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Human Rights Quarterly 24.3 (2002) 736-780



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The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights

Geoff Gilbert


I. Introduction

This article will examine the jurisprudence of the European Court of Human Rights (Court), 1 as it relates to, and possibly impinges on, minority groups. The European Convention for the Protection of Human Rights and Fundamental [End Page 736] Freedoms (European Convention) 2 contains no minority rights provision akin to Article 27 of the International Covenant on Civil and Political Rights (ICCPR). 3 Therefore, there is no direct way for members of minority groups to claim minority rights at the Court, although the Court has held that member states are under an obligation to uphold "international standards in the field of the protection of human and minority rights." 4 In 1993, the Parliamentary Assembly of the Council of Europe, in Recommendation 1201, did propose a new protocol to the European Convention providing for minority rights. Recommendation 1201 was rejected by the Heads of State and Government meeting of the Council of Europe at its Vienna Summit in October 1993. 5 The Council of Europe did pioneer the Framework Convention for the Protection of National Minorities in 1995, 6 [End Page 737] but it contains no complaint mechanism for individuals or groups. Nevertheless, there is a burgeoning minority rights jurisprudence of the Court based on interpretation and application of the European Convention.

At present, the only reference to minorities can be found in Article 14 of the European Convention:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

National minority is undefined in Article 14, as is the case with every other international instrument dealing with minority rights. 7 In Gorzelik and Others v. Poland, 8 however, the Court held that while "the formulation of . . . a definition [of a national minority] would have presented a most difficult task, given that no international treaty—not even the Council of Europe's Framework Convention for the Protection of National Minorities—defines the notion of 'national minority,'" 9 it was prepared to review the legal process by which the state had denied national minority status to a minority group.

According to the Court, it is contrary to the European Convention to treat "any person, nongovernmental organization or group of individuals" in [End Page 738] a discriminatory fashion with respect to one of the listed grounds 10 without reasonable and objective justification, 11 although the applicant has to prove that case beyond reasonable doubt. 12 It also needs to be recognized, though, that the Court does not exercise as an appellate court. If a decision in a domestic court upholds the relevant European Convention obligations, even if the applicant is not satisfied with the outcome, the Court will not examine the case. 13

Nevertheless, while there is no minority rights provision in the European Convention, minority groups can qualify as victims of violations of European Convention obligations and bring applications to the Court qua group.

II. Article 34—Individual Applications

Article 34 states:

The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

Although it was eventually resolved by friendly settlement, 14 the Court deemed admissible a claim concerning reindeer herding licences by Muonio Saami Village (sameby). 15 The village, not the indigenous Saami villagers, was the applicant. In Metropolitan Church of Bessarabia and Others v. Moldova, 16 the Church was recognized as an applicant. On the [End Page 739] other hand, applicants were not recognized in Noack v. Germany, 17 which concerned the relocation of a Sorb 18 village in Germany...

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