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European Convention on Human Rights

The European Convention on Human Rights was adopted under the auspices of the Council of Europe to protect human rights and fundamental freedoms. The Council is not to be confused with the European Union, which is not a party to the Convention and has no role in the administration of the European Court of Human Rights. Most Council of Europe member states are party to it; those that are not are required as a condition of their membership to accede to the convention at the earliest opportunity.

The official name of the Convention is the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Convention has several protocols. This includes protocol six, which prohibits the death penalty except in time of war. The protocols accepted varied from State Party to State Party, though it is understood that State Parties should be party to as many protocols as possible.

The Convention establishes the European Court of Human Rights. Any person who feels their rights have been violated under the Convention by a state party can take a case to the Court; the decisions of the Court are legally binding, and the Court has the power to award damages. State Parties can also take cases against other State Parties to the Court, although this power is rarely used.

Prior to the entry into force of Protocol 11, individuals did not have direct access to the Court; they had to apply to the European Commission on Human Rights[?], which if it found the case to be well-founded would launch a case in the Court on the individual's behalf. Protocol 11 abolished the Commission, enlarged the Court, and allowed individuals to take cases directly to the court.

Table of contents

Protocols

As of late 2002, thirteen protocols to the Covention have been opened for signature. We can divide these into two main groups: those changing the machinery of the convention, and those adding additional rights to those protected by the convention.

The Convention has been amended several times by means of protocols attached thereto. These amendments have only ever affected the Convention machinery, not the substantive content of the rights it protects. Unlike the substantive protocols, these protocols have achieved universal ratification among parties to the original Convention. The protocols themselves required universal ratification to enter into force, in order to maintain the institutional unity of the Convention machinery.

These protocols were Protocol 3 (ETS 45, adopted 1963-05-06), Protocol 5 (ETS 55, adopted 1966-01-20), Protocol 8 (ETS 118, adopted 1985-03-19), Protocol 9 (ETS 140, adopted 1990-11-6), Protocol 10 (ETS 146, 1992-03-25), and most importantly Protocol 11 (ETS 155, adopted 1994-05-11). Protocol 2 (ETS 44, adopted 1963-05-06), although it does not amend the text of the Convention as such, stipulates that it is to be treated as an integral part of the Convention, and has been consolidated into the Convention by Protocol 11.

Protocol 11 established a fundamental change in the machinery of the Convention. As noted above, the Commission was abolished, and individuals were permitted to apply directly to the court. This also necessitated changing the structure of the Court, to support its new, expanded role. Protocol 11 also abolished all the judicial functions of the Committee of Ministers. Protocol 11 also made necessary consequential amendments to those protocols extending its substantive protections.

The other protocols (Protocols 1, 4, 6, 7, 12 and 13) add substantive rights to those protected by the Convention, and will be discussed below, after the discussion of those contained in the Convention itself.

Substantive Contents

Article 2 protects the right of every person to their life. The article contains exceptions for the cases of lawful executions, and deaths as a result of "the use of force which is no more than absolutely necessary" in defending one's self or others, arresting a suspect or fugitive, and suppressing riots or insurrections. The exemption for the case of lawful executions is further restricted by Protocols 6 and 13 (see below), for those parties who are also parties to those protocols.

Article 3 prohibits torture, and "inhuman or degrading treatment or punishment". The European Court of Human Rights has held that this provision prohibits the extradition of a person to a foreign state if they are likely to be subjected there to torture.

Article 4 prohibits slavery and forced labour, but it excepts conscription, national service and prison labour from this prohibition.

Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on suspicion of a crime or imprisonment in fulfilment of a sentence. The article provides the right to be informed in a language one understands of the charge against them, the right to judicial proceedings to determine the legality of one's arrest or detention, and the right to compensation in the case of arrest or detention in violation of this article.

Article 6 provides a detailed right to a fair trial.

Article 7 provides for the principle of nulla poena sine lege, that there can be no punishment for behaviour which was not a criminal offence at the time of its admission. The article states that a criminal offence is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under their domestic law at the time, so long as it was prohibited by (possibly customary[?]) international law.

Article 8 provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions. This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy.

Article 9 provides a right to freedom of thought, conscience and religion. Article 10 provides the right to freedom of expression. Article 11 protects the right to freedom of assembly and association.

Article 12 provides a right for men and women of marrigeable age to marry and establish a family. Despite a number of invitations, the Court has so far refused to apply the protections of this article to homosexual marriage or issues of marriage and transsexuality. The Court has defended this on the grounds that the article was intended to apply only to traditional marriage, and that a wide margin of appreciation must be granted to parties in this area.

Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention.

Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways, and narrow in others. On the one hand, the article protects against discrimination based on any of a wide range of grounds. The article provides a list of such grounds, including race, sex, religion and several other criteria, and most significantly providing that this list is non-exhaustive. On the other hand, the article's scope is limited only to discriminate in rights under the Convention. Protocol 12 extends this prohibition to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long as it is provided for in national law.

Article 15 provides for derogation from the rights guaranteed by the Convention in time of emergency.

Article 16 exempts restrictions on the politicial activities of aliens from the Convention.

Article 17 provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of those rights.

Article 18 provides that any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided.

Protocol 1

Article 1 provides for the protection of property. Article 2 provides for the right to an education, and the right for parents to have their children educating in accordance with their religious and other views. Article 3 provides for the right to regular, free and fair elections.

Protocol 4

Protocol 6

Requires parties to restrict the application of the death penalty to times of war or national emergency.

Protocol 7

Protocol 12

Protocol 13

Requires parties to abolish the death penalty completely.



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