The EUROPEAN COURT of HUMAN RIGHTS

  The ultimate Court in Europe, to which most other European states are bound by virtue of being signatories to the Articles

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The ECHR in Strasbourg, Cedex, France

 

The European Court of Human Rights (ECtHR; French: Cour européenne des droits de l’homme) is a supra-national or international court established by the European Convention on Human Rights. It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols. An application can be lodged by an individual, a group of individuals or one or more of the other contracting states, and, besides judgements, the Court can also issue advisory opinions. The Convention was adopted within the context of the Council of Europe, and all of its 47 member states are contracting parties to the Convention. The Court is based in Strasbourg, France.

Judges

Prior to the adoption of Protocol no.14, judges were elected for a six-year term, with the option of renewal of this term. Now judges are elected for a non-renewable nine year term. The number of full-time judges sitting in the Court is equal to that of the contracting states to the European Convention on Human Rights. The Convention requires that judges are of high moral character and to have qualifications suitable for high judicial office, or be a jurisconsult of recognised competence. Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from the three candidates nominated by each contracting state. Judges are elected whenever a sitting judge's term has expired or when a new state accedes to the Covenant. The retiring age of judges is 70, but they may continue to serve as judges until a new judge is elected or until the cases in which they sit have come to an end. The judges perform their duties in an individual capacity and are prohibited from having any institutional or other type of ties with the contracting state on behalf of whom they were elected. To ensure the independence of the Court judges are not allowed to participate in activity that may compromise the Court's independence. A judge cannot hear or decide a case if he has a family or professional relationship with the parties. Judges can only be dismissed from office if the other judges decide, by two-thirds majority, that the judge has ceased to fulfil the required conditions. Judges enjoy, during their term as judges, the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe.

Plenary court and administration

The plenary court is an assembly of all of the Court's judges. It has no judicial functions. It elects the court's president, vice-president, registrar and deputy registrar. It also deals with administrative matters, discipline, working methods, reforms, the establishment of Chambers and the adoption of the Rules of Court.

Jurisdiction

The jurisdiction of the court is generally divided into inter-state cases, applications by individuals against contracting states, and advisory opinions in accordance with Protocol No.2. Applications by individuals constitute the majority of cases heard by the Court. A Committee is constituted by three judges, Chambers by seven judges and a Grand Chamber by 17 judges.


Applications by individuals

Applications by individuals against contracting states, alleging that the state violates their rights under the European Convention on Human Rights, can be made by any person, non-governmental organisation or group of individuals. Although the official languages of the Court are English and French applications may be submitted in any one of the official languages of the contracting states. An application has to be made in writing and signed by the applicant or by the applicant's representative. Once registered with the Court, the case is assigned to a judge rapporteur, which can make the final decision that the case is inadmissible. A case may be inadmissible when it is incompatible with the requirements of ratione materiae, ratione temporis or ratione personae, or if the case cannot be proceeded with on formal grounds, such as non-exhaustion of domestic remedies, lapse of the six months form the last internal decision complained of, anonymity, substantial identity with a matter already submitted to the Court, or with another procedure of international investigation. If the rapporteur judge decides that the case can proceed, the case if referred to a Chamber of the Court which, unless it decides that the application is inadmissible, communicates the case to the government of the state against which the application is made, asking the government to present its observations on the case. The Chamber of Court then deliberates and judges the case on its admissibility and its merit. Cases which raise serious questions of interpretation and application of the European Convention on Human Rights, a serious issue of general importance, or which may depart from previous case law can be heard in the Grand Chamber if all parties to the case agree to the Chamber of the Court relinquishing jurisdiction to the Grand Chamber. A panel of five judges decides whether the Grand Chamber accepts the referral.

 

 

 

A piece of the Berlin Wall in front of the ECHR



Inter-state cases

Any contracting state to the European Convention on Human Rights can sue another contracting state in the Court for alleged breaches of the Convention, although in practice this is very rare.

Advisory opinion

The Committee of Ministers may, by majority vote, ask the Court to deliver an advisory opinion on the interpretation of the European Convention on Human Rights, unless the matter relates to the content and scope of fundamental rights which the Court already considers.

Procedure and decisions

After the preliminary finding of admissibility the Court examines the case by hearing representations from both parties. The Court may undertake any investigation it deems necessary on the facts or issues raised in the application and contracting states are required to provide the Court with all necessary assistance for this purpose. The European Convention on Human Rights requires all hearings to be in public, unless there are exceptional circumstances justifying the holding of a private hearing. In practice the majority of cases are heard in private following written pleadings. In confidential proceedings the Court may assist both parties in securing a settlement, in which case the Court monitors the compliance of the agreement with the Convention. However, in many cases, a hearing is not held. The judgement of the Grand Chamber is final. Judgements by the Chamber of the Court becomes final three months after they are issued, unless a reference to the Grand Chamber for review or appeal has been made. If the panel of the Grand Chamber rejects the request for referral, the judgement of the Chamber of the Court becomes final.

The Court's chamber decides both issues regarding admissibility and merits of the case. Generally, both these issues are dealt with in the same judgement. In final judgements the Court makes a declaration that a contracting state has violated the Convention, and may order the contracting state to pay material and/or moral damages and the legal expenses incurred in domestic courts and the Court in bringing the case. The Court's judgements are public and must contain reasons justifying the decision. Article 46 of the Convention provides that contracting states undertake to abide by the Court's final decision. On the other hand, advisory opinions are, by definition, non-binding. The Court has to date decided consistently that under the Convention it has no jurisdiction to annul domestic laws or administrative practices which violate the Convention. The Committee of Ministers of the Council of Europe is charged with supervising the execution of the Court's judgements. The Committee of Ministers oversees the contracting states' changes to their national law in order that it is compatible with the Convention, or individual measures taken by the contracting state to redress violations. Judgements by the Court are binding on the respondent states concerned and states usually comply with the Court's judgements.

Chambers decide cases by a majority. Any judge who has heard the case can attach to the judgement a separate opinion. This opinion can concur or dissent with the decision of the Court. In case of a tie in voting, the President has the casting vote.

Relationship with other courts - The European Court of Justice

The Court of Justice of the European Union (ECJ) is not related to the European Court of Human Rights. However, since all EU states are members of the Council of Europe and have signed the Convention on Human Rights, there are concerns about consistency in case law between the two courts. The ECJ refers to the case-law of the European Court of Human Rights and treats the Convention on Human Rights as though it was part of the EU's legal system, since it forms part of the legal principles of the EU member states. Even though its member states are party to the Convention, the European Union itself is not a party, as it did not have competence to do so under previous treaties. However, EU institutions are bound under article 6 of the EU Treaty of Nice to respect human rights under the Convention. Furthermore, since the Treaty of Lisbon took effect on 1 December 2009, the EU is expected to sign the Convention. This would mean that the Court of Justice is bound by the judicial precedents of the Court of Human Rights's case law and thus be subject to its human rights law, avoiding issues of conflicting case law between these two courts.

National courts

Most of the Contracting Parties to the European Convention on Human Rights have incorporated the Convention into their own national legal systems, either through constitutional provision, statute or judicial decision.

 

 

 

 

History and structure

The Court was established on the 21 January 1959 on the basis of Article 19 of the European Convention on Human Rights when its first members were elected by the Consultative Assembly of the Council of Europe. The Convention charges the Court with ensuring the observance of the engagement undertaken by the contracting states in relation to the Convention and its protocols, that is ensuring the enforcement and implementation of the European Convention in the member states of the Council of Europe. The jurisdiction of the Court has been recognised to date by all 47 member states of the Council of Europe. In 1998, the Court became a full-time institution and the European Commission of Human Rights, which used to decide on admissibility of applications, was abolished by Protocol 11.

The accession of new states to the European Convention on Human Rights following the fall of the Berlin Wall in 1989 led to a sharp increase in applications filed in the Court. The efficiency of the Court was threatened seriously by the large number of pending applications, which were accumulating and increasing steadily. In 1999 8,400 applications were allocated to be heard. In 2003 27,200 cases were filed and the number of pending applications rose to approximately 65,000. In 2005, the Court opened 45,500 case files. In 2009 57,200 applications were allocated, with the number of pending applications rose to 119,300. At the time more than 90 percent of them, were declared to be inadmissible, and the majority of cases decided, around 60 percent of the decisions by the Court related to what is termed repetitive cases, where the Court has already delivered judgement finding a violation of the European Convention on Human Rights or where well established case law exists on a similar case. Protocol 11 was designed to deal with the backlog of pending cases by establishing the Court and its judges as a full-time institution, by simplifying the procedure and reducing the length of proceedings. However, as the workload of the Court continued to increase, the contracting states agreed that further reforms were necessary and in May 2004 the Council of Europe Committee of Ministers adopted Protocol 14 to the European Convention on Human Rights. Protocol 14 was drafted with the aim of reducing the workload of the Court and that of the Committee of Ministers of the Council of Europe, which supervises the execution of judgements, so that the Court could focus on cases that raise important human rights issues.

Protocol no.14 reforms

Protocol no.14 entered into force on 1 June 2010, three months after it was ratified by all 47 contracting states to the Convention.[4] Between 2006 and 2010, Russia was the only contracting state to refuse to ratify Protocol 14. In 2010, Russia ended its opposition to the protocol, in exchange for a guarantee that Russian judges would be involved in reviewing complaints against Russia. Protocol no.14 led to reforms in three areas: The Court's filtering capacity was reinforced to deal with clearly inadmissible applications, new admissibility criteria were introduced so that cases where the applicant has not suffered a significant disadvantage would be declared inadmissible, and measures were introduced to deal more effectively with repetitive cases.

Protocol 14 amended the Convention so that judges would be elected for a non-renewable term of nine years, whereas previously judges served a six year term with the option of renewal. Amendments were also made so that a single judge could reject plainly inadmissible applications, while prior to this protocol only a three judge committee could make this final decision. In cases of doubt, the single judge refers the applications to the Committee of the Court. A single judge may not examine applications against the state which nominated him. The three judge committee has jurisdiction to declare applications admissible and decide on the merits of the case if it was clearly well founded and based on well established case law. Previously the three judge committee could only declare the case inadmissible, but could not decide on the merits of the case, which could only be done by a chambers of seven judges or the Grand Chamber. Protocol no.14 also provides that when a three judge committee decides on the merits of a case, the judge elected to represent that state is no longer a compulsory member of this committee. The judge can be invited by the committee, to replace one of its members, but only for specific reasons, such as when the application relates to the exhaustion of national legal remedies.

Protocol 14 empowered the Court to declare applications inadmissible where the applicant has not suffered a significant disadvantage and which do not raise serious questions affecting the application or the interpretation of the Convention, or important questions concerning national law. The European Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written comments and taking part in hearings. In order to reduce the workload of the Court, Protocol 14 states that the Court should encourage the parties to reach a settlement at an early stage of the proceedings, especially in repetitive cases. The Committee of Ministers supervises the settlement's execution. Protocol no.14 also allows the Committee of Ministers to ask the Court to interpret a final judgement if there are difficulties in the execution of a final judgement. In order to prevent repetitive applications concerning structural problems in contracting states on which the Court has previously made a final decision, the Committee of Ministers can in exceptional circumstances and with a two-thirds majority, initiate proceedings for non-compliance with a final decision in the Grand Chamber of the Court. Article 17 of protocol no.14 allows the European Union to become party to the Convention. In turn the Lisbon Treaty, which entered force in December 2009, provides that the European Union should accede and become a party to the Convention. The Committee of Ministers is to evaluate in 2012 to 2015 the extent to which the implementation of Protocol no.14 has improved the effectiveness of the Court. The Committee of Ministers is to decide before 2019 whether more reforms of the Court are necessary.


Criticism

The court's interpretation of the Convention's reach is at times subject to criticism as either too narrow or too wide. For instance, the former judge in respect of Cyprus, Loukis Loucaides, criticised the Court for a "reluctance to find violations in sensitive matters affecting the interests of the respondent States". On the other hand, the British Law Lord, Lord Hoffmann argued in 2009 that the Court has not taken the doctrine of the margin of appreciation far enough, being "unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe". Lord Hoffman considered that the ability of the court to interfere in the detail of domestic law ought to be curtailed. He was joined in the criticism by the president of the Belgian Constitutional Court, Marc Bossuyt.

Criticism from Russia, a country held to be in violation of the Convention by the Court in many decisions, is frequent. The Court's judge in respect of Russia, Anatoly Kovler, explaining his frequent dissenting opinions, noted that "I dislike when the Court evaluates non-European values as reactionary (Refah v. Turkey)". The chairman of the Russian Constitutional Court Valery Zorkin, pointing to the Markin v. Russia case, stated that Russia has the right to create a mechanism of protection from Court decisions "touching the national sovereignty, the basic constitutional principles".

There has also been criticism of the Court's structure. Loucaides wrote that by introducing in its Rules a Bureau, the Court created "a separate collective organ that had nothing to do with the structure of the Court organs according to the Convention".

Architecture

The building, which houses the court chambers and Registry (administration and référendaires), was designed by the Richard Rogers Partnership and completed in 1995. The design is meant to reflect, amongst other things, the two distinct components of the Commission and Court (as it was then). Wide scale use of glass emphasises the openness of the court to European citizens.

 

 

CONTACTS & LINKS

 

Contacting the Court:
 

Electronic forms are now available online for questions about the Court and how it works.  To access the electronic forms, click on the link: Contact the Court

 

Please note that the Court cannot give legal advice under any circumstances.
 

Access to the Court:
 

European Court of Human Rights
Council of Europe
67075 Strasbourg Cedex
France
Tel : +33 (0)3 88 41 20 18
Fax : +33 (0)3 88 41 27 30
List of public and other holidays
 

Information on how to send applications:
 

We would draw your attention to the fact that applications to the Court and all documents relating to the application may be sent only by post, even if they have been faxed beforehand.

 

Please bear in mind that any documents or questions relating to applications must also be sent to the Court by post.

 

Pending Cases

Access to case files

Activity Reports

Addendum to the Rules

Admissibility guide

All Protocols

Annual Reports

Application form online

Application pack

Archived news

Archives

 

 

 

Don Wales   Vs    Nelson Kruschandl, appellant in person in the European Court of Human Rights, Strasbourg

 

 

TRADE MARK OPPOSITION

A trade mark that was applied for by the Malcolm Campbell Heritage Trust (MCHT), was, while being processed by the Trade Marks Registrar, transferred to Donald Charles Wales in person. Donald Charles Wales prefers to be known, or is popularly known as Don Wales. 

 

The validity of that transfer from the MCHT to Mr Wales is the subject of an Application to the European Court of Human Rights under reference number 28536/09 (which includes other claims lodged in 2010, 2011 and 2012), where, the United Kingdom TM Registry refused to grant the Opponent in the proceedings a hearing at all, without security for costs being lodged amounting to some £2,000 - but where the Opponent was trapped in the judicial system as a prisoner, and as such (the British prison system is not compliant with the European Prison Rules as to earnings)* was not in a position by virtue of UK prison rules, to earn sufficient money to provide said security. We have a copy of the full grounds as lodged with the ECHR if anyone is interested. The applicable rules are reproduced below and the relevant sections that say work shall be assured and that equitable remuneration for that assured work shall be provided.

 

This particular Trade Mark rule would mean that any prisoner in the United Kingdom who applied for a trademark before he became a prisoner, would be unable to receive a hearing in opposition proceedings, a clear discrimination on the grounds of financial status. In other words, only those with means might achieve a trademark. However, prisoners are encouraged to prepare themselves for release back into society and society is supposed to help reintegration, such as working - or in this case trading. Clearly, the UK TM rules as they stand do not stack up against other courts, where prisoners (or anyone financially disadvantaged) receive assistance when it comes to fees. Such assistance is held to be in compliance with Article 6: the right to a fair hearing.

 

In this case the Trade Marks Registry ruled that if £2,000 was not lodged with them, they would deem the Opposition abandoned. In which case Mr Wales would end up with his trademark by default - without the grounds of the Opposition being heard.

 

The Opponent in this case wrote to the TM Registrar asking that the case might be put in abeyance until his release - which request the Registrar refused.

 

We understand that further information is due to be sent to the ECHR, to include a copy of the transcript below and details of prisoners earnings. Prisoners earnings in HMP Maidstone were at the time running between £5 and £10 a week, from which the prisoner had to pay for phone calls (at roughly six times the ordinary cost of phone calls) postages, sugar, coffee and decent toothpaste.

 

In European prisons, wages are close to that which one might earn as a civilian. I.e. a normal wage. If a normal wage was normal in UK prisons, the Trade Marks Registry could not have ruled that the Opponent in this case was unable to earn a living. In other words, the Trade Marks Registry was admitting on behalf of the UK that British prisons do not comply with the European Prison Rules 1987 (as amended).

 

The Opponent alleges that the transfer from the MCHT to Don Wales in person was in breach of their fiduciary duty to the Opponent, where he cites the Trustee Acts and Limitations Act. The Opponent alleges as trustees of trade mark application number 2315925 that the MCHT were under a duty to keep him informed as to potential transfers, but that the transfer to Mr Wales was effected without the MCHT notifying him beforehand, where he (the Opponent) is/was a beneficiary of Trust property.

 

The Opponent is an Appellant duly lodged with the ECHR in relation to his conviction, since May of 2009 and May of 2012 under Application number 28536/09, which as you can see from the letter of acknowledgement below - is for administrative reasons.

 

 

 

* European Prison Rules 1987 (extract)

 

Work

71. 

 

1. Prison work should be seen as a positive element in treatment, training and institutional management.

2. Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer.

3. Sufficient work of a useful nature, or if appropriate other purposeful activities shall be provided to keep prisoners actively employed for a normal working day.

4. So far as possible the work provided shall be such as will maintain or increase the prisoner's ability to earn a normal living after release.

5. Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners.

6. Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, the prisoners shall be able to choose the type of employment in which they wish to participate.

72. 

 

1. The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life. It should thus be relevant contemporary working standards and techniques and organised to function within modern management systems and production processes.

2. Although the pursuit of financial profit from industries in the institutions can be valuable in raising standards and improving the quality and relevance of training, the interests of the prisoners and of their treatment must not be subordinated to that purpose.

73. 

 

1. Work for prisoners shall be assured by the prison administration:

a. either on its own premises, workshops and farms; or

b. in cooperation with private contractors inside or outside the institution in which case the full normal wages for such shall be paid by the persons to whom the labor is supplied, account being taken of the output of the prisoners.

74. 

 

1. Safety and health precautions for prisoners shall be similar to those that apply to workers outside.

2. Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favorable than those extended by law to workers outside.

75. 

 

1. The maximum daily and weekly working hours of the prisoners shall be fixed in conformity with local rules or custom in regard to the employment of free workmen.

2. Prisoners should have at least one rest-day a week and sufficient time for education and other activities required as part of their treatment and training for social resettlement.

76. 

 

1. There shall be a system of equitable remuneration of the work of prisoners.

 

2. Under the system prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and to allocate a part of their earnings to their family or for other approved purposes.

3. The system may also provide that a part of the earnings be set aside by the administration so as to constitute a savings fund to be handed over to the prisoner on release.

 

 

[The reader might also like to know that prisoners in the UK are not allowed access to the internet and various means are used to deny them computer access for the preparation of complex cases. The Opponent in this case applied for what is termed a Justice Laptop, which is allowed in cell, but having obtained one, he was then shipped to another prison. The reason for shipping litigants about is so that they can remove any justice facilities during transit, and make prisoners re-apply at any new prison. The new prison then denies justice facilities. On the second occasion this prisoner applied for justice facilities, this time while in Maidstone Prison, the governors refused permission. That led to an application for a Judicial Review that took roughly 12 months to get to the High Court in the Strand, shortly before which HMP Maidstone said they'd provide a Justice Laptop (JL). Not long after receiving his JL the prisoner was once again moved to another prison. The whole process is designed by the Ministry of Justice to deny justice facilities to prisoners. In addition, prisoner are not informed of their rights. Certain PSOs (Prison Service Orders) and PSIs (Prison Service Instructions) are not freely available - once again, specifically to thwart any prisoner who is a litigant in person.]

 

Application to the European Court of Human Rights from HMP Maidstone

Scan of a typical ECHR receipt and accompanying envelope stamps

 

 


 

 

 

Video Conference Room,
21 Bloomsbury Street,
London, WC1B 3HF.
Friday, 28th October 2011
Before: MR. GEOFFREY HOBBS QC
(Sitting as the Appointed Person)

 

In the Matter of the Trade Marks Act 1994

-and-

In the Matter of Trade Mark Application No: 2315925

in the name of MR. DONALD WALES

-and-


Opposition thereto under No. 93515 by NELSON JAMES KRUSCHANDL

 

 


 

ECHR - YOUTUBE

 

 


Official and Unofficial

This subject matter is under investigation and we will provide you with more details as the facts emerge. The time that Mr Kruschandl spent behinds bars is the subject of an unauthorized Prison Diary. We understand that an authorized version of these Prison Diaries may follow after his Appeals have been heard in the European Court.


 

 

LINKS

 

http://www.ipo.gov.uk/types/tm/t-os/t-find/t-challenge-decision-results/o40011.pdf

http://www.ipo.gov.uk/types/tm/t-os/t-find/t-challenge-decision-results/o40011.pdf

http://www.uncjin.org/Laws/prisrul.htm

European_Court_of_Human_Rights

http://en.wikipedia.org/wiki/European_Court_of_Human_Rights

 

 

 

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