. While the Court went on to find that Russia violated the remaining applicants’ rights to non-discrimination and freedom of association by refusing to register three organizations that advocate for LGBT rights, the Court did not reach the merits of Alekseyev’s complaint. Instead, it found his application inadmissible as “an abuse of the right of application,” pursuant to Article 35 of the European Convention on Human Rights. See id. at paras. 76-86. A majority of the judges agreed with Russia’s argument that Alekseyev abused the right to petition the European Court when he published social media posts describing the European Court’s judges in derogatory, sexist, and threatening terms in response to a previous ruling by the Court in a separate case. See id. In that case, the Court had denied him and others monetary compensation after finding Russia responsible for human rights violations in connection with authorities’ refusal to authorize public LGBT events. See id.

The European Court is not the only human rights oversight body whose rules allow it to reject human rights complaints because of the complainant’s offensive or abusive language, but such provisions and their application to speech made or published outside of the complaint proceeding raise concerns regarding due process, access to justice, and freedom of expression. Three judges on the ECtHR issued a dissenting opinion challenging the Court’s reasoning in dismissing Alekseyev’s application and warning that the precedent set in the Court’s judgment may impact individuals’ ability to access the Court in the future and infringe on their right to freedom of speech. See ECtHR, Case of Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, Judgment of 16 July 2019 (joint partly dissenting opinion of Judges Keller, Serghides, and Elósegui).

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African Union Elects Four Judges to the African Court

The African Court on Human and Peoples’ Rights
Credit: AfCHPR

In June, the Assembly of Heads of State and Government of the African Union (the Assembly) elected four judges to replace vacancies on the 11-member African Court on Human and People’s Rights. [AfCHPR Press Release] See IJRC, African Court on Human and Peoples’ Rights: 2018 Elections. The election occurred at the 33rd Ordinary Session of the Executive Council of the African Union in Nouakchott, Mauritania, during which the Assembly elected the following individuals: Imani Aboud (Tanzania), Stella Isibhakhomen Anukam (Nigeria), Ben Kioko (Kenya), and Blaise Tchikaya (Congo). [AfCHPR Press Release] See also AU Executive Council, Draft Agenda, AU Doc. EX.CL/Draft/1(XXXIII) (June 28-29, 2018), sec. X. Three of the judges were elected to six-year terms, while one judge was elected to serve a two-year term, being the remainder of the term for another judge who resigned prematurely. See IJRC, African Court on Human and Peoples’ Rights: 2018 Elections. The judges will begin their terms at the first African Court session following the election, which is scheduled to begin on August 27, 2018 in Arusha, Tanzania. See AfCHPR, Calendar of Sessions. Read more

U.S. Supreme Court Limits Corporate Liability for Human Rights Abuses

Arab Bank, the defendant in Jesner v. Arab Bank
Credit: jo.schz via Flickr

On April 24, the United States Supreme Court ruled in Jesner v. Arab Bank that foreign citizens cannot sue foreign corporations for civil damages in U.S. federal courts for serious violations of international law, such as torture or extrajudicial killings. See Jesner et al. v. Arab Bank, PLC, No. 16–499, slip op. (April 24, 2018). The case was brought against Arab Bank by victims of several terrorist attacks occurring in Israel and the occupied territories. See id. at 1. The plaintiffs alleged that Arab Bank supported numerous terrorist attacks, including those that harmed the victims, by knowingly providing financial services to terrorists, such as accepting deposits it knew were donations used to fund the attacks and pay money to the families of suicide bombers. See id. at 1-3. The plaintiffs brought their case under the Alien Tort Statute (ATS), which provides that United States federal courts may hear cases, brought by non-nationals, of tort committed in violation of international law. See id. at 1-2. The ATS is an exercise in universal civil jurisdiction, as it extends domestic judicial jurisdiction over actions that occurred abroad to foreign plaintiffs; it has historically been a means for non-U.S. citizens to seek redress for serious human rights violations committed outside of the U.S., although the Jesner decision and previous rulings limit the scope of the statute. See, e.g., Jesner, No. 16–499, slip op. at 1; Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Notably, the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum limited the scope of the ATS to cases that touch and concern the United States with sufficient force to overcome a presumption against the U.S. extending jurisdiction extraterritorially. See Kiobel et al. v. Royal Dutch Petroleum et al., 569 U.S. 108 (2013); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). International human rights bodies disagree over whether States must exercise universal civil jurisdiction over specific human rights abuses, mainly torture, that occurred abroad and by a foreign defendant. [IJRCSee Naït-Liman v. Switzerland [GC], Judgment of 15 March 2018; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26.

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European Court Delivers Landmark Judgment on Universal Jurisdiction & Torture

European Court of Human Rights
Credit: Adrian Grycuk via Wikimedia Commons

On March 15, the European Court of Human Rights (ECtHR) issued a landmark decision finding that States are not required to allow victims of torture to sue perpetrators in civil proceedings, in the absence of criminal proceedings, for compensation when the act of torture occurred outside of the territory of the State and the perpetrators are not nationals and are domiciled abroad. See ECtHR, Naït-Liman v. Switzerland [GC], no. 51357/07, ECHR 2018, Judgment of 15 March 2018, paras. 97, 217. Accordingly, the ECtHR Grand Chamber held that States are not obligated under international law to exercise universal civil jurisdiction over acts of torture. See id. at para. 203. Universal civil jurisdiction is the power of a domestic court to resolve claims for monetary compensation without there being any connection between the State where the case is brought and the underlying facts of the case. See id. at para. 177. Although the ECtHR recognized that States were obligated to exercise universal criminal jurisdiction over acts of torture, the ECtHR found that there was no similar obligation for civil claims that are wholly separate from a criminal proceeding. See id. at para. 97. This decision diverges from the position taken by the United Nations Committee against Torture (CAT) and various international human rights organizations, including Amnesty International, the International Commission of Jurists, Redress Trust, and the World Organization Against Torture. See id. at paras. 52-53, 161, 167-68. The CAT maintains that States are obligated to award reparations for acts of torture, even if the torture occurs outside of the territory of the State, and to ensure that civil liability and redress is “available independently of criminal proceedings.” See id. at paras. 52-53, 161, 167-68; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26. Read more

African Court Holds Rwanda Violated Victoire Ingabire’s Freedom of Expression

Justice Solomy Balungi Bossa of the African Court on Human and Peoples’ Rights
Credit: ACHPR

On November 24, 2017, the African Court on Human and Peoples’ Rights (AfCHPR) held that Rwanda violated Victoire Ingabire Umuhoza’s right to freedom of opinion and expression, as well as her right to an adequate defense. See AfCHPR, Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014, Judgment of 24 November 2017, paras. 173(viii)-(ix). Specifically, the African Court held that Rwanda violated the African Charter on Human and Peoples’ Rights (African Charter) and the International Covenant on Civil and Political Rights (ICCPR) because the criminal conviction and sentence imposed on Ingabire for a speech that, the African Court found, did not minimize the genocide was a disproportional and unnecessary restriction on her freedom of speech; however, the Court further found that the law criminalizing the minimization of genocide may impose a legitimate restriction on the right to freedom of expression for purposes of preserving public order and national security. See id. at paras. 141, 161-163. The Court’s analysis on the right to freedom expression draws on the only other judgment from the Court to weigh on an alleged violation of that right and relies, as that previous judgment did, on comparative international human rights jurisprudence to develop the right to freedom of expression in its own case law, including to recognize that the right protects opinions that “offend, shock or disturb.” See id. at paras. 120-63; AfCHPR, Lohé Issa Konaté v. Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014.

While Ingabire’s case was pending before the Court, Rwanda moved to withdrawal its declaration allowing individuals to appeal directly to the AfCHPR; while the withdrawal has gone into effect, it does not affect those cases that the Court already had jurisdiction over, including Ingabire’s case. [IJRC] See AfCHPR, Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014, Ruling on Jurisdiction, 5 September 2016. Read more

Supreme Court of India Declares Privacy Is a Fundamental Right

Supreme Court of India
Credit: Legaleagle86 via Wikimedia Commons

At the end of August, the Supreme Court of India unanimously held that the Constitution of India specifically protects the right to privacy, which it concluded is inherent to constitutional guarantees of life and liberty pursuant to its Article 21 and, therefore, already exists as a fundamental freedom enshrined in the Constitution. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (2017) (India) (opinion of Chandrachud, J.), at 110, 254, 257, 262. The decision arose from a case challenging the constitutionality of the country’s system of using biometrics to identify individuals. For the case to move forward, the nine judges of the Supreme Court of India had to first determine whether the Constitution of India protects the right to privacy. See id. at 7. Affirming the right, the court’s decision was in accordance with international standards on privacy; the court confirmed that individuals have a zone of privacy limited by others’ rights and that the State may interfere with the right to privacy only through established law in pursuit of a legitimate aim and when necessary in a democratic society. See id. at 180-91, 242-46. The constitutional challenge to the biometric identification system will now resume, taking into account the privacy framework decided by the court.

According to Human Rights Watch (HRW) the ruling in the present case will not only have an impact on national policies concerning mandatory identification programs, but also other domestic issues, such as sexual orientation; the opinion explicitly states that sexual orientation is essential to privacy and identity, and discrimination on the basis of sexual orientation is counter to dignity. A challenge to India’s law criminalizing same-sex relations is also currently pending in court. [HRW] See id. at 124. The decision already overruled two prior domestic cases that held the right to privacy is not specifically protected under the Constitution of India. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), at 5. Read more

Guatemalan Court Blocks President’s Attempt to Expel Anticorruption Panel Leader

CICIG Commissioner Iván Velásquez speaks at the UN Embassy in Guatemala
Credit: US Embassy via Wikimedia Commons

On August 29, Guatemala’s Constitutional Court issued a temporary injunction to block President Jimmy Morales’ expulsion order against Iván Velásquez, head of a United Nations anticorruption panel, who just days earlier announced his intent to investigate Morales for alleged campaign finance violations in 2015. [Al Jazeera; New York Times] The UN International Committee against Impunity in Guatemala (known by its Spanish acronym CICIG) was formed 10 years ago to address the pervasive corruption problems in Guatemala. [Al Jazeera] In furtherance of its mission, CICIG currently seeks to strip Morales of his official immunity so that he may face a campaign finance investigation. [Washington Post] Morales announced his decision to expel Velásquez on August 27, citing “the interests of the Guatemalan people” and his aim to “strengthen[] . . . the rule of law and our institutions.” [Al Jazeera] The expulsion order sparked protests in defense of Velásquez and continues to draw international criticism. [New York Times] Representatives from the United Nations, the Inter-American Commission on Human Rights (IACHR), and the European Union (EU) have condemned Morales’ actions as beyond the scope of his authority and an unjustified interference with the work of CICIG. [UN News Centre; OHCHR Press Release; IACHR Press Release (in Spanish); EU Press Release] Read more

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