Appunti di Lingua inglese (completi)

The European Dimension and Human Rights

The impact of European Union law and the European Convention on Human Rights

3.1 - Introduction

Peace in Europe is the result of a process begun step by step after the end of the Second World War with just six founder members: Belgium, France, Germany, Italy, Luxembourg and the Netherlands. The foundation of the European Union is interconnected with the principles of another important agreement, the European Convention on Human Rights, that was signed in Rome in 1950. Article 6 of the Treaty on European Union, that creates the European Coal and Steel Community, gives legal force to the rights protected by the ECHR.

EU is an abbreviation of European Union, abbreviations are typical of legal language because they permit a precise identification of an institution. The most important abbreviations in the European Union are:

• MEP → Member of the European Parliament
• TFEU → Treaty on the functioning of the EU
• ECB → European Central Bank

[BCE]➢ EEC → European Economic Community

[CEE]➢ ECSC → European Coal and Steel Community

[CECA]➢ EMU → Economic and Monetary Union

[ECHR]➢ European Convention on Human Rights

[CEDU]➢ ECJ → European Court of Justice

[EESC]➢ European Economic and Social Committee

[TEU]➢ Treaty on European Union

[CAP]➢ Common Agricultural Policy

[PAC]➢ CFSP → Common Foreign and Security Policy

3.2 - Languages in International legal contexts

In different international legal contexts the parties involved must make choices about the languages they wish to use in the cooperation, an example is represented in the case of a treaty. Treaty law is a major source of international law, when the parties agree on the text of the treaty they can choose one or more languages, deciding that each language text is equally authentic, this means that the text written in these languages is not merely official but is a legally valid text, so it can be interpreted and

applied by a court. Parties must decide which languages to use in the work of an international body or of a court, for example the European Courts of Human Rights. Different solutions have been adopted by the members of the United Nations, the Council of Europe and the European Union.

Language is mentioned in the text of the European Convention on Human Rights both in relation to non-discrimination, in relation to the right to liberty and security and the right to a fair trial. In fact, the ECHR says that anyone who is arrested shall be informed in a language which he understands, the same thing is necessary when a person charged with a criminal offence.

The Council of Europe

The Council of Europe is a set of 47 members and its aims are to protect human rights, pluralist democracy and the rule of law, for example an important result of the Council was the signing of the ECHR in Rome in 1950.

The Convention, which is a legally binding instrument, was inspired by the Universal Declaration of Human Rights.

Rights of the United Nations, which isn’t legally binding but only has indirect legal effects. After signing the Convention, the final step that States must take is the ratification, that is a step by which the international obligation is assumed in accordance with the national constitutional procedures of each state.

The ECHR is written in two authentic texts in English and in French, this means that it can exist an Italian version of the convention but it isn’t authentic and it can’t be applied by a judge.

The United Nations

The United Nations is an international organization born in 1945 as the Second World War came to a close, its aims were to prevent future wars, to maintain peace and security, to develop friendly relations between nations and to promote respect for human rights. The Charter of the United Nations is written in Chinese, French, Russian, English and Spanish, all these languages of the Charter are equally authentic; today, with the addition of Arabic, the

UN uses six languages in its intergovernmental meetings and documents.

The International Court of Justice

The International Court of Justice is the principal judicial organ of the United Nations and it has its seat in the Netherlands.

The official languages of the ICJ are French and English, this means that if the parties of the trial agree that the case shall be conducted in French, the judgement shall be delivered in French, the same thing is true if the parties chose English. But if there isn't an agreement on the language, each party can use the language which it prefers and the decision of the Court shall be given in French and English.

The UN decided to operate in a limited number of languages because it thinks that an international organization must avoid becoming a "Tower of Babel".

The European Union

In contrast with the UN, the European Union is criticised for its multilingualism, in fact the language of each member State has equal status as an official language of the EU.

For example treaties, that are the primary legal texts of European law, are written in all the official languages and they are all equally authentic. Today the EU has 28 Member States and 24 official languages but with Brexit the English risks to be lost because it was nominated only by the UK; but a European Union without English, a mother tongue also in Ireland and Malta and a lingua franca in the EU itself, doesn't seem likely. Multilingualism is essential to the functions of the Union and if we compare bodies like the United Nations, they don't have a comparable law-making function or the direct involvement of citizens, which are central features of the EU. A reason that justify the multilingualism of the Union is also that binding legal texts must be effective and accessible on an equal basis to the peoples of Europe in their own languages, this because an important principle says that the drafting of a legal act must be clear, simple and precise to ensure the equality of.

citizens before the law. This multilingual approach was established by the Treaties of Rome, which created the European Economic Community. There are two types of treaties:

• Founding treaties → these treaties create the Union and the Community, they establish the organs of the Union and grant them their powers, such treaties are also called constitutive treaties. (Example: Treaty of Rome)
• Accession treaties → an agreement by which a State can become a party to a pre-existing treaty; in the EU context it permits the process of enlargement of the Community.

Treaties are primary law in the EU legal system and EU acts such as regulations and directives are secondary legislation, that is published in all the working languages, so in all the official languages except Irish. 10

The European Court of Justice

In trials before the ECJ any one of the languages of the Member States may be used like the language of the case, depending on the parties to the action. The case is conducted in this

Language with simultaneous interpretation into other languages and judgements of the Court are issued in all official languages of the EU.

In direct actions (ricorsi diretti) the language of the case is the language used in the application (ricorso) while in references for a preliminary ruling, that is a type of proceeding in which a national court asks a pronouncement from the European Court, the language of the case is the language of the national court.

The principal treaties of the European Union are the Treaty of Rome, which established the European Economic Community, and the Treaty on European Union, which is also known as the Treaty of Maastricht.

The Treaty on European Union (TEU) of 1992, also known as the Treaty of Maastricht, established the European Union founded on the European Communities and introduced new forms of cooperation such as the police and judicial cooperation in criminal matters. In 2007, the Treaty of Lisbon modified the Treaty on European Union.

and renamed the Treaty of Rome from "Treaty on the EEC" to "Treaty on the Functioning of the European Union". One important aim of the Treaty of Maastricht was to introduce European citizenship to offer its citizens an area of freedom, security and justice without internal frontiers. Citizens at EU level involved rights and duties: all European citizens have the same rights and they can't be discriminated against on the basis of nationality. Freedom of movement creates the opportunity for citizens' mobility, now they can choose where to live in the Union; however these rights may have limits, for example it isn't permitted to take up residence in another States only for the purpose of obtaining social benefits. 3.4 - The European Convention on Human Rights The European Convention on Human Rights is an important instrument for the protection of fundamental rights and it was drawn up by the Council of Europe in 1950. In the preamble of the Convention theHigh Contracting Parties affirmed that they have the primary responsibility to secure the rights and freedoms defined in this Convention. The United Kingdom was one of the original signatories to the ECHR and it was bound to observe its provisions as part of British obligations under international law, however the UK Parliament didn't immediately enact legislation to incorporate it into British law. This step was only taken with the Human Rights Acts 1998. Before this Act of Parliament the courts didn't apply the Convention because they don't regard treaties as a direct source of law and it is necessary to incorporate the treaty with a legislative enactment at national level. In 1997, with the Prime Minister Tony Blair was introduced a bill to incorporate the main provisions of the ECHR into English law: the bill received the Royal Assent and came into force in 1998 with the name of Human Rights Act 1998. Under it public authorities have a positive duty to act in a way which is

compatible with Convention rights, if a victim takes proceedings and the court finds the public authority has acted incompatibly with Convention rights, the victim may have a remedy.

The Human Rights Act 1998 safeguards human rights directly before the British courts, in fact they have the power to make a declaration of incompatibility if a provision of primary legislation conflicts with a Convention right. However, the Act preserves the pre-existing balance of power between the legislature and the judiciary and also preserves the decision-making role of the executive. The enactment hasn't created fundamental law.

Module IV

THE LANGUAGE OF CRIMINAL LAW

Criminal prosecution and trial. Homicide and self-defence

4.1 - Introduction

Criminal law is a major form of social control; it differs from one society to another and changes over time, in fact criminal law depends on the views of the community, as interpre