++++++++++++++++++++++

Amended by
protocols
11,14,&15
Supplemented by
1,4,6,7,12,13 & 16

Adoption-- 4 November 1950 ;

came into force --- 3 September 1953.
European Convention on Fundamental Freedoms
and Human Rights, 1950
 Aims – “ at securing the universal and effective
recognition and observance of the Rights ;
the achievement of greater unity between its members
and that one of the methods by which that aim is to be
pursued is the maintenance and further realization of
Human Rights and Fundamental Freedoms;
Back ground
Council of Europe– 5th May, 1949.
Aim – the prevention of authoritarianism in Europe
and counter the ideology of the Soviet States at the
beginning of the Cold War.
It underlines the importance of liberal democracy and
the rule of law and the maintenance and further
realization of human rights and fundamental fredoms.
Structure of Council of Europe
Committee of Ministers;
Parliamentary Assembly;
Secretariat;
European Commission for Human Rights;+
Congress of Local and Regional Authorities
OTHER HUMANRIGHTS INSTRUMENTS
 European Social Charter 1961(Revised in 1996);
 European Convention for the Prevention of Torture,
1961;
 European Charter for Regional or Minority Languages
1992;
 Framework Convention for the Protection of National
Minorities 1995;
 European Convention on the Exercise of Children's
Rights 1996;
 European Convention on Action against Trafficking in
Human Beings 2006;
 European Convention on Prevention and Combating
Violence against Women and Domestic Violence 2011
What rights and Freedoms does the
Convention protection?
Arat.2-Right to Life;
Art.3-Prohibition on torture, inhuman or degrading
treatment;
Art.4-Prohibition of Slavery;
Art.5-Right no to be arbitrarily detained;
Art.6- Right to fair trial;
Art.7-Retroactivity of Criminal Law;
Art.8-Family, Private Life, home and correspondence
Art.9-Freedom of thought, conscience and religion;
Art.10-Freedom of Expression;
Art.11-Freedom Assembly and Association;
Art.12-Right to marry and have a family;
Art.13-Access to domestic remedies;
Art.14-Non-discrimination;
Article 15
– Derogation in time of emergency
Article 16
– Restrictions on political activity of aliens
Article 17
– Prohibition of abuse of rights
Article 18
– Limitation on use of restrictions on rights
 Protocol—1—to the convention for the protection of human rights and
fundamental freedoms
 Art.1-Right to Property;
 At.2—not be denied education;
 Art.3-right to free elections;

 Protocol-4---securing certain rights and freedoms other than those

already included in the Convention and in the First Protocol thereto

 Art.1—no imprisonment for debt;

 Art.2—Freedom of movement and choice of residence;
 Art.3– Freedom from exile and to enter country of which national;
 Art.4—Prohibition of collective expulsion of aliens
Protocol—6
 Prohibition of the death penalty
Protocol—7- to the Convention for the Protection of Human
Rights and Fundamental Freedoms
 Art.1—Right of non-expulsion of alien without due process;
 Art.2—Right of appeal in criminal cases;
 Art.3-compensation for miscarriage of justice;
 Art.4-immunity from being prosecuted twice for same offence;
 Art.5-Equality of spouses – Equality of rights and
responsibilities of private law between them and children
Protocol-12 to the Convention for the Protection of
Human Rights and Fundamental Freedoms
 Non-discrimination as a free-standing right
Protocol-13
 Abolition of the death penalty in all circumstances
Protocol-14, 2010
 Reform of the complaints system
Protocol No. 15,2013 –the Convention on the
Protection of Human Rights and Fundamental
Freedoms

Protocol No.16 -2013 - the Convention on the
Protection of Human Rights and Fundamental
Freedoms
Structure of the complaint system before
Protocol 11, 1998

Applicant

European Commission of Human

Rights(Admissibility)

Committee of
ministers(merits/Enforce ECHR(Merits)
ment)
Protocol -15
 Adding a reference to the principle of subsidiarity and the doctrine of the
margin of appreciation to the Preamble of the Convention;
 Shortening from six to four months the time limit within which an
application must be made to the Court;
 Amending the ‘significant disadvantage’ admissibility criterion to remove
the second safeguard preventing rejection of an application that has not
been duly considered by a domestic tribunal;
 Removing the right of the parties to a case to object to relinquishment of
jurisdiction over it by a Chamber in favour of the Grand Chamber;
 Replacing the upper age limit for judges by a requirement that
candidates for the post of judge be less than 65 years of age at the date by
which the list of candidates has been requested by the Parliamentary
Assembly.
European Court of Human Rights
Why?
When?.. 21st Jan, 1959;
Doctrine Living Instrument
The Court is not bound by precedent and is open to a
dynamic interpretation which allow it to develop
human rights protection against the background of
changes in society and social attitudes.

The ECHR has been described by the Court as a

'Living Instrument 'which must be interpreted in the
light of present day conditions. The Court has been
prepared to change its findings on many issues,
including sexuality, prisoners’ rights and the death
penalty.
The Living Instrument Principle --- Transgender Cases

Rees v.UK, , (1981)(Application No.9532/81):

Cossey v. UK. (1991)(Application No.10843/84
Goodwin v. UK(2002)35EHRR 447
Nature of ECHR Rights
Absolute Rights ( related to the right to life, torture,
inhuman and degrading treatment, slavery,
retrospectively--Art.2,3,4&7);
Limited Rights (Detention and fair trial - Art.5&6);
and
Qualified Rights( Family and Private life - Art.8,9,
10&11)
Derogation (Art.15)
States are not permitted to derogate from Art.3,4(1) and 7.
Under Art.2, derogation is not permitted except in respects of
death resulting from the lawful acts of war.
Under Art.15 State can only derogate if:
 There is a war or other public emergency threatening the life of
the nation; and
 The derogation is no more than strictly required by the
exigencies of the situation, and
 It must not be inconsistent with its other obligations under
international law; and
 The State must communicate the derogation to the Council of
Europe
Doctrine of Proportionality
Proportionality is a tool used by the ECHR to find the
balance between the rights of the individual and the
community when deciding upon qualified rights.
What is the criteria?
Is it effective?
Is there a link between the measure and what the State
argues it is meant to be achieving?
Is it the least intrusive possible?
Does it deprive the very essence of the right?
Is it balanced?
Doctrine of Margin of Appreciation
It considers the amount of discretion given to the State by the
ECHR when adjudicating on alleged violations of qualified
rights.
What is the premise to this doctrine?
What factors will influence whether the margin of appreciation is
wide or narrow?
 Nature/importance of the right/ issue in question;
 Nature/importance of general interest/aim;
 Lack of European consensus or standard
(Goodwin v. UK, [1996] ECHR 16,this case narrowed over time);
 Areas where judges give wider margin because difficult to
judge/ to identify resources
Goodwin v. UK, [1996] ECHR 16,
Findings
The publication of the confidential information was
already prohibited by injunction, and the order for
disclosure of the source was not “necessary in a
democratic society” as required by Article 10 European
Convention on Human Rights .
A request for disclosure of a confidential source in a
journalistic context was an impermissible violation of
Article 10 of the European Convention on Human
Rights.
Handyside v. UK (1976) 1 EHRR
Facts:
 Richard Handyside, proprietor of "Stage 1" publishers, purchased British rights of The Little Red
Schoolbook, written by Søren Hansen and Jesper Jensen .
 One of the chapter on pupils contained a 26-page section concerning "Sex".
 The book was initially published in 1969;
 Handyside sent out several hundred review copies of the book, together with a press release, to a
selection of publications from national and local newspapers to educational and medical
journals. Advertisements were also placed for the book.
 The book became subject of extensive press comment, both favorable and not.
 On 31 March 1971, 1,069 copies of the book were provisionally seized together with leaflets,
posters, show cards, and correspondence relating to its publication and sale. On 1 April 1971, 139
more copies were seized. About 18,800 copies of a total print of 20,000 copies were missed and
subsequently sold.
 On 8 April, a magistrates' court issued two summonses against Handyside for having in his
possession obscene books for publication for gain. Handyside ceased distribution of the book and
advised bookshops accordingly but, by that time, some 17,000 copies were already in circulation.
 On 1 July 1971, Handyside was found guilty of both offenses and fined £25 on each summons and
ordered to pay £110 costs. His appeal was rejected
Findings:
There was no European consensus on the protection
of public morals, particularly as regards children.
Therefore, States should be left a margin of appreciation
in interpreting whether a particular measure is
‘necessary’. At the same time, the Court stressed that the
test of ‘necessity’ was a strict one: “Whilst the adjective
‘necessary’ … is not synonymous with ‘indispensable’ …
the words ‘absolutely necessary’ and ‘strictly necessary’
…, neither has it the flexibility of such expressions as
‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable
 Findings:
 it was necessary to pay the utmost attention to the principles that characterize
a ‘democratic society’. In particular, it held that “freedom of expression
constitutes one of the essential foundations of such a society, one of the basic
conditions for its progress and for the development of every man. Subject to
[legitimate restrictions] it is applicable not only to “information” or “ideas” that
are favorably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock, or disturb the State or any sector of the
population. Such are the demands of that pluralism, tolerance, and
broadmindedness without which there is no “democratic society”. This means,
amongst other things, that every “formality”, “condition”, “restriction” or
“penalty” imposed in this sphere must be proportionate to the legitimate aim
pursued.
 Passages that young people are at a critical stage of their development could
have been interpreted as an encouragement to indulge in precocious activities
harmful for them or even to commit certain criminal offenses.
UGULAVA v. GEORGIA, N3/2/646
Arbitrary arrest and detention Art.5 and Art.8 of the
ECHR