THE EUROPEAN CONVENTION ON HUMAN RIGHTS

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Human Rights and the adoption of the European Convention

The concept of human rights relies on the postulate that individuals have rights simply because they are human beings. One of the fundamental principles of human rights is equality; human rights are vested in all individuals regardless of their race, ethnicity, religion, gender, sexual orientation or nor matter whether they are disabled or abled.

Human rights have developed through history along the principles of natural law, which comes from the period of Enlightenment. Authors like John Locke, Thomas Paine, Jean-Jacques Rousseau argued at the time that a body of superior principles and values should be complied with by any other laws. The American Constitution and its Bill of rights (1787) and the French Declaration of the Rights of Man and the Citizen (1789) had major influences in the legal codification of human rights theories.

Later on, in 1945, the United Nations were created by the international community in order to ensure peaceful settlement of conflicts. In 1948, the Universal Declaration of Human Rights was adopted by the UN General Assembly. Although originally considered in international law as a soft law, it is nowadays undisputed that it has the effect of customary international law.

At the European level, the Council of Europe was created in 1949 with three main objectives: the protection of Human Rights, Democracy and the Rule of Law. The Council of Europe has to be distinguished from the European Union. It is an inter-governmental organization composed of 47 Member States, often referred to as the “broad Europe”. For instance, Turkey and Russia are also members of the Council of Europe.

In 1950, the Member States of the Council of Europe adopted, according to the Council of Europe’s mandate given that one of its main objective is the protection of human rights, the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”). The Convention is an international treaty which protects, inter alia, the right to life (Article 2), the prohibition of torture (Article 3), the prohibition of slavery (article 4), liberty and security of the person (Article 5), the right to a fair trial (Article 6), the right to private life (Article 8), freedom of thought, conscience and religion (Article 9) and freedom of expression (Article 10).

As of today, the Convention has 16 protocols. The latest entered into force in August 2018. In this regards, Protocol No. 16 to the Convention allows the highest courts and tribunals of a State Party to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The status of the European Convention and its legal force

The Convention, for the purposes of public international law, is a bilateral Treaty. Article 46 of the Convention and subsequent practice: all final judgments (Chamber and Grand Chamber) are binding on the respondent States. After a judgement is issued, the concerned contracting State has to comply with it by paying any just satisfaction ordered by the Court or/and by taking the necessary steps to amend the impugned domestic law which is not compatible with the Convention. For instance, following the European Court’s judgement in the case Malone v. UK, no 8691/79, 02/08/1984, ECHR which found a violation of Article 8 (right to private life) concerning telephone tapping, the British Parliament adopted the Interception of Communication Acts 1985, in order to comply with the Court’s judgement.

The Committee of Ministers supervises the enforcement of judgments.It not only ensures that damages awarded by the Court are paid, but it also assists the State in question in trying to find suitable measures in order to comply with all other demands made by the Court. Should a Member State refuse to implement a judgment, the Committee of Ministers can apply multilateral peer-pressure or bilateral pressure from neighbouring States. It can also threaten the Member State in question with the publication of a list, containing all its pending cases before the Court, or – as a last resort – with the exclusion from the Council of Europe.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Derogations, reservations and denunciations

According to Article 15 of the Convention, temporary derogations are allowed in times of public emergency, under the following conditions: “1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”.

However, the second paragraph of Article 15 prohibits derogations to rights as protected by Article 2 (except regarding deaths resulting from lawful acts of war), 3, 4(1) and 7. These rights are often referred to as “absolute rights” as opposed to “conditional rights” that can be derogated from. This concept of absolute rights is also applicable to the rights that do not allow for interferences. Conversely, conditional rights, such as Article 8,9,10 and 11 allow interferences if they can be justified (prescribed by law, protecting a legitimate aim and necessary in a democratic society).

Summary

• The concept of human rights relies on the postulate that individuals have rights simply because they are human beings.

• Human rights have developed through history along the principles of natural law, which comes from the period of Enlightenment.

• The Council of Europe was created in 1949 with three main objectives: the protection of Human Rights, Democracy and the Rule of Law. It is an inter-governmental organization composed of 47 Member States.

• In 1950, the Member States of the Council of Europe adopted the Convention for the Protection of Human Rights and Fundamental Freedoms. As of today, the Convention has 16 protocols. The latest entered into force in August 2018.

• According to Article 46 of the Convention and subsequent practice: all final judgments (Chamber and Grand Chamber) are binding on the respondent states. The Committee of Ministers supervises the enforcement of judgments.

• According to Article 15 of the Convention, temporary derogations are allowed in times of public emergency. However, the second paragraph of Article 15 prohibits derogations to rights as protected by Article 2 (except regarding deaths resulting from lawful acts of war), 3, 4(1) and 7.

• The European Court of Human Rights (hereinafter “the Court”) is located in Strasbourg, France. It is composed of 47 judges, each one of them representing one of the Member States.

• The term “jurisdiction” in Article 1 of the Convention refers to the traditional concept of territorial jurisdiction. However, in specific circumstances, the Court also has extra-territorial jurisdiction.

• The Convention allows individual complaints (under Article 34 of the Convention) but also inter-States complaints (Article 33 of the Convention) to be lodged to the European Court of Human Rights for a review of potential violation of human rights as provided for by the Convention.

• The Court, before examining the merits of a case, will first look at its admissibility. Admissibility criteria are listed in Article 34 and 35 of the Convention. The term “person”, in line with its traditional legal signification, covers both individuals and legal persons such as companies, trade unions or political parties.

• The idea of traditional negative obligations under the Convention is that a State should refrain from actively interfering with an individual’s rights. However according to the theory of positive obligations: Member States are held responsible for their inactivity in protecting from or investigating into human rights violations committed by private actors.

• The Strasbourg Court appreciates the justification of an interference to a conditional right using its traditional test (prescribed by law, pursuing a legitimate aim and necessary in a democratic society).

• The principle of subsidiarity in the Convention system means that human rights violations should be reviewed by judges at the most immediate (or local) level

• The doctrine of proportionality ensures that domestic courts have conducted a fair balance between pursuing a legitimate aim and protecting Convention rights.