Law
European Convention on Human Rights
The European Convention on Human Rights is an international treaty that protects fundamental rights and freedoms in Europe. It was established by the Council of Europe in 1950 and is enforced by the European Court of Human Rights. The convention sets out a range of civil and political rights, including the right to life, freedom of expression, and the prohibition of torture.
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10 Key excerpts on "European Convention on Human Rights"
- Pekka Hallberg, Janne Virkkunen(Authors)
- 2017(Publication Date)
- Palgrave Macmillan(Publisher)
The ECHR entered into force in 1953 after it had been ratified by a sufficient number of states. At the beginning of 2010 10 new states ratified the Convention, including Russia, so Europe is not the only area of application (see background: Tuomas Ojanen and Martin Scheinin, Perusoikeudet, 2011s. 875 ss.). The Convention established the European Court of Human Rights (ECtHR). Any person who feels their rights have been violated under the Convention by a state party can take a case to the Court. Judgements find- ing violations are binding on the states concerned, and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of damages awarded by the Court to applicants. Content of the ECHR Signed on 4 November 1950, the Convention guarantees a broad range of human rights to inhabitants of member coun- tries of the Council of Europe, which includes almost all European nations. These rights include Article 10, which entitles all citizens to free expres- sion. This right includes the freedom to hold opinions, and to receive and impart information and ideas. Here we once again arrive at the question of how to search for the balance between freedom and responsibility on an international level. The starting point is the ideology of free speech and its restrictions must always be based on careful consideration, the principles of rule of law and a democratic society. This is why this book emphasises the significance of also monitoring rule-of-law development when evaluating the fulfilment of international human rights principles. The Convention guarantees the right to freedom of expression, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. ECHR Article 10 Freedom of expression reads: 1. Everyone has the right to freedom of expression.
eBook - PDFBalancing Liberty and Security
Human Rights, Human Wrongs
- Kate Moss(Author)
- 2011(Publication Date)
- Palgrave Macmillan(Publisher)
61 3 The Context of the European Convention on Human Rights and the Human Rights Act 1998 This chapter illustrates contemporary European safeguards for Human Rights and Civil Liberties with specific reference to the nature and pur- pose of the European Convention on Human Rights (ECHR) which took effect in 1953 with the objective of avoiding the atrocities and abuses of human rights that had taken place in World Wars I and II. It does not form part of UK law but has developed as a separate system of jurispru- dence with its own institutions and procedures. There has been a clear expectation of compliance with the ECHR since 1953 and currently, a theory of State obligation 1 has developed whereby member states have to do more than just be seen to comply. In the UK, the Human Rights Act 1998 gives ‘greater effect’ to Convention Rights in two main ways; first, by making it clear that as far as possible the courts in this country should interpret domestic law in a way that is compatible with Convention Rights and second, by allowing people the right to take court proceed- ings if they think that their Convention Rights have been, or are going to be, breached. This chapter will also assess the relevance of the legal doctrine of the ‘Margin of Appreciation’ which reflects the ideal that there should be maximum compliance from all parties about the gen- eral standards that the convention sets and the relevance of the legal ‘Doctrine of Proportionality’ which is a way of testing whether member states’ actions are compatible with convention standards. The origin of the ‘human right’ In terms of the development of basic human rights, two philosophers in particular were influential – John Locke and Thomas Paine. John Locke, 62 Balancing Liberty and Security who would go into exile for his ideas, was writing at the time of signifi- cant constitutional change in the UK; changes which culminated in the Bill of Rights 1689.
eBook - PDF- Ezio Biglieri, G. Prati(Authors)
- 2014(Publication Date)
- North Holland(Publisher)
- 2. Status of the ECHR in International and Municipal Law: (a) The ECHR as a treaty, (b) The nature of the treaty obhga-tions as to individual rights, (c) Status of the ECHR in municipal law. - 3. Interpretation of the ECHR: (a) General principles, (b) The nature of the States' obliga-tions, (c) Inteφretation of restrictions. - 4. Exceptional Restrictions: (a) Emergency, (b) No freedom for the destruction of rights. - 5. Evolution of Convention Rights in the Jurisprudence of the Court and Commis-sion: (a) Elementary human rights, (b) The right to liberty, (c) Judicial guarantees, (d) Private and family life, (e) Fundamental freedoms. - 6. Evaluation. 1. History (a) Drafting history The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was signed in Rome on November 4, 1950 after a comparatively short drafting period (ETS, No. 5; UNTS, Vol. 213, p. 221). It is clearly influenced by the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948 on the basis of a draft for which R. Cassin of France was mainly responsible (-^ Human Rights, Universal Declaration (1948)). But even before the Declara-tion was adopted, proposals for a European Char-ter of Human Rights were presented to the Con-gress of the European Movement in The Hague in May 1948 (-^ European Integration). The Statute of the Council of Europe of May 5, 1949 expressly recognizes the obligation of each mem-ber State to respect —> human rights and fun-damental freedoms. After this Statute had come into force, the Consultative Assembly of the Council of Europe adopted on September 9, 1949 a draft prepared by its legal committee on the basis of a report by P.H. Teitgen, formerly French Minister of Justice. The Committee of Ministers of the Council of Europe created a Committee of Experts and later called a Confer-ence of Senior Officials in June 1950, which annexed a draft convention to its report.
eBook - PDFConstituting Europe
The European Court of Human Rights in a National, European and Global Context
- Andreas Føllesdal, Birgit Peters, Geir Ulfstein(Authors)
- 2013(Publication Date)
- Cambridge University Press(Publisher)
As it is neither bound by national law, nor to human rights treaties to which only member states are bound, it has no formal legal role in guaranteeing those rights. Nevertheless, in order to achieve such protection, these rights had to be transformed into EU law. This was done by declaring them part of the general principles of Community law, now Union law. Resorting to this somewhat roundabout approach was made necessary by the combination of the absence of a bill containing classic human rights in the European founding treaties, and the EC/EU not being a party the ECHR, together with the repeated warnings by German courts referring cases to the ECJ. The warnings were made in those national courts’ explanation of the questions they posed in preliminary reference proceedings: if, in those instances, the ECJ were to refrain from taking a constructive approach to the protection of the rights in a manner equivalent to how they are protected under the German Grundgesetz, this would be reason for those German courts 2 A recent exception is the Convention on the Rights of Persons with Disabilities (13 December 2006) 2515 UNTS 3, entered into force 3 May 2008, which the EU signed on 30 March 2007 and ratified on 23 December 2010. 302 leonard f.m. besselink no longer to grant direct effect to the disputed European law of which the compatibility with fundamental rights was in doubt. Thus, via the convoluted route of the general principles of Union law, the ECHR rights became unilaterally incorporated into EU law, first in the ECJ case law only, and subsequently in the EU Treaty concluded in Maastricht in 1992 in a formula which we still find now in article 6(3) EU: Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
eBook - PDF- Jane Wright(Author)
- 2017(Publication Date)
- Hart Publishing(Publisher)
4 The European Convention on Human Rights Part 1—General Principles of Interpretation Introduction This chapter is divided into two parts. Part 1 conveys in broad terms the key gen-eral principles that guide Strasbourg in the interpretation of the European Con-vention of Human Rights (ECHR). Part 2 examines the Strasbourg jurisprudence relating to the Protected Rights under the Human Rights Act 1998 (HRA), as well as key cases that have been decided by the English courts. Section 7 HRA has intro-duced a statutory cause of action against public authorities that act incompatibly with the rights set out in Schedule 1 to the Act. English courts must take account of Strasbourg jurisprudence under section 2 HRA; the scope of the cause of action is therefore informed by reference to the case law in relation to specific rights and, arguably, the general principles of interpretation developed by Strasbourg since the ECHR came into force on 3 September 1953. The United Nations Vienna Declaration and Programme of Action, adopted by the World Conference on 25 June 1993, called upon states to treat human rights ‘globally in a fair and equal manner, on the same footing, and with the same emphasis’. However, a reading of the major human rights instruments reveals that human rights standards do not all require the same degree of protection at all times, and this comment applies with equal force to the Convention and its jurisprudence and indeed to English case law under the HRA. The ‘foreign cases’ discussed below are perhaps the clearest examples of the nuanced approach the courts take to the protection of human rights; where an individual faces the prospect of torture or ill-treatment on return to another state, the bar to prevent return is not set so high as in a case where he might face a violation of the right to freedom of expression. It is possible therefore to conceive of the Convention as a hierarchy of rights.
eBook - PDFLawyering Europe
European Law as a Transnational Social Field
- Antoine Vauchez, Bruno de Witte, Antoine Vauchez, Bruno de Witte(Authors)
- 2013(Publication Date)
- Hart Publishing(Publisher)
6 The ECHR and the Birth of (European) Human Rights Law as an Academic Discipline STÉPHANIE HENNETTE-VAUCHEZ I. INTRODUCTION I N MANY WAYS, the European Convention of Human Rights (ECHR) ‘suc-cess story’ 1 is all the more spectacular in that it initially faced many difficulties. First, because its aim was to proclaim ‘human rights’, an ill-identified object in 1950 (even more so than today). Indeed, because they are heavily value-driven, human rights had long been confined to the spheres of morals or politics. Their legalisation is only recent and dates back to after the Second World War 2 – both in national constitutions and international law. Furthermore, it is hardly immune from significant theoretical uncertainties, for it remains tricky to simultaneously mask its heavy axiological component and inspiration and tame it within legal/ formal frames. This holds true to the extent that even when successfully moulded into legal forms, the notion of human rights depends on particular visions of the world. This explains, for instance, the harshness of the debates that took place over the drafting of such human rights instruments as the Universal Declaration of Human Rights (UDHR). 3 Despite the limitation of its reach solely to the European world, similar difficulties were encountered by the drafters of the ECHR and many sources indicate that a final agreement was eventually reached more because of the political imperative the Convention had begun to stand for than 1 C Tomuschat, ‘Quo Vadis, Argentoratum ? The Success Story of the European Convention on Human Rights – and a Few Dark Stains’ (1992) 13 Human Rights Law Journal 401. 2 J Donnelly, ‘The Social Construction of International Human Rights’ in T Dunne and NJ Wheeler (eds), Rights and Global Politics (Cambridge, Cambridge University Press, 1999) 71: ‘with minor excep-tions, human rights simply were not a subject of international relations before WWII’.
eBook - PDF- Dirk Ehlers, Ulrich Becker, Et al., Dirk Ehlers(Authors)
- 2011(Publication Date)
- De Gruyter(Publisher)
6 The renaming to “Organisation for Security and Co-operation in Europe” took place after the political changes in Middle and Eastern Europe ( cf summit declaration of Helsinki “The Challenges of Change”, http://www.osce.org/documents/mcs/1992/07/4046_en.pdf; Bulletin of the Federal Government of Germany Nr 82 of 23 July 1992, 777, 781). 7 The ECSC-Treaty came out of force on 23 July 2002 (Art 97 ECSC-Treaty in the version of the Amsterdam Treaty); see Obwexer [2002] EuZW 517. 8 Klein (2001) 39 ArchVR 121, 123. 2 3 4 5 pean Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). 1. The Development of Human Rights Protection through the ECHR The European Convention on Human Rights , which originally had only 10 Member States, has developed over the years into an international system of human rights protection in which the Member States participate and which may be functionally compared with national constitutional jurisdictions. 9 Some authors even argue that it may be qualified as a European Fundamental Rights Constitution. 10 The European Court of Human Rights uses the term “constitutional instrument of European Public Order” 11 . a) Drafting History The idea of creating a European Convention on Human Rights including a Court for its implementation was first formed at the Congress of Europe organised by the Internatio-nal Committee of the Movements for European Unity. It was presided over by Winston Churchill. During the negotiations, the protection of property, the right of parents to edu-cate their children and the right to free elections were excluded from the original draft. 12 Additionally, Member States were permitted to formulate reservations. 13 This implied that they themselves could determine the extent of their human rights obligations deriving from the Convention. The European Convention on Human Rights entered into force on 3 September 1953 after ten states had ratified the document.
eBook - PDF- Gordon Anthony, Jean-Bernard Auby, John Morison, Tom Zwart, Gordon Anthony, Jean-Bernard Auby, John Morison, Tom Zwart(Authors)
- 2011(Publication Date)
- Hart Publishing(Publisher)
It must be underlined that even if the substance of the European convention has remained oriented towards the protection of civil and political rights, to the exclusion of social rights, the system of control with the intervention of an independent court able to provide adequate compensation to the aggrieved person 6 has no equivalent in any other supranational system, either regional or global. This is the first characteristic of the European approach to the protection of human rights: not only does it formulate a list of human rights which have to be respected, but it provides individuals with a system of effective judicial remedy in case of violation of their rights by the public authorities of their own country. In the EU the protection of fundamental rights followed a different track but progressively converged with that provided by the system of the ECHR. The founding Treaties of the Communities did not make any express reference to fundamental rights; such a reference did not seem to be necessary as the competence conferred to the Communities by the Treaties pertained essentially to the economic area and it was not apparent at the time that they could in any way affect the rights of the individuals. At the end of the 1960s, the ECJ had to decide cases in the area of common agricultural policy or competition which incidentally raised questions of protection of fundamental individual rights. It occurred that the question of respect of fundamental rights was tightly linked to that of the primacy of EC law upon the national law of Member States. In a 6 Art 50 ECHR. Jacqueline Dutheil de la Roch è re 300 landmark case decided in 1970, 7 where the question centred around the level of protection of individual rights guaranteed by EC law in comparison to the level of guarantee provided by the German Fundamental Law, the Court forcefully denied that the validity of a Community measure could be judged against principles of national constitutional law.
- Ellie Palmer(Author)
- 2007(Publication Date)
- Hart Publishing(Publisher)
2 The Regional Protection of Socio-economic Rights: Europe I. INTRODUCTION T HIS CHAPTER IS concerned with the protection of fundamental rights in the European region. Its purpose is to highlight developments in European Convention on Human Rights (ECHR) jurisprudence that are relevant to our subsequent evaluation of the role of courts in disputes over access to health and welfare services in English administrative law. The chapter demonstrates the extent to which the development of a jurisprudence of positive obligations in the ECHR rights has increased the likelihood of socio-economic challenges in domestic law following the enactment of the Human Rights Act (HRA) 1998; and the way in which the Strasbourg organs have defined the lim-its of their legitimate intervention in resource allocation disputes of the kind with which we are concerned. Our primary concern here is thus with Strasbourg jurisprudence. However, developments in the European Union, including the expansion of the internal market in the area of social provision, and the role of the European Court of Justice (ECJ) in the protection of fundamental rights have increased the impact of EU law not only on domestic policy issues, but also on the role of domestic courts in disputes over access to socio-economic entitlements. Thus, the final part of this chapter provides a brief outline of EU legal developments insofar as they have import for our discussion of substantive case law and the role of UK courts in subsequent chapters of the book. II. THE European Convention on Human Rights 1950 A. Background and Context: The Negative–Positive Dichotomy Revisited We have seen in chapter one above that during the establishment of a human rights framework for the European region, the divide between civil and political rights on the one hand and socio-economic rights on the other hand was strategically maintained. Thus, while a complex system of adjudication and
eBook - PDF- Karen Hulme(Author)
- 2022(Publication Date)
- Hart Publishing(Publisher)
48 Protocol No. 1 to the ECHR 1952 PROTOCOL NO. 1 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 1952* Printed at ETS No .009; Adopted: 20 March 1952; Entry into force: 18 May 1954; Current status: 45 state parties (at 1 .06 .2022) THE GOVERNMENTS SIGNATORY HERETO, BEING MEMBERS OF THE COUNCIL OF EUROPE, BEING resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as ‘the Convention’), HAVE AGREED AS FOLLOWS: Article 1 Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions .No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law .The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties .Article 2 Right to education No person shall be denied the right to education .In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions .Article 3 Right to free elections The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature .Article 4 Territorial application Any High Contracting Party may at the time of signature
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