Human Rights Quarterly 24.3 (2002) 736-780
This article will examine the jurisprudence of the European Court of Human Rights (Court), as it relates to, and possibly impinges on, minority groups. The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) contains no minority rights provision akin to Article 27 of the International Covenant on Civil and Political Rights (ICCPR). 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." 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. The Council of Europe did pioneer the Framework Convention for the Protection of National Minorities in 1995, 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:
National minority is undefined in Article 14, as is the case with every other international instrument dealing with minority rights. In Gorzelik and Others v. Poland, 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,'" 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 a discriminatory fashion with respect to one of the listed grounds without reasonable and objective justification, although the applicant has to prove that case beyond reasonable doubt. 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.
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.
Article 34 states:
Although it was eventually resolved by friendly settlement, the Court deemed admissible a claim concerning reindeer herding licences by Muonio Saami Village (sameby). The village, not the indigenous Saami villagers, was the applicant. In Metropolitan Church of Bessarabia and Others v. Moldova, the Church was recognized as an applicant. On the other hand, applicants were not recognized in Noack v. Germany, which concerned the relocation of a Sorb village in Germany so as to permit mining for lignite. The applicants consisted of thirteen villagers, the evangelical community and DOMOWINA, an organization defending Sorb interests. DOMOWINA was held to have no standing to bring a complaint "contesting a measure that affects its members." Groups and organizations can bring claims, but they must be victims in their own right.
That a community might have standing opens up various possibilities for...