European Convention on Human Rights

I

Introduction

European Convention on Human Rights (ECHR), convention adopted in 1950 and entered into force in 1953 by the Council of Europe. The Council is an intergovernmental organization whose membership has increased from 14 European States in 1953 to 46 in 2005. The majority of Council members are signatories to the Convention: those that have not yet acceded to it are obliged to do so at the earliest opportunity. The ECHR is particularly concerned with the importance of political and civil rights for the contracting states. It protects most of the rights contained in the Universal Declaration of Human Rights, though less extensively. Rights included are the right to life, freedom from slavery, freedom of association, freedom of expression, freedom from torture, protection of privacy and family life, and freedom from discrimination in the application of these rights and freedoms. The ECHR established the European Commission of Human Rights and the European Court of Human Rights, both of which are sited in Strasbourg, to enforce the convention.

II

Articles of the ECHR

Articles 1 to 19 of the Convention set out the human rights. Articles 19 to 51 deal with the establishment of the European Court of Human Rights. Articles 52 to 59 contain miscellaneous provisions. The articles of the ECHR that deal with individual rights provide as follows:

Article 1 obliges the signatories to respect human rights within any territories under their control.

Article 2 protects the right of every person to his or her own life. There are exceptions in the case of lawful executions (though see Protocols 6 and 13, below), and deaths occurring as a result of “the use of force which is no more than absolutely necessary” in defending one’s self or others, carrying out lawful arrests, and suppressing riots.

Article 3 prohibits torture, and “inhuman or degrading treatment or punishment” of any kind. This has been held to prevent the extradition of a person to a foreign state if they are likely to be subjected there to torture or the death penalty.

Article 4 prohibits slavery and forced labour. Conscription, national service, prison labour, emergencies, and “normal civic obligations” (such as jury service) are excluded.

Article 5 provides the right to liberty. Lawful arrest and detention are permitted, though a person has the right to be told why he or she has been arrested in a language that he or she understands.

Article 6 provides the right to a fair and public trial. This includes the presumption of innocence, access to legal representation and an interpreter (where necessary), time to prepare a defence, and the right to cross-examine witnesses.

Article 7 forbids punishment except for behaviour that had been defined as a criminal offence before it was committed. Retrospective criminal legislation is forbidden.

Article 8 provides a right to respect for one’s “private and family life, his home and his correspondence”. (See also Article 12.)

Article 9 provides a right to freedom of thought, conscience, and religion. The only restrictions allowed are those “prescribed by law” and “necessary in a democratic society”.

Article 10 provides the right to freedom of expression. As above, limitations may only be “prescribed by law” and “necessary in a democratic society”.

Article 11 protects the right to freedom of assembly and association. This includes the right to form trade unions.

Article 12 provides a right for men and women of marriageable age to marry and establish a family. To date, the Court has refused to hold that a prohibition on same-sex marriages is in breach of Article 12, though transsexuals are to be allowed to marry people of the sex opposite to their new one.

Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention.

Article 14 prohibits discrimination on such grounds as race, religion, colour, sex, and language.

Article 15 allows contracting states to deviate from the rights guaranteed by the Convention in time of emergency.

Article 16 exempts restrictions on the political activities of aliens from the Convention. Its ambit is wider than that of Article 14.

Article 17 prevents the use of rights guaranteed by the Convention to seek to abolish or limit rights guaranteed in the Convention.

Article 18 says that the rights granted by the Convention may be used only for the purpose for which they are granted.

The key protocols of the ECHR contain the following provisions:

Protocol 1 provides for the protection of private property, the right to an education, and the right for parents to have their children educated in accordance with their religious and other views. It also provides for the right to regular, free, and fair elections.

Protocol 6 limits the death penalty to times of war or national emergency. (But see Protocol 13, below.)

Protocol 12 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”, for any legally prescribed rights or obligations.

Protocol 13 requires parties to abolish the death penalty completely.

Under Article 24 of the ECHR, any contracting party may refer any alleged breach of the Convention by any other party. Further, under Article 25, individuals have the right to lodge claims as victims of alleged violations. Under existing institutions, cases are first referred to the European Commission of Human Rights.

III

The European Commission of Human Rights

The Commission can only deal with a claim if all domestic remedies have been exhausted, unless a state waives the benefit of this rule. Local remedies do not have to be applied, however, if they are not genuine and effective or if they are subject to unreasonable delay.

The Commission must decide whether an application is admissible—that is, the Commission must establish whether there has been a prima facie breach of the Convention. Once a case is found to be admissible the Commission must investigate the accuracy of the facts alleged. Once these are established the Commission acts in the role of conciliator with the aim of securing a friendly settlement of the case. In the absence of a settlement, the Commission must draw up a report and transmit it to the Committee of Ministers.

IV

European Court of Human Rights

The European Court of Human Rights is made up of a number of judges equal to the number of members of the Council of Europe.

The majority of cases referred to the court come from the Commission, usually where there are difficult points of law or sharp differences in opinion between the members of the Commission. In essence, the function of the Court is to be a supranational body that places a primary obligation on states to comply with the Convention. Decisions are therefore not binding on domestic courts. This is examined below with respect to the relevance of the ECHR to domestic authorities in the United Kingdom.