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The Convention for the Protection of Human Rights and Fundamental Freedoms (also called the "European Convention on Human Rights" and "ECHR"), was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms in Europe. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.

The Convention established the European Court of Human Rightsmarker. Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. The decisions of the Court are not automatically legally binding, but the Court does have the power to award damages. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). The European Convention is still the only international human rights agreement providing such a high degree of individual protection. State parties can also take cases against other state parties to the Court, although this power is rarely used.

The Convention has several protocol. For example, Protocol 13 prohibits the death penalty. The protocols accepted vary from State Party to State Party, though it is understood that state parties should be party to as many protocols as possible.

History

The Convention was drafted by the Council of Europe after World War II. Sir David Maxwell-Fyfe was the Chair of the Council's legal and administrative division from 1949 to 1952, and oversaw the drafting of Convention. It was designed to incorporate a traditional civil liberties approach to securing "effective political democracy", from the strongest traditions in the United Kingdom, France and other member states of Europe. The Convention was opened for signature on 4 November 1950 in Rome. It was ratified and entered into force on 3 September 1953. It is overseen by the European Court of Human Rightsmarker in Strasbourg, and the Council of Europe. Until recently, the Convention was also overseen by a European Commission on Human Rights.

Drafting

The Convention is drafted in broad terms, in a similar (albeit more modern) manner to the English Bill of Rights, the American Bill of Rights, the French Declaration of the Rights of Man or the first part of the German Basic law. Statements of principle are, from a legal point of view, not determinative and require extensive "interpretation" by courts to bring out meaning in particular factual situations.

Convention articles

As amended by Protocol 11, the Convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions.

Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the Court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high-level machinery for the operation of, respectively, the Commission and the Court, and Section V contained various concluding provisions.

Many of the Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) - the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) - which excepts certain uses of force leading to death).

Article 1 - respecting rights

Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a Contracting State's own national territory; the obligation to secure Convention rights then also extends to foreign territory, such as occupied land in which the State exercises effective control.

Article 2 - life

Article 2 protects the right of every person to their life. The first paragraph of the article contains an exception for the lawful execution, while the second paragraph provides that death resulting from defending one self or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary".

This right does also not derogate under article 15 of the convention during peacetime. The exemption for the case of lawful executions is further restricted by Protocols 6 and 13 (see below), for those parties who are also parties to those protocols.

The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann v. United Kingdom it ruled that the exception contained in the second paragraph do not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.

The Court has ruled that states have three main duties under Article 2:

  1. a duty to refrain from unlawful killing,
  2. a duty to investigate suspicious deaths and,
  3. in certain circumstances, a positive duty to prevent foreseeable loss of life.


Article 3 - torture

Article 3 prohibits torture, and "inhuman or degrading treatment or punishment". There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention.

The Court have emphasised the fundamental nature of Article 3 in holding that the prohibition is made in "absolute terms ... irrespective of a victim's conduct." The Court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state.

Initially the Court took a restrictive view on what consisted of torture, preferring to find that states had inflicted inhuman and degrading treatment. Thus the court held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture. In fact the Court only found a state guilty of torture in 1996 in the case of a detainee who was suspended by his arms whilst his hands were tied behind his back. Since then the Court has appeared to be more open to finding states guilty of torture and has even ruled that since the Convention is a "living instrument", treatment which it had previously characterised as inhuman or degrading treatment might in future be regarded as torture.

Article 4 - servitude

Article 4 prohibits slavery, servitude and forced labour but exempts labour:
  • done as a normal part of imprisonment,
  • in the form of compulsory military service or work done as an alternative by conscientious objectors,
  • required to be done during a state of emergency, and
  • considered to be a part of a person's normal "civic obligations."


Article 5 - liberty and security

Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept - security of the person has not been subject to separate interpretation by the Court.

Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides the right to be informed in a language one understands of the reasons for the arrest and any charge against them, the right of prompt access to judicial proceedings to determine the legality of one's arrest or detention and to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article.



Article 6 - fair trial

Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).

The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italymarker and Francemarker. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. Turkey now adopted a law abolishing these courts in compliance with the Article.

Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.

Article 7 - retrospectivity

Prohibits the retrospective criminalisation of acts and omissions. No person may be punished for an act that was not a criminal offence at the time of its commission. The article states that a criminal offence is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under their domestic law at the time, so long as it was prohibited by international law. The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed.

Article 7 incorporates the legal principle nullum crimen, nulla poena sine lege into the convention.

Article 8 - privacy

Article 8 provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child).

Article 9 - conscience and religion

Article 9 provides a right to freedom of thought, conscience and religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"

Article 10 - expression

Article 10 provides the right to freedom of expression, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This right includes the freedom to hold opinions, and to receive and impart information and ideas.



Article 11 - association

Article 11 protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".



Article 12 - marriage

Article 12 provides a right for women and men of marriageable age to marry and establish a family.

Despite a number of invitations, the Court has so far refused to apply the protections of this article to same-sex marriage. The Court has defended this on the grounds that the article was intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to parties in this area.

In Goodwin v United Kingdom the Court ruled that a law which still classified post-operative transsexual persons under their pre-operative sex, violated article 12 as it meant that transsexual persons were unable to marry individuals of their post-operative opposite sex. This reversed an earlier ruling in Rees v United Kingdom. This did not, however, alter the Court's understanding that Article 12 protects only different-sex couples.

Article 13 - effective remedy

Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free-standing and separately actionable infringement of the Convention.

Article 14 - discrimination

Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways, and narrow in others. On the one hand, the article protects against discrimination based on any of a wide range of grounds. The article provides a list of such grounds, including sex, race, colour, language, religion and several other criteria, and most significantly providing that this list is non-exhaustive. On the other hand, the article's scope is limited only to discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex - Article 14 - in the enjoyment of the right to freedom of expression - Article 10). Protocol 12 extends this prohibition to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long as it is provided for in national law.

Article 15 - derogations

Article 15 allows contracting states to derogate from certain rights guaranteed by the Convention in time of "war or other public emergency threatening the life of the nation". The Court is quite permissive in accepting a state's derogations from the Convention but applies a higher degree of scrutiny in deciding whether measures taken by states under a derogation are, in the words or Article 15, "strictly required by the exigencies of the situation". Thus in A v United Kingdom, the Court dismissed a claim that a derogation lodged by the British government in response to the September 11 attacks was invalid, but went on to find that measures taken by the United Kingdom under that derogation were disproportionate. [2009] ECHR 301] paras. 181 and 190. In order for a derogation itself to be valid, the emergency giving rise to it must be: * actual or imminent, although states do not have to wait for disasters to strike before taking preventive measures,''A v United Kingdom'' [http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=847470&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 [2009] ECHR 301 para. 177.
  • involve the whole nation, although this does exclude emergencies which are confined to regions,
  • threaten the continuance of the organised life of the community,
  • exceptional such that measures and restriction permitted by the Convention would be "plainly inadequate" to deal with the emergency.


Article 16 - aliens

Article 16 allows states to restrict the political activity of foreigners. The Court has ruled that European Union member states cannot consider the nationals of other member states to be aliens.

Article 17 - abuse of rights

Article 17 provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. This addresses instances where states seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights (for example where an individual issues a death threat).

Article 18 - permitted restrictions

Article 18 provides that any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided. For example, Article 5, which guarantees the right to personal freedom, may be explicitly limited in order to bring a suspect before a judge. To use pre-trial detention as a means of intimidation of a person under a false pretext is therefore a limitation of right (to freedom) which does not serve an explicitly provided purpose (to be brought before a judge), and is therefore contrary to Article 18.

Convention protocols

, fourteen protocols to the Convention have been opened for signature. These can be divided into two main groups: those changing the machinery of the convention, and those adding additional rights to those protected by the convention. The former require unanimous ratification before coming into force, while the latter are optional protocols which only come into force between ratifying member states (normally after a small threshold of states has been reached).


For the first Protocol, Monacomarker and Switzerlandmarker have signed but never ratified. Andorramarker has neither signed nor ratified.

Protocol 1, Article 1 - property

Article 1 provides for the rights to the peaceful enjoyment of one's possessions.

Protocol 1, Article 2 - education

Article 2 provides for the right not to be denied an education and the right for parents to have their children educated in accordance with their religious and other views. It does not however guarantee any particular level of education of any particular quality (Belgian linguistic case).

Protocol 1, Article 3 - elections

Article 3 provides for the right to regular, free and fair elections.



Protocol 4 - civil imprisonment, free movement, expulsion

Article 1 prohibits the imprisonment of people for breach of a contract. Article 2 provides for a right to freely move within a country once lawfully there and for a right to leave any country. Article 3 prohibits the expulsion of nationals and provides for the right of an individual to enter a country of his or her nationality. Article 4 prohibits the collective expulsion of foreigners.

Spainmarker, Turkeymarker and the United Kingdommarker have signed but never ratified Protocol 4. Andorramarker, Greecemarker and Switzerlandmarker have neither signed nor ratified this protocol.

Protocol 6 - restriction of death penalty

Requires parties to restrict the application of the death penalty to times of war or "imminent threat of war".

Every Council of Europe member state has signed and ratified Protocol 6, except Russiamarker who has signed but not ratified.

Protocol 7 - crime and family

  • Article 1 provides for a right to fair procedures for lawfully resident foreigners facing expulsion.
  • Article 2 provides for the right to appeal in criminal matters.
  • Article 3 provides for compensation for the victims of miscarriages of justice.
  • Article 4 prohibits the re-trial of anyone who has already been finally acquitted or convicted of a particular offence (Double jeopardy).
  • Article 5 provides for equality between spouses.


Despite having signed the protocol more than twenty years ago, Belgiummarker, Germanymarker, the Netherlandsmarker, Spainmarker and Turkeymarker have never ratified it. The United Kingdommarker has neither signed nor ratified the protocol.

Protocol 12 - discrimination

Applies the current expansive and indefinite grounds of prohibited discrimination in Article 14 to the exercise of any legal right and to the actions (including the obligations) of public authorities.

The Protocol entered into force on 1 April 2005 and has ( ) been ratified by 17 member states. Several member states — namely Bulgariamarker, Denmarkmarker, Francemarker, Lithuaniamarker, Maltamarker, Monacomarker, Polandmarker, Swedenmarker, Switzerlandmarker and the United Kingdommarker — have not signed the protocol.

The United Kingdom Government has declined to sign Protocol 12 on the basis that they believe the wording of protocol is too wide and would result in a flood of new cases testing the extent of the new provision. They believe that the phrase "rights set forth by law" might include international conventions to which the UK is not a party, and would result in incorporation of these instruments by stealth. It has been suggested that the protocol is therefore in a kind of catch-22, since the UK will decline to either sign or ratify the protocol until the European Court of Human Rightsmarker has addressed the meaning of the provision, while the court is hindered in doing so by the lack of applications to the court concerning the protocol caused by the decisions of Europe's most populous states — including the UK — not to ratify the protocol. The UK Government, nevertheless, "agrees in principle that the ECHR should contain a provision against discrimination that is free-standing and not parasitic on the other Convention rights".

Protocol 13 - complete abolition of death penalty

Provides for the total abolition of the death penalty.

Procedural and institutional protocols

The Convention's provisions affecting institutional and procedural matters has been altered several times by mean of protocols. These amendments have, with of the exception of Protocol 2, amended the text of the convention. Protocol 2 did not amend the text of the convention as such, but stipulated that it was to be treated as an integral part of the text. All of these protocols have required the unanimous ratification of all the member states of the Council of Europe to enter into force.

Protocol 11
Protocols 2, 3, 5, 8, 9 and 10 have now been superseded by Protocol 11 which entered into force on 1 November 1998. It established a fundamental change in the machinery of the convention. It abolished the Commission, allowing individuals to apply directly to the Court, which was given compulsory jurisdiction and altered the latter's structure. Previously states could ratify the Convention without accepting the jurisdiction of the Court of Human Rights. The protocol also abolished the judicial functions of the Committee of Ministers.

Protocol 14
Protocol 14 follows on from Protocol 11 in further improving the efficiency of operation of the Court. It seeks to "filter" out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member state. Furthermore a case will not be considered admissible where an applicant has not suffered a "significant disadvantage". This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject-matter of the application had already been considered by a national court.

A new mechanism is introduced with Protocol 14 to assist enforcement of judgements by the Committee of Ministers. The Committee can ask the Court for an interpretation of a judgement and can even bring a member state before the Court for non-compliance of a previous judgement against that state.

Protocol 14 also allows the European Union to accede to the Convention, an issue which also depended on the ratification of the Lisbon Treaty, in light of the fact that the European Community previously lacked the competence to accede to human rights treaties.

The protocol has been signed by every Council of Europe member state. Currently only Russia has not yet ratified the protocol. It will only come into force only when it has been ratified by all Council of Europe member states.

In 2009, a provisional protocol No. 14bis was opened for signature. It allows single judges to reject manifestly inadmissible applications against protocol's member states and extends the competence of three-judge committees to declare applications against protocol's member states admissible and decide on their merits where there already is a well-established case law of the Court.

Citation

The ECHR may be cited in academic works in a number of ways. The European Treaty Series citation is "Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, Article 1, para 2" for the second paragraph of the first article. Citation of the treaty is never by page number.

See also



Notes

  1. The Council of Europe should not be confused with the Council of the European Union or the European Council. The European Union is not a party to the Convention and has no role in the administration of the European Court of Human Rights.
  2. Resolution 1031 (1994) on the honouring of commitments entered into by member states when joining the Council of Europe
  3. (1995) 21 EHRR 97
  4. (1995) 21 EHRR 97 at para. 148
  5. Jacobs & White, p. 56
  6. Chahal v. United Kingdom (1997) 23 EHRR 413.
  7. Chahal v. United Kingdom (1997) 23 EHRR 413; Soering v. United Kingdom (1989) 11 EHRR 439.
  8. Ireland v. United Kingdom (1979-80) 2 EHRR 25.
  9. Aksoy v. Turkey (1997) 23 EHRR 553. The process was referred to by the Court as "Palestinian hanging" but more commonly known as Strappado.
  10. Selmouni v. France (2000) 29 EHRR 403 at para. 101.
  11. Aksoy v. Turkey (1997) 23 EHRR 553 para 70.
  12. Greek case (1969) 12 YB 1 at 71-72, paras. 152-154.
  13. In Piermont v. France 27 April 1995, 314 ECHR (series A).
  14. Russia enshrines ban on death penalty.
  15. Information on the current state of the protocol.
  16. 2004 UK Government's position
  17. Article 1(8) of the Lisbon Treaty
  18. See paragraph 6 of Opinion (2/92) of the European Court of Justice on "Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms" 1996 E.C.R. I-1759 (in French).
  19. Protocol No. 14bis to the ECHR


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