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European Convention on Human Rights
The European Convention on Human Rights (1950) was adopted under the auspices of the Council of Europe to protect human rights and fundamental freedoms. Most Council of Europe member states are party to the Convention; those that are not are required as a condition of their membership to accede to the convention at the earliest opportunity.
The official name of the Convention is the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Convention establishes the European Court of Human Rights. Any person who feels their rights have been violated under the Convention by a state party can take a case to the Court; the decisions of the Court are legally binding, and the Court has the power to award damages. 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 6 prohibits the death penalty except in time of war. The protocols accepted varied from State Party to State Party, though it is understood that State Parties should be party to as many protocols as possible.
Prior to the entry into force of Protocol 11, individuals did not have direct access to the Court; they had to apply to the European Commission on Human Rights , which if it found the case to be well-founded would launch a case in the Court on the individual's behalf. Protocol 11 abolished the Commission, enlarged the Court, and allowed individuals to take cases directly to it.
As of late 2002, thirteen protocols to the Covention 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.
Protocols amending the Convention
The Convention has been amended several times by means of protocols attached thereto. These amendments have only ever affected the Convention machinery, not the substantive content of the rights it protects. Unlike the substantive protocols, these protocols have achieved universal ratification among parties to the original Convention. The protocols themselves required universal ratification to enter into force, in order to maintain the institutional unity of the Convention machinery.
These protocols were:
- Protocol 3 (ETS 45, adopted 1963-05-06 )
- Protocol 5 (ETS 55, adopted 1966-01-20 )
- Protocol 8 (ETS 118, adopted 1985-03-19 )
- Protocol 9 (ETS 140, adopted 1990-11-06 )
- Protocol 10 (ETS 146, adopted 1992-03-25 )
- Protocol 11 (ETS 155, adopted 1994-05-11 )
- Protocol 14 (CETS 194, adopted 2004-05-13 )
Protocol 2 (ETS 44, adopted 1963-05-06 ), although it does not amend the text of the Convention as such, stipulates that it is to be treated as an integral part of the Convention, and has been consolidated into the Convention by Protocol 11.
Protocol 11 established a fundamental change in the machinery of the Convention. As noted above, the Commission was abolished, and individuals were permitted to apply directly to the court. This also necessitated changing the structure of the Court, to support its new, expanded role. Protocol 11 also abolished all the judicial functions of the Committee of Ministers. Protocol 11 also made necessary consequential amendments to those protocols extending its substantive protections.
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 admissable where:
- ... the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal. (Article 12 of the Protocol)
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 will only come into force once it has been ratified by all signatories of the Convention.
The other protocols (Protocols 1, 4, 6, 7, 12 and 13) add substantive rights to those protected by the Convention, and will be discussed below, after the discussion of those contained in the Convention itself.
The Convention has five main sections. The main right and freedoms are contained in Section I, which consists of Articles 2 to 18. Originally, Section II (Article 19) set up the Commission and the Court, Sections III (Articles 20 to 37) and IV (Aricles 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 - Obligation to respect human 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 - right to life
Article 2 protects the right of every person to their life. The article contains exceptions for the cases of lawful executions, and deaths as a result of "the use of force which is no more than absolutely necessary" in defending one's self or others, arresting a suspect or fugitive, and suppressing riots or insurrections.
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.
Article 3 - prohibition of 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 European Court of Human Rights has further held that this provision prohibits the extradition of a person to a foreign state if they are likely to be subjected there to torture. This article has been interpreted as prohibiting a state from extradicting an individual to another state if they are likely to suffer the death penalty. This article does not, however, on its own forbid a state from imposing the death penalty within its own territory.
Article 4 - prohibition of slavery
Article 4 prohibits slavery and forced labour, but excepted from this prohibitions are conscription, national service, prison labour, service exacted in cases of emergency or calamity, and "normal civic obligations".
Article 5 - right to liberty and security
Article 5 provides that everyone has the right to liberty and security of person.
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.
Security of person
The concept of security of the person has not yet been subject to interpretation by the Court. It has, however, been the object of consideration by the Supreme Court of Canada in distinction to the concept of 'Liberty'. In J.G. v. the Minister of Health and Community Services, the SCC held that the appellant's right to security of the person had been violated by the province of New Brunswick. The Court characterized the removal of a personís child by the state as a serious interference with the parentís psychological integrity. It is therefore an extraordinary remedy that can only be carried out in accordance with the principles of fundamental justice and, when not so carried out, a violation of the right to security of the person.
Article 6 - right to a 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 (adequate time and facilities to prepare a defence, access to legal representation, the ability to examine witnesess, 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.
Article 7 - No punishment without law
On the face of it, Article 7 provides for a prohibition on retrosopective criminality. However, its short title is taken as being a substantive part of the Article.
No punishment without law
Article 7 is taken to incorporate the principle of nulla poena sine lege, that is, that there can be no punishment for behaviour that is not defined as a criminal offence. This requires that the law be certain and ascertainable.
Prohibition on retrospective criminal offences
Article 7 prohibits the retrospective criminalisation of acts. No person may be punished for an act that was not a criminal offence at the time of its admission. 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 (possibly customary) international law. Article 7 also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was imposed.
Article 8 - right to respect for private life
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" 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 - right to freedom of thought, 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 - right to freedom of 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 - right to freedom of assembly and 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 - right to marry
Article 12 provides a right for men and women 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 traditional marriage, and that a wide margin of appreciation must be granted to parties in this area.
Article 13 - right to an 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 - prohibition of 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 the rights guaranteed by the Convention in time of emergency. This ability has been used, for example, by the UK to pass a law allowing certain prisoners to be held without trial (BBC 4 August, 2004).
Article 16 - exemption for political activities of aliens
Article 16 exempts restrictions on the political activities of aliens from the Convention.
Article 17 - prohibition of 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 (see e.g. Holocaust denial).
Article 18 - limitations on permitted restrictions of rights
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.
Protocol 1 - property, education, elections
Article 1 provides for the protection of private property. Article 2 provides for the right to an education, and the right for parents to have their children educated in accordance with their religious and other views. Article 3 provides for the right to regular, free and fair elections.
Protocol 4 - civil imprisonment, movement, expulsion
Article 1 prohibits the imprisonment of people due to "inability to fulfil a contractual obligation". Article 2 allows people to move freely within their nation, as well as the right to leave one's own nation. Article 3 prohibits the expulsion of nationals. Article 4 prohibits collective expulsion of aliens.
Protocol 6 - death penalty
Requires parties to restrict the application of the death penalty to times of war or national emergency.
Protocol 7 - expulsion, criminal appeals, compensation, double jeopardy, spousal equality
Article 1 prohibits "lawfully resident aliens" from being expelled unless the decision was reached according to the law, and grants the right to have the reason of their expulsion presented to them and to have their cases reviewed. Article 2 grants the right to appeal in all criminal matters. Article 3 grants compensation for wrongful convictions. Article 4 prohibits double jeopardy. Article 5 affirms the equality between spouses.
Protocol 12 - discrimination
Prohibits 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".
Protocol 13 - death penalty
Requires parties to abolish the death penalty completely.
- Human rights in Europe
- Human Rights Act 1998 for how the Convention has been implemented in the United Kingdom
- The Council of Europe should not to be confused with the Council of the European Union, which is not a party to the Convention and has no role in the administration of the European Court of Human Rights.
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