II Council of Europe
| Author | Leo Zwaak |
| Published date | 01 March 1994 |
| Date | 01 March 1994 |
| DOI | http://doi.org/10.1177/016934419401200105 |
| Subject Matter | Part B: Human Rights News |
NQHR
1/1994
competent bodies,
was
organized on 9 October 1993 following the fourth session of the
Committee. This meeting could be an important occasion to pursue the consideration of
the question
of
indicators, with the aim of developing aright-by-right approach in the light
of fundamental human rights principles. Areport of this meeting will be discussed during
the next session
of
the
Committee.
Following the general discussion on children in armed conflict during the two
previous sessions, the Committee had decided to devote one day of its fourth session to
ageneral discussion on the economic exploitation of children.
The
decision to consider
this topic reflected the importance of the issue in the framework
of
the promotion and
protection of the rights of the child; the urgency of creating awareness and raising concern
at the growing number
of
children in situation of economic exploitation; the need for
integrated and concerted action by governments, United Nations bodies and other
competent bodies active in the field
of
the rights of the child, as well as the decisive role
the Convention on the Rights
of
the Child could play in that regard. A number of
organizations and bodies made statements during the day of general discussion, during
which situations
of
child labour, including the question of domestic servants, child
prostitution and pornography and sale
of
children, were considered. Particular emphasis
was
put
on the need for attention in policies for the situation
of
children, whether they are
adopted by international financial institutions, development agencies or Governments.
Attention was also
drawn
to the need to respect the dignity of the child, while enhancing
the values of solidarity, participation and equity. The discussion made clear the need for
acomprehensive
and
concerted action for the prevention, protection and rehabilitation.
The
need to strengthen preventive actions was stressed and education was referred to in
that regard as an essential tool. Recommendations were also made in the field of the
protection of the rights of the child including the establishment
of
an ombudsperson who
might intervene
and
assist the child victim of economic exploitation. The Committee
decided to establish a working group to prepare, in the light of the discussion and of the
provisions of the Convention, a set
of
recommendations to be considered at its next
session. In view
of
the fact that 1994 will be the International Year
of
the Family, the
Committee recognized the importance
of
discussing, in this framework, the topic "The
rights of the child within the family environment - the role
of
the family in the promotion
of the rights of the child". The fifth session of the Committee will take place from 10 to
28 January 1994.
At
this session, the Committee will examine reports from Belarus,
Comlombia,
France,
Mexico, Namibia, Pakistan and the Czech Republic on their
compliance with the Convention.
nCOUNCIL
OF
EUROPE
Leo Zwaak
A.
European
Court
of
Human
Rights
Article 5
ECHR:
Right
to liberty
and
security of person;
Article 10
ECHR:
Freedom of expression;
Article 64
ECHR:
Reservations.
25 August 1993, Chorherr (Austria), A 266-B. The application concerned the applicant's
arrest and detention in connection with a military parade. The applicant complains that his
arrest and detention were in violation of his right to freedom and security of person and
constituted an unjustified interference with his freedom of expression. According to the
42
Human Rights News
Government, the contested measures were founded on laws covered by the Austrian
reservation in respect
of
Article 5 BCHR. The validity
of
the reservation had to be examined
in the light
of
Article 64 BCHR. Only two of them need to be examined in the instant case:
the prohibition of reservations
'of
a general character' and the requirement that the
reservation should contain 'a brief statement
of
the law concerned'. The other conditions
were manifestly fulfilled and compliance therewith was not moreover in dispute before the
Court. As regards the 'general character' of the reservation the Court noted that the Austrian
reservation encompassed a limited number of laws which, taken together, constituted a well-
defined and coherent body
of
substantive and procedural provisions. The provisions to which
the reservation applied in this case were all in force at the time
of
Austria's reservation.
It
followed that the wording of the reservation in question did not attain, in relation to the
provisions in issue here, the degree of generality prohibited by Article 64(1) BCHR. As
regards the need for a 'brief statement of the law concerned' reference was made to the
Federal Official Gazette which made it possible to identify the precise laws and to obtain any
information regarding them. According to the Court this provided safeguard against any
interpretation which would unduly extend the field of application of the reservation.
Accordingly, the reservation complied with Article 64(2) BCHR. In sum, the reservation was
compatible with Article 64 and there was no violation
of
Article 5 BCHR.
It
was not in
dispute that there had been an interference with the exercise
of
the applicant's right to
freedom
of
expression. The interference was prescribed by law and there were no grounds
for doubting that the arrest in issue was not pursued in order to prevent disorder. The Court
referred to the States' margin
of
appreciation which extended in particular to the choice of
means to be used to ensure that lawful manifestations could take place peacefully. The Court
noted that the nature, importance and scale of the military parade could appear to the police
to justify the corresponding security operation. The applicant must have realised that his
conduct might lead to a disturbance requiring measures of restraint, which, moreover, had
been by no means excessive. In short, the authorities had not overstepped their margin of
appreciation. There had been no violation of Article 10 BCHR.
23 November 1993, Navarra (France), A 273-B. In November 1985 the applicant was
charged with armed robbery and remanded in custody. An application by him for his release
was rejected on 24 March 1986 by an investigating judge at the Nice tribunal de grande
instance. On 23 April 1986 the Indictment Division of the Aix-en-Provence Court
of
Appeal
declared inadmissible an appeal filed by him on 25 March 1986 against that decision, which
it quashed on the ground that the application had not been submitted in accordance with
procedural requirements. That decision was overturned by the Court
of
Cassation; it remitted
the applicant's case to the Indictment Division of the Montpellier Court
of
Appeal, which on
24 October 1986 upheld the decision of 24 March 1986 rejecting his application for release.
On 24 February 1987 the Court of Cassation dismissed the applicant's appeal; it rejected his
submission that the MontpeIIier Court of Appeal had failed to examine his complaint that
there had been a violation
of
Article 5(4) of the Convention on account
of
the length
of
the
proceedings. In November 1987 the applicant was released and in December 1987 the
tribunal de grande instance made an order finding that he had no case to answer. The
Government contended, as they had already done before the Commission, that the applicant
had failed to exhaust his domestic remedies, inasmuch as he had not brought an action for
compensation against the State under Article L 781-1 of the Code of Judicial Organisation.
The Court dismissed this objection (unanimously). The article in question circumscribed the
State's liability very narrowly. In addition the applicant had not claimed to be the victim of
a denial
of
justice or even
of
gross negligence. The Court observed that the right to a speedy
43
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