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The Most Successful Human Rights

Instrument in the World: The


European Convention on Human
Rights
Dr Elin Weston
9 July 2019
In this session…

• Outline (briefly) the background to the ECHR


• Describe the mechanism for its enforcement
• Introduce the rights protected by the ECHR
THE ECHR: BACKGROUND
Background: the Council of Europe
• Council of Europe = established post-WWII in 1949
• Direct response to the atrocities of WWII
• Based on a belief that governments respecting
human rights are less likely to wage war on their
neighbours
• Part of wider movement to secure peace through
enhancing cooperation across Europe, building
common interests and values
Statute of the Council of Europe,
1949: Preamble
The Governments of the [founding Member States],
Convinced that the pursuit of peace based upon justice and international co-
operation is vital for the preservation of human society and civilisation;
Reaffirming their devotion to the spiritual and moral values which are the
common heritage of their peoples and the true source of individual freedom,
political liberty and the rule of law, principles which form the basis of all
genuine democracy;
Believing that, for the maintenance and further realisation of these ideals and
in the interests of economic and social progress, there is a need of a closer
unity between all like-minded countries of Europe;
Considering that, to respond to this need and to the expressed aspirations of
their peoples in this regard, it is necessary forthwith to create an
organisation which will bring European States into closer association,
Have in consequence decided to set up a Council of Europe [...]
The Convention
• European Convention for the Protection of
Human Rights and Fundamental Freedoms
– Signed: 1950
– Ratified by the UK: 1951
– Entered into force: 1953
• States parties: 1953 = 10; 2018 = 47 (more
info: http://www.coe.int/en/web/about-
us/our-member-states)
THE ECHR: ENFORCEMENT
ECHR: Enforcement
ECHR aim = rights would be enforceable in
international law

European Court of Human Rights (1959)

• Two complaints procedures before ECtHR:


– Inter-state procedure: Art 33
– Individual complaints procedure: Art 34
ECHR: Enforcement
If ECtHR finds a violation, the State must take action
to comply with the judgment:
• Art 46: States ‘undertake to abide by the final
judgment of the Court in any case to which they
are parties.’
• This might take the form of:
– Enactment of new legislation or amending existing
laws
– Changes to administrative practices / guidance
– Payment of damages where this is necessary to afford
‘just satisfaction’ to the applicant
The ECtHR: A few facts…
• Since its first session in 1959, the ECtHR has
handed down over…
• 21,000 judgments!
• In 84% of these, the Court has found at least one
violation by the respondent State
• Over 50,000 new cases are lodged with the Court
every year
• On 31 May 2019: Approximately 58,500
applications were pending before the ECtHR
– Over 60% of those had been lodged against one of:
Ukraine, Turkey, Russia or Romania
ECtHR Judgments in 2018:
• Almost half the judgments concerned 3
member States:
– the Russian Federation (248)
– Turkey (146)
– Ukraine (91)
• Of the total number of judgments delivered in
2018, the Court found at least one violation of
the Convention by the relevant respondent
State in 86% of cases
THE RIGHTS PROTECTED
ECHR: the rights protected
• Art 2 – right to life
• Art 3 – prohibition of torture, inhuman or
degrading treatment or punishment
• Art 4 – prohibition of slavery, servitude, forced or
compulsory labour
• Art 5 – right to liberty and security of the person
• Art 6 – right to a fair trial
• Art 7 – freedom from retrospective criminal laws
ECHR: the rights protected
• Art 8 – respect for private & family life, home
and correspondence
• Art 9 – freedom of thought, conscience and
religion
• Art 10 – freedom of expression
• Art 11 – freedom of assembly and association
• Art 12 – right to marry and found a family
• Art 14 – prohibition of discrimination
ECHR: the rights protected
Protocol 1 to the Convention:

• Art 1 – right to peaceful enjoyment of


possessions (right to property)
• Art 2 – right to education
• Art 3 – right to free elections
‘Absolute’ Rights
Some of the rights in the ECHR are seen as
‘absolute’
à this means there can be no lawful
qualifications or limits to these rights
à so: they cannot be interfered with in ANY
circumstances
‘Absolute’ Rights: an example
ARTICLE 3
Prohibition of torture

“No one shall be subjected to torture or to


inhuman or degrading treatment or
punishment.”
‘Qualified’ Rights
Most of the rights in the ECHR are ‘qualified’
à The rights can be subject to lawful exceptions,
as long as certain conditions are fulfilled

Justifications for this approach:


• Sometimes, the rights of one person may conflict
with the rights of another
• Sometimes, the wider public interest may require
interference with certain rights
• So: need a framework to manage such situations
‘Qualified’ Rights: An example
• Read Article 8 (next slide)
• Work out:
– What are the conditions that must be fulfilled, in
order for an interference with that right to be
considered lawful?
‘Qualified’ Rights: An example
ARTICLE 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family
life, his home and his correspondence.

2. There shall be no interference by a public authority with


the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in
the interests of national security, public safety or the
economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
‘Qualified’ Rights: An example
ARTICLE 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family
life, his home and his correspondence.

2. There shall be no interference by a public authority with


the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in
the interests of national security, public safety or the
economic wellbeing of the country, for the prevention of
disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
Subject-matter of ECtHR violation
judgments in 2018
• Almost a quarter of the violations concerned
Article 6 (right to a fair hearing)
– Either relating to the fairness or the length of the
proceedings
• More than 20% of the violations found
concerned ‘serious breaches of the
Convention’ – i.e. the right to life (Article 2) or
the prohibition of torture and inhuman or
degrading treatment (Article 3)