European Convention on Human Rights

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European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms
Signed
Location 4 November 1950
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 European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,[1] 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.[2]

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 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 Rights 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 executions, 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[3] 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.[4]

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.[5]

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."[6] 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.[7]

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.[8] 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.[9] 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.[10]

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.

• Steel v. United Kingdom (1998) 28 EHRR 603

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 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. 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).