| The Convention for the Protection of Human Rights and Fundamental Freedoms | |
|---|---|
| Signed | 4 November 1950 |
| Location | Rome |
| Effective | 3 September 1953 |
| Signatories | Council of Europe member states |
| Depositary | Secretary General of the Council of Europe |
| Languages | English and French |
| European Convention for the Protection of Human Rights and Fundamental Freedoms at Wikisource | |
The Convention for the Protection of Human Rights and Fundamental Freedoms[1] (commonly known as the European Convention on Human Rights (ECHR))[2] is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,[3] the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.[4]
The Convention established the European Court of Human Rights (ECtHR). 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. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained. 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 protocols. 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.
The development of a regional system of Human Rights protection operating across Europe can be seen as a direct response to twin concerns. First, in the aftermath of the Second World War, the convention, drawing on the inspiration of the Universal Declaration of Human Rights can be seen as part of a wider response of the Allied Powers in delivering a human rights agenda through which it was believed that the most serious human rights violations which had occurred during the Second World War (most notably, the Holocaust) could be avoided in the future. Second, the Convention was a response to the growth of Communism in Eastern Europe and designed to protect the member states of the Council of Europe from communist subversion. This, in part, explains the constant references to values and principles that are "necessary in a democratic society" throughout the Convention, despite the fact that such principles are not in any way defined within the convention itself.[5]
The Convention was drafted by the Council of Europe after World War II in response to a call issued by Europeans from all walks of life who had gathered at the Hague Congress (1948). When over 100 parliamentarians from the twelve member nations of the Council of Europe came together in Strasbourg in the summer of 1949 for the first ever meeting of the Council's Consultative Assembly, drafting a "charter of human rights" and creating a Court to enforce it was high on their agenda. British MP and lawyer Sir David Maxwell-Fyfe, the Chair of the Assembly's Committee on Legal and Administrative Questions, guided the drafting of the Convention. As a prosecutor at the Nuremberg Trials, he had seen first-hand how international justice could be effectively applied. With his help, French former minister and Resistance fighter Pierre-Henri Teitgen submitted a report[6] to the Assembly proposing a list of rights to be protected, selecting a number from the Universal Declaration of Human Rights just agreed to in New York, and defining how the enforcing judicial mechanism might operate. After extensive debates,[7] the Assembly sent its final proposal[8] to the Council's Committee of Ministers, which convened a group of experts to draft the Convention itself.
The Convention 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 the fledgling Council 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 Rights in Strasbourg, and the Council of Europe. Until recently, the Convention was also overseen by a European Commission on Human Rights.
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.
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 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.
In Loizidou v Turkey,[9] the European Court of Human Rights ruled that jurisdiction of member states to the convention extended to areas under that state's effective control as a result of military action.
Article 2 protects the right of every person to their life. The first paragraph of the article contains an exception for the lawful executions, although this exception has largely been superseded by Protocols 6 and 13. Protocol 6 prohibited the imposition of the death penalty in peacetime, while Protocol 13 extended the prohibition to all circumstances. (For more on Protocols 6 and 13, see below.)
The second paragraph of Article 2 provides that death resulting from defending oneself 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".
Signatory states to the Convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war.
The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann v. United Kingdom[10] 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.[11]
The Court has ruled that states have three main duties under Article 2:
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."[13] 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.[14]
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.[15] 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.[16] 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.[17]
Article 4 prohibits slavery, servitude and forced labour but exempts labour:
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 reasonable 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 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 Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. In compliance with this Article, Turkey has now adopted a law abolishing these courts.
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.
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 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 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 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, but allows restrictions for:
Relevant cases are:
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 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 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 contains a prohibition of discrimination. This prohibition is broad in some ways, and narrow in others. It is broad in that it prohibits discrimination under a potentially unlimited number of grounds. While the article specifically prohibits discrimination based on "sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status", the last of these allows the court to extend to Article 14 protection to other grounds not specifically mentioned such as has been done regarding discrimination based on a person's sexual orientation.
At the same time the article's protection is limited in that it only prohibits 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 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". Permissible derogations under article 15 must meet three substantive conditions:
In addition to these substantive requirements the derogation must be procedurally sound. There must be some formal announcement of the derogation and notice of the derogation, any measures adopted under it, and the ending of the derogation must be communicated to the Secretary-General of the Council of Europe[18]
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 of 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.[19]
In order for a derogation itself to be valid, the emergency giving rise to it must be:
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.[23]
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 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.
As of January 2010[update], fifteen 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).
This Protocol contains three different rights in which the signatories could not agree to place in the Convention itself. Monaco and Switzerland have signed but never ratified Protocol 1.[24]
Article 1 provides for the right to the peaceful enjoyment of one's possessions.
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.[25]
Although phrased in the Protocol as a negative right, in Şahin v. Turkey the Court ruled that:
Article 3 provides for the right to regular, free and fair elections.
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.
Spain, Turkey and the United Kingdom have signed but never ratified Protocol 4. Andorra, Greece and Switzerland have neither signed nor ratified this protocol.
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 Russia who has signed but not ratified.[27]
Despite having signed the protocol more than twenty years ago, Belgium, Germany, the Netherlands, Spain and Turkey have never ratified it. The United Kingdom has neither signed nor ratified the protocol.
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 (As of July 2009[update]) been ratified by 17 member states. Several member states — namely Bulgaria, Denmark, France, Lithuania, Malta, Monaco, Poland, Sweden, Switzerland and the United Kingdom — have not signed the protocol.[28]
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 Rights 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".[29] The first judgment finding a violation of Protocol No. 12 was delivered in 2009 — Sejdić and Finci v. Bosnia and Herzegovina.
Provides for the total abolition of the death penalty.[30] As of May 2011[update] the majority of the Council of Europe has ratified Protocol 13. Poland and Armenia have signed but not ratified the protocol, whilst Russia and Azerbaijan have not signed it.[31]
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.
Protocols 2, 3, 5, 8, 9 and 10 have now been superseded by Protocol 11 which entered into force on 1 November 1998.[32] 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 follows on from Protocol 11 in proposing to further improving the efficiency 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 was introduced by 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 for European Union accession to the Convention. The protocol has been ratified by every Council of Europe member state, Russia being last in February 2010. It entered into force on 1 June 2010.[33]
A provisional Protocol 14bis had been opened for signature in 2009.[34] Pending the ratification of Protocol 14 itself, 14bis was devised to allow the Court to implement revised procedures in respect of the states which have ratified it. It allowed single judges to reject manifestly inadmissible applications made against the states who have ratified the protocol. It also extended the competence of three-judge chambers to declare applications made against those states admissible and to decide on their merits where there already is a well-established case law of the Court. Now that all Council of Europe member states have ratified Protocol 14, Protocol 14bis has lost it raison d'être and according to its own terms ceased to have any effect when Protocol 14 entered into force on 1 June 2010.
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