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 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.


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).


General principle: The natural and customary meaning of “public emergency threatening the life of the nation” is clear and refers to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.


Lawless v. Ireland (No. 3), no 332/57, 01/07/1961, ECHR

Facts: In this case, the applicant, a member of the organization IRA, had been detained for a period of five months without trial under the Offences against the State (Amendment) Act 1940. He claimed that his detention constituted a violation of Article 5. Ireland however previously informed the Council of Europe, under Article 15 of the Convention, that it might take measures interfering with some of the rights protected by the Convention.

Ratio: The Court acknowledged the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights. Accordingly, it concluded that the measures taken in derogation from obligations under the Convention were "strictly required by the exigencies of the situation".

Application: The Court interpreted the notion of public emergency quite flexibly in order to enable State to protect citizens from terrorism.


In addition to this, under Article 15 § 3, any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed. The primary purpose of informing the Secretary General is that the derogation becomes public and the measures taken by the State are covered by public scrutiny. Reservations to the Convention are also possible under Article 57. In other words, any State, when signing or ratifying the Convention can subject its accession to a condition or limit the scope of one of the provisions of the Convention. However, Article 57 prohibits general reservations which would defeat the object and purpose of the Convention (Loizidou v Turkey, no 15318/89, 23/03/1995, ECHR).


As regards withdrawal, according to Article 58(1) of the Convention: “A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties”. In other words, the Court has still jurisdiction to review pending cases against a State that denounces the Convention but also on cases lodged up to 6 months after the denunciation. In practice, only Greece denounced the Convention in 1970 after a military coup but ratified the Convention once again in 1974. In a Brexit context, the same question was debated for the UK. However, although withdrawing from the European Convention is legally possible for the UK, and even easier in practice than exiting the EU, it seems that it is not yet on the political agenda.


Proceedings before the European Court of Human Rights


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 Judges are appointed by the Parliamentary Assembly of the Council of Europe (PACE), which selects one judge out of a list of three proposed by the concerned Member State. If the PACE does not find any suitable candidate in the list, it can refuse the list and ask the Member State to present a new one. The Court is composed of a Chamber who takes judgements that can be referred to the Grand Chamber by a panel of judges upon the request of one of the parties. This is a sort of appeal given that the Grand Chamber’s judgement prevails over the Chamber’s judgement. Since the entry into force of Protocol 14 in 2010, the Court can issue single-judge decisions to declare applications inadmissible. The Court initiated new working methods to tackle the massive backlog of clearly inadmissible cases. In 2011 over 100,000 of such applications were pending. As of today, the total of pending applications is approximately 60 000.


Jurisdiction


Under Article 1 of the Convention: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. Here the term “everyone” should be emphasised. It means that there is no requirement regarding citizenship to claim that applicants have been victims of human rights violations by the any responding State. In addition to this, the contracting parties’ obligation to secure the Convention’s rights applies to every human being, regardless their residence status in the concerned Member States. Therefore, a State cannot pretend that the Court does not have jurisdiction over alleged violations of the rights of undocumented migrants, for example.


The term “jurisdiction” in Article 1 of the Convention refers to the traditional concept of territorial jurisdiction, which encompasses the combination of the European territories of the contracting parties but also the overseas’ territories. For instance, the Court has jurisdiction for alleged violations committed in Martinique (French overseas region). In addition to the traditional concept of territorial jurisdiction, the Court, in specific circumstances, also has extra-territorial jurisdiction. In those cases, the Member States will be held responsible for acts that have occurred outside the geographical jurisdiction of a contracting State. These could include matters arising from the activities of State agents abroad, for instance, or when a Member State has effective control of the relevant territory abroad as a consequence of military occupation, or because the government of that territory had consented or acquiesced to the exercise of its powers. 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.


General principle: The European Court of Human Rights can review both individual and inter-States complaints.


Ireland v. The United Kingdom, no 5310/71, 18/01/1978, ECHR

Facts: The Irish government brought an inter-State complaint against the United Kingdom for alleged violations of Article 3 of the Convention (prohibition of torture, inhuman and degrading treatment) of the rights of suspected terrorists by British soldiers in Northern Ireland.

Ratio: The Court held that the authorities’ use of the five techniques of interrogation in 1971 constituted a practice of inhuman and degrading treatment, in breach of Article 3, and that the said use of the five techniques did not constitute a practice of torture within the meaning of this Article.

Application: Although a vast majority of the applications to the Court are lodged by individuals, inter-States complaints can also be reviewed by the Strasbourg Court under Article 33 of the Convention. It should be noted that the Court recently received a request for revision of this judgement for new facts, which was dismissed on 20/03/2018.


Admissibility


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. These rules are aimed at filtering out helpless claims or claims presented in bad faith and helps reducing the backlog of applications by processing cases more rapidly. Most of the criteria are formal or procedural. Accordingly, we will only discuss those of greater significance.


First of all, the Court will only review applications lodged by applicants who claim to be “victims” of a breach of the Convention. According to Article 34 of the Convention, individual applications can be lodged by “any person, non-governmental organisation or group of individuals claiming to be a victim of a violation” of their rights by one or several Member States. The term “person”, in line with its traditional legal signification, covers both individuals and legal persons such as companies, trade unions or political parties.


Applicants must demonstrate that they have been directly affected by State action or inaction in order to be a “victim” for the purposes of admissibility of their applications. However, the Court may accept indirect victims such as relatives of a deceased person with claims related to Article 2, for example.


General principle: In very exceptional circumstances, a non-governmental organisation that was in contact with the direct victim might have standing to lodge an application on behalf of a deceased mental patient without relatives.

Centre for Legal Resources on behalf of Valentin Campeanu v. Romania [GC], no 47848/08, 17/07/2014, ECHR

Facts: The application was lodged by a non-governmental organisation, the Centre for Legal Resources (CLR), on behalf of a young Roma man, Mr Câmpeanu, who died in 2004 at the age of 18 because of the alleged medical negligence of a hospital.

Ratio: The Court dismissed the Government’s preliminary objection that the CLR had no standing to lodge the application. It accepted that the CLR could not be regarded as a victim of the alleged Convention violations as Mr Câmpeanu was indisputably the direct victim while the CLR had not demonstrated a sufficiently “close link” with him or established a “personal interest” in pursuing the complaints before the Court to be considered an indirect victim. However, in the exceptional circumstances of the case and bearing in mind the serious nature of the allegations, it had to have been open to the CLR to act as Mr Câmpeanu’s representative.

Application: In this case the Court conceded that in exceptional circumstances resulting on the death of a direct victim of a breach of the Convention, persons related to the deceased could have standing to lodge an application on his/her behalf where declaring such application inadmissible would result on a flagrant injustice.


Another admissibility criterion is that applications have to be lodged within six months after the final domestic decision. The 6-month-rule is closely related to the main admissibility criterion that requires applicants to exhaust all domestic remedies before lodging an application to the Court. One of the main exceptions to this rule requires the applicant to demonstrate that the said remedy was not effective in the sense that it did not present reasonable prospects of success in order to redress the breach of the Convention.


In addition to this, since 2010 and the entry into force of Protocol 14, the Court can declare applications inadmissible if the applicant has not demonstrated that he or she suffered a significant disadvantage. This rule will be applied, for example, if the financial loss suffered by the applicant is modest.


It should be noted that the Court increasingly made use of the manifestly ill-founded ground to reject cases that did not disclose prima facie violations. Mainly invoked in single-judge decisions, this ground of inadmissibility is located between admissibility and the review of the merits of a case. The doctrine qualifies this use as abusive and dangerous for the administration of justice. In this regard, it should be noted that more than 90% of the applications are declared inadmissible by the Court.


Key jurisprudential principles developed by the European Court to examine the merits of applications


The notion of positive obligations


The idea of traditional negative obligations under the Convention is that a State should refrain from actively interfering with an individual’s rights. In a concrete example, the negative obligations of contracting States under Article 3 means that they should refrain from torturing or subjecting individuals to ill treatments.


It should be noted that the defendant, before the Strasbourg Court will always be a Member State. However, the State can still be condemned by the Court for failure to act, for example, in a case implying infringements of individual’s rights by private actors. This is 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. In Article 3 example, a Member State would be in breach of its positive obligations if it is demonstrated that it failed to protect the individual’s right to not be subjected to torture or ill-treatments.


Historically, positive obligations have been developed by the Strasbourg Court as regards the violations often referred to as the “most serious”, namely violations of rights under Articles 2 and 3. On the one hand, “positive obligations to protect” require Member State to protect individuals from interferences with their rights under Article 2 and 3. This include that Member States are required to enact laws in their domestic legal systems that prohibit, deter, and punish individuals who commit such violations.


General principle: Positive obligations regarding Article 2 may require Member States to take preventative measures to protect an individual whose life is at risk from the criminal acts of another private individual.


Osman v United Kingdom, no 23452/94, 28/10/1998, ECHR

Facts: This case concerned the obsession of a teacher for one of his students. After having moved to another school, the family of the kid reported vandalism at their home and declared having seen the teacher walking around the house. Several signs of possible implication of the teacher in such acts were communicated to the police. The kid was later killed by the teacher. The family of the kid argued that the UK failed to take preventative measures to protect the kid and therefore breached its obligation under Article 2 of the Convention.

Ratio: The Court Stated that a contracting State is under positive obligation to take preventative measures to protect life if it is: “established (…) that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”. However, the Court clearly restricted this obligation to what could reasonably be expected from Member States: “For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising”.

Application: The positive obligation to take preventative measures to protect life is part of the substantial obligations of States to protect the lives of individuals.


On the other hand, positive obligations of a procedural nature include, inter alia, the duty for States to investigate deaths that may have occurred in breach of the Convention (Mccann and Others v. The United Kingdom, no 18984/91, 27/09/1995, ECHR).


Prescribed by law


The Strasbourg Court appreciates the justification of interference to a conditional right using its traditional test (prescribed by law, pursuing a legitimate aim and necessary in a democratic society). In accordance with key principles of the Rule of law, the prescription by law should present a minimum standard of certainty and clarity. The clarity of laws guarantees that individuals are able to regulate their conduct in accordance with the law. In the context of the European Convention for Human Rights, this notion is referred to as “prescribed by law” which is a requirement for the justification of interferences in individuals’ rights.


General principle: The expression "prescribed by law", covering both statutes and unwritten provisions, ensures that a legal provision allowing for an interference on individuals’ rights must be adequately accessible to citizens and formulated with sufficient precision to enable the citizen to regulate his conduct.


The Sunday Times v. The United Kingdom n°6538/74, 26/04/1979, ECHR

Facts: The applicant, a British newspaper, published an article on titled the Thalidomide, a drug taken by pregnant women allegedly causing birth defects to new-borns, and criticizing English law for failing to tackle this issue. In this article, a footnote announced another article to be published later on the same topic. In November 17, 1972, the Divisional Court of the Queen’s Bench granted an injunction in order to restrain the publication of the future article stating that its publication would constitute contempt of court. The applicant argued that the law of contempt of court was so vague and uncertain that the restrain imposed on their freedom of expression (Article 10 of the Convention), could not be regarded as “prescribed by law”.

Ratio: The Court developed its jurisprudence on the notion of prescribed by law, stating that: “In the Court’s opinion, the following are two of the requirements that flow from the expression "prescribed by law". Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail” (§49). Applying this test to the present case, it found that the applicants “were able to foresee, to a degree that was reasonable in the circumstances, the consequences of publication of the draft article”. Accordingly, the interference on the applicant’s freedom of expression was prescribed by law as for the purposes of paragraph 2 of Article 10 of the Convention.

Application: Interestingly, in this case, the Court made it clear that the term “law” referred to both written and unwritten legal provisions: “The Court observes that the word "law" in the expression "prescribed by law" covers not only statute but also unwritten law. Accordingly, the Court does not attach importance here to the fact that contempt of court is a creature of the common law and not of legislation. It would clearly be contrary to the intention of the drafters of the Convention to hold that a restriction imposed by virtue of the common law is not "prescribed by law" on the sole ground that it is not enunciated in legislation: this would deprive a common-law State which is Party to the Convention of the protection of Article 10 (2) (art. 10-2) and strike at the very roots of that State’s legal system” (§47).

However, this does not mean that a legal basis has to be absolutely clear. However, what matters is the possibility for an individual to foresee the legal consequences of an act which is regulated by law (see Hashman and Harrup v. UK, no 25594/94, 25/11/1999, ECHR).



General principle: When discretion is conferred on public authorities regarding interferences of Convention rights, the law should indicate with reasonable clarity the scope and manner of exercise of the relevant discretion.


Malone v. United Kingdom, no 8691/79, 02/08/1984, ECHR

Facts: The plaintiff claimed that intercepting his telephone conversations, on authority of a warrant by the Secretary of State for Home Affairs, was unlawful, and asked for an injunction against the Metropolitan Police Commissioner for monitoring his telephone. He argued that he had a right of privacy.

Ratio: The court found a violation of Article 8 of the Convention because the interference was not prescribed by law. It considered that: “In the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking”.

Application: The rationale behind this rule of necessary limitations to discretionary powers of the executive regarding interferences with convention rights is to protect the key principles of the Rule of law.


General principle: The European Court will be reluctant to declare an interference prescribed by law where the legal provision contains vague terms enabling for clear risks of arbitrariness in the grant of broad discretionary powers.


Gillan and Quinton v. UK, no 4158/05, 12/01/2010, ECHR

Facts: This case concerned Section 44 of the Terrorism Act 2000, which allowed a senior police officer to grant a stop and search authorisation for a designated area where he considered it “expedient” to do so for the prevention of acts of terrorism. One safeguard provided that this grant had to be authorized by the Secretary of State.

Ratio: The Court held that the interference was not prescribed by law and found a violation of Article 8 of the Convention (respect for private life). “The Court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he “considers it expedient for the prevention of acts of terrorism”. However, “expedient” means no more than “advantageous” or “helpful”. There is no requirement at the authorisation stage that the stop and search power be considered “necessary” and therefore no requirement of any assessment of the proportionality of the measure. (…) In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer”.

Application: Once again, in this case, the reasoning of the Court is relying on the fundamental protection of the rule of law. As the Court stated, in its judgement: “In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise”.


General principle: The Strasbourg Court applies flexibility to certain types of laws that, by their very definition, do not lend themselves to precise legal definitions.


Wingrove v. United Kingdom, no 17419/90, 25/11/1996, ECHR

Facts: In this case, the British Board of Film Classification refused to grant distribution certificate for the applicant's video in order to be published. The latter claimed that the criminal offence of blasphemy, in UK law, was so vague, that it was inordinately difficult to foresee whether a particular publication would constitute an offence.

Ratio: The Court was satisfied that applicant with legal advice could reasonably foresee that scenes in film could fall within the scope of blasphemy, it could not be said that blasphemy law did not afford adequate protection against arbitrary interference. Therefore, the Court held that the impugned restriction was prescribed by law. Interestingly, the Court noted that blasphemy, by very nature, has no precise legal definition - national authorities must be afforded degree of flexibility in assessing whether particular facts fall within definition.

Application: It should be noted that the same solution was adopted by the Court, few years earlier, in the context of obscenity laws (see Müller v. Switzerland, no 10737/84, 24/05/1988, ECHR).


Subsidiarity


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 that is consistent with their resolution. As Stated by the Court in Cocchiarella v. Italy, no 64886/01, 29/03/2006, ECHR : “The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Articles 13 and 35 § 1 of the Convention”.


Accordingly, the Strasbourg Court will refrain from imposing its view if, during national proceedings, domestic judges have fairly reviewed the applicant’s case in accordance with the main safeguards enshrined by the European court’s case law. One of the main illustrations of this principle which underlines the entire Convention is the admissibility criterion that requires applicants to have exhausted domestic remedies.


The principle of subsidiarity has been recently reinforced by the Member States during the Brighton conference which resulted in the entry into force of Protocol no. 15. Protocol no. 15 amended the preamble of the Convention by adding the following sentence: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.


Margin of appreciation


The margin of appreciation is a jurisprudential concept developed by the Strasbourg Court to improve the flexibility of its review over domestic proceedings. It provides contracting States with a kind of discretion when balancing multiple interests in a specific case. The traditional argument in favour of the recognition of a national margin of appreciation is that local authorities are better placed to assess and balance the interests at stake. Therefore, on this aspect, the margin of appreciation is based on the principle of subsidiarity which requires decisions to be taken at the most immediate level.


General principle: When restricting individuals’ rights in order to protect public morals, the Convention leaves to the Contracting States a wide margin of appreciation.


Handyside v. UK, no 5493/72, 07/12/1976, ECHR

Facts: The Little Red Schoolbook is a book for children which had been published in several European and non-European countries. The book urged young people at whom it was directed to take a liberal attitude in sexual matters. Prosecutions were brought against the applicant for possessing obscene publications, under Obscene Publications Act 1959, as amended by the Obscene Publications Act 1964. He claimed that his prosecution breached his freedom of expression under Article 10 pf the Convention.

Ratio: The Court found that there has been no violation of Article 10 of the Convention. It noted that “it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them”. On the specific question of obscenity laws, it stated that: “The Contracting States have each fashioned their approach in the light of the situation obtaining in their respective territories; they have had regard, inter alia, to the different views prevailing there about the demands of the protection of morals in a democratic society”.

Application: In this case, the Strasbourg Court that local authorities are better placed to define public morals, a concept that is country-specific depending on the traditions and culture of each contracting state.


General principle: Not only the nature of the legitimate aim invoked to justify the restriction but also the nature of the activities involved will affect the scope of the margin of appreciation. When a restriction impinges on the enjoyment of the individual’s right to private life, the margin of appreciation afforded to the Contracting States is generally narrow.


Dudgeon v. The United Kingdom, no 7525/76, 22/10/1981, ECHR

Facts: This case concerned the criminalisation of homosexual activity. The applicant was a gay activist in Northern Ireland. He was subsequently arrested an interrogated. He claimed that his right to private life under Article 8 of the Convention has been violated.

Ratio: The Court held that the applicant suffered an unjustified interference with his right to private life. Accordingly, it found that there has been a violation of Article 8 of the Convention. The Strasbourg Court considered that “not only the nature of the aim of the restriction but also the nature of the activities involved will affect the scope of the margin of appreciation. The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of paragraph 2 of Article 8 (art. 8-2)”.

Application: It should be noted that the notion of margin of appreciation is flexible, and the Court will broaden its scope depending on the circumstances of each case.To some extent, the breadth of the margin of appreciation is assessed by the Court, on case by case basis, taking into account the context, the national specificities (such as, for example, the political structure of a contracting State, seeDemuth v. Switzerland, no 38743/97, 2002, ECHR) and the interests at stake. The Court considered that different historical development of countries and their cultural diversities can explain that domestic authorities should apply the Convention with a certain margin of appreciation. This case by case assessment has been heavily criticized by academics who pointed out a tool used by the Court to discretionarily justify or reject its intervention in State affairs.


However, the Court has developed some jurisprudential criteria to determine the breadth of the margin of appreciation in specific areas, such as freedom of expression, where it had constantly reiterated that margin of appreciation should be particularly narrow when the applicant intended to debate a question of general interest (Morice v. France [GC], n 29369/10, 23 /04/2015, ECHR).


General principle: The absence of European consensus speaks in favour of allowing a wider margin of appreciation.


Animal Defenders International v. The United Kingdom, no 48876/08, 22/04/2013, ECHR

Facts: In this case, it should be noted that the Communications Act 2003 prohibited political advertising in television or radio services. The applicant, a non-governmental organisation, was campaigning against the use of animals in commerce, science and leisure and sought to achieve changes in the law. In 2005 it sought to screen a television advertisement as part of a campaign concerning the treatment of primates. However, the Broadcast Advertising Clearance Centre (“the BACC”) refused to clear the advert. The applicant claimed that this had violated its rights under Article 10 of the Convention.

Ratio: The Court held that there has been no violation of Article 10 given that domestic authorities enjoyed a wide margin of appreciation in balancing the interest at stake. It stated that: “The Court would underline that there is no European consensus between Contracting States on how to regulate paid political advertising in broadcasting. It is recalled that a lack of a relevant consensus amongst Contracting States could speak in favour of allowing a somewhat wider margin of appreciation than that normally afforded to restrictions on expression on matters of public interest”.

Application: The Court, when examining the existence of European consensus, looks at state practice on a given topic by engaging in comparative law analyses.


Proportionality


As for the criterion of prescription by law, the notion of proportionality only applies to conditional rights, in other words, Articles 8 to 11: the right to respect for private and family life, Freedom of thought, conscience and religion, Freedom of expression, Freedom of assembly and association. The Court’s assessment of proportionality intervenes at the end of the review of the justification of interference to conditional rights, when the Court determines whether the interference was necessary in a democratic society. The doctrine of proportionality ensures that domestic courts have conducted a fair balance between pursuing a legitimate aim and protecting Convention rights.


General principle: The principle of proportionality imposes on contracting States, when pursuing a legitimate aim, to consider using the less restrictive measures in order to justify interferences to a conditional right.


Goodwin v. The United Kingdom, no 17488/90, 27/03/1996, ECHR

Facts: This case concerned a disclosure order granted to private company requiring a journalist to disclose the identity of his source. A fine was subsequently imposed on the journalist for having refused to disclose the identity of his source.

Ratio: The Court concluded that there was not, in sum, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. The restriction which the disclosure order entailed on the applicant journalist’s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 (art. 10-2), for the protection of Tetra’s rights under English law, notwithstanding the margin of appreciation available to the national authorities.

Application: In this case, the Court developed the idea of proportionality as a concept imposing on contracting States to refrain from taking measure that are not strictly necessary to achieve the legitimate aim invoked. If there was a suitable alternative less restrictive to the applicant’s rights and the responding State did not make a reasonable use of it, the Court will certainly declare the interference disproportionate.


In addition to this, the Court observes that the nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (Sürek V. Turkey (No. 1), no 26682/95, 08/07/1999, ECHR). Accordingly, a fine of a significant amount of money or a very restrictive measure in terms of its impact on the applicant’s rights, will generally speak in favour of the disproportionate nature of the interference to the legitimate aim.


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.

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