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
. 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 Rights. 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 protocols. For example, Protocol 6 prohibits the death penalty except in time of war. 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.
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 of Human Rights, which if it found the case to be well-founded would launch a case in the Court on the individual's behalf. Furthermore, when ratifying the Convention, States could opt not to accept the specific clause providing individual access to the Commission, thus limiting the possibility of jurisdictional protection for individuals. Protocol 11 abolished the Commission, enlarged the Court (assigning to it functions and powers which were previously held by the Commission), and allowed individuals to take cases directly to it. By ratifying Protocol 11, all state parties accepted the jurisdiction of the Court to rule over cases brought against them by individuals.
History and nature
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 November 4, 1950 in Rome. It was ratified and entered into force on September 3, 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 way procedure works, is that a claimant in a member state must exhaust all avenues of appeal in his home country. If that is done, and he feels that his human rights are not adequately protected by national law, he may appeal to the Court. Originally, a Commission would judge the admissibility of appeals, and also offer opinions in cases that were admissible. But this system was abandoned.
The nature of the Convention is that it is drafted in broad terms, in a similar method (albeit more modern) 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 Grundgesetz. 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).
Art. 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.
Art. 2 - 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.
This right does also not derogate under article 15 of the convention during peacetime.
Art. 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 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 extraditing 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.
Art. 4 - servitude
Article 4 prohibits slavery
and forced labour
, but excepted from these prohibitions are conscription
, national service, prison labour, service exacted in cases of emergency or calamity, and "normal civic obligations".
Art. 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.
Art. 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 in a criminal case (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.
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.
Art. 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 (possibly customary
) 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 principle of legality (nullum crimen, nulla poena sine lege) into the convention.
Art. 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).
Art. 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"
Art. 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.
Art. 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".
Art. 12 - marriage
Article 12 provides a right for men and women of marriageable age
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.
Prohibiting a post-operative transsexual from marrying a person whose sex is different from that transsexual's new sex is a breach of Article 12. (Goodwin v. United Kingdom; I. v. United Kingdom.) This 2002 holding represented a reversal of the Court's previous opinion (Rees v. United Kingdom). It did not, however, alter the understanding that Article 12 protects only different-sex couples.
Art. 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.
Art. 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, color, 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.
Art. 15 - derogations
Article 15 allows contracting states to derogate
from the rights guaranteed by the Convention in time of "war or other public emergency threatening the life of the nation". Derogation from the rights in the Convention, however, is subject to a number of qualifying criteria, these are that: the state of affairs relied on is temporary and exceptional; the circumstances are grave enough to threaten the organised life of the entire community; the emergency is actual or imminent in that the emergency is about to occur; the threat is to the life of the nation which seeks to derogate; and the measures for which the derogation is required are "strictly required by the exigencies of the situation".
In November 2001 the United Kingdom government held that there was such a dire state of emergency in the country that it was necessary to implement Part 4 of the Anti-terrorism, Crime and Security Act 2001 and detain a number of terrorist suspects indefinitely without charge in Belmarsh Prison pending deportation. This lasted until April 2005, after the Law Lords ruled on 16 December 2004 that the claim was not consistent with the Convention. Lord Hoffmann went further to say:
The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.
Other instances where this derogation has been used have been in Ireland between July and December 1957, Greece in 1969, Ireland in 1978, Northern Ireland from 1988, and Turkey in 1996.
Art. 16 - aliens
Article 16 allows states to restrict the political activity of foreigners.The Court has ruled that European Union member state cannot consider the nationals of other member states to be aliens.
Art. 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).
Art. 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.
As of May 2006, 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, Monaco and Switzerland have signed but never ratified. Andorra has neither signed nor ratified.
Prot. 1, Art.1 - property
Article 1 provides for the rights to the peaceful enjoyment of one's possessions.
Prot. 1, Art.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
Prot. 1, Art.3 - elections
Article 3 provides for the right to regular, free and fair elections.
Prot. 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.
Spain, Turkey and the United Kingdom have signed but never ratified Protocol 4. Andorra, Greece and Switzerland have neither signed nor ratified this protocol.
Prot. 6 - death restrictions
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.
Prot. 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, Belgium, Germany, the Netherlands, Spain and Turkey have never ratified it. Andorra and the United Kingdom have neither signed nor ratified the protocol.
Prot. 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 1 April 2005 and has (as of November 2006) been ratified by 14 member states. Several member states — namely Andorra, Bulgaria, Denmark, France, Lithuania, Malta, Poland, Sweden, Switzerland and the United Kingdom — 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 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".
Prot. 13 - death abolition
Provides for the total abolition of the death penalty.
Protocols on ECHR machinery
Protocols 2, 3, 5, 8, 9 and 10
The convention's machinery has been altered several times by protocols. These amendments have not affected the substantive content of the rights. 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 established a fundamental change in the machinery of the convention. It abolished the Commission, allowing individuals to apply directly to the Court and altered the latter's structure. It 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 amends article 59 of the Convention, allowing for the European Union to accede to it. It is due to join with the ratification of its Treaty of Lisbon, which contains a protocol binding it to accede. It has been expected to join for a number of years and may also join the Council of Europe as a full member in the future.
Protocol 14 has been signed by every Council of Europe member state. Currently only Russia has not yet ratified the protocol. Protocol 14 will only come into force only when it has been ratified by all member states.
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.