The European Convention on Human Rights

Chapter 14
The European Convention on Human Rights

Alastair Mowbray

1. The Relationship Between the UDHR and the ECHR

The close interconnection between the UDHR1 and the Convention for the Protection of Human Rights and Fundamental Freedoms,2 generally known as the European Convention on Human Rights (ECHR/Convention), is clearly expressed in the preamble to the latter treaty. The signatory states begin by ‘considering the UDHR’ and, ‘being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’, agree to respect the rights and freedoms elaborated in the ECHR. If we compare the ECHR guarantees with those contained in the UDHR, we see that Article 2 (right to life) of the ECHR replicates, in greater detail, the first element of Article 3 of the UDHR. Article 3 of the ECHR (prohibition of torture) contains almost identical wording to that of Article 5 of the UDHR. Article 4 (prohibition of slavery and forced labour) of the ECHR proscribes, at greater length, the content of Article 4 of the UDHR. Article 5 of the ECHR (right to liberty and security) repeats, again in a more elaborate form, the latter part of Article 3 and two-thirds of Article 9 of the UDHR. Article 6 (right to a fair trial) of the ECHR covers the same rights as Article 10 and Article 11(1) of the UDHR, while Article 7 (no punishment without law) of the ECHR encompasses Article 11(2) of the UDHR. Article 8 of the ECHR (right to respect for private and family life) safeguards the rights in Article 12 of the UDHR, with the latter’s protection of a person’s reputation falling under Article 10 of the ECHR. Article 9 (freedom of thought, conscience and religion) of the ECHR uses almost identical terminology to Article 18 of the UDHR. Article 10 of the ECHR (freedom of expression) covers the same matters as Article 19 of the UDHR. Article 11 of the ECHR (freedom of assembly and association) elaborates the rights contained in Article 20(1) and Article 23(4) (right to form and join trade unions) of the UDHR. Article 12 of the ECHR (right to marry) is similar to the first element of Article 16(1) of the UDHR. Article 13 of the ECHR requires all member states to establish effective domestic remedies for everyone whose rights and freedoms under the ECHR have been violated, while Article 8 of the UDHR provides for such remedies in respect of violations of fundamental rights derived from the constitution or law. Article 14 of the ECHR prohibits discrimination in the enjoyment of the rights and freedoms defined in the ECHR; likewise, Article 2 of the UDHR states that ‘everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind.’. Both Article 17 of the ECHR and Article 30 of the UDHR state that nothing in the respective instruments provides any right for persons, groups or states to engage in any activity aimed at the destruction of the rights and freedoms elaborated in the convention and declaration respectively.

So we have seen there is considerable overlap between the ECHR and the UDHR. However, it must also be appreciated that the ECHR was shaped and drafted in accordance with European constitutional history and ideas.3 For example, seven months before the UDHR was proclaimed, the ‘Congress of Europe’, a gathering of over 1,000 politicians and representatives of civil society in The Hague, issued a pledge expressing a desire for a Charter of Human Rights that would guarantee liberty of thought, assembly, expression and the right to form a political opposition. The congress also wanted a court of justice, possessing appropriate sanctions, to implement the charter. These aims were subsequently refined into a draft European Convention on Human Rights and Statute of the European Court of Human Rights by a committee of the European Movement chaired by Pierre-Henri Teitgen. Soon after the foundation of the Council of Europe, in May 1949,4 the European Movement’s drafts were submitted to the Committee of Ministers (the executive body of the Council of Europe). The dialogue between the Council of Europe’s Consultative Assembly (representing national parliaments and now known as the Parliamentary Assembly) and the Committee of Ministers refined the content of the ECHR. Early on in the drafting process, it became clear that the ECHR would have a narrower scope in its coverage of rights than the UDHR. As Sir David Maxwell-Fyfe, who had been a member of the Teitgen Committee, said in the Consultative Assembly:

Our list, it is true, contains none of the so-called economic or social rights which appear in the U.N.O. Declaration. Such rights would, in my view, be too controversial and difficult of enforcement even in the changing state of social and international development in Europe, and their inclusion would jeopardise the acceptance of the Convention. Examples, on which I need not expatiate, are the right to free choice of employment, and the right, unknown to you, I am sure, Mr. President, of rest or leisure.5

Secondly, the ECHR differs from the UDHR in that many of its rights and freedoms, together with their associated limitations, are expressed in much greater detail than the latter. An example is the right to life, the most fundamental of all human rights; in the UDHR, it is proclaimed in six words; ‘everyone has the right to life.’6 In contrast, the corresponding Article 2 of the ECHR takes over 100 words to elaborate the right and its permitted exceptions.

2(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

(2) Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

One explanation for these different approaches is that the UDHR contains a general limitation clause in Article 29:

In contrast, the ECHR articulates exceptions to its rights and freedoms on an article-by-article basis. During the drafting of the ECHR, the UK successfully took the lead in advocating the need for specificity in defining the rights and freedoms guaranteed by the convention.7

2. Additional Protocols

The substantive guarantees of the ECHR have been expanded by later additional protocols, some of which echo rights and freedoms contained in the UDHR. The first protocol8 was opened for signature within two years of the ECHR being promulgated. The protocol contains three controversial rights which the member states could not agree upon including in the original text of the ECHR.9 The ‘Protection of property’ (Article 1) and the ‘Right to education’ (Article 2) have strong socio-economic aspects. The former was politically sensitive to governments, such as the 1945 Labour administration in Britain, which had undertaken large-scale nationalization of basic industries such as coal mining. Hence, the text formulated did not expressly safeguard the right to property, as found in Article 17 of the UDHR.10 Furthermore, Article 1, following the style of the ECHR, includes a number of limitations.

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.

The right to education obviously has extensive cost implications for states (e.g. what financial contributions are parents and students expected to make?), so it is perhaps not surprising that the first limb of Article 2 was defined in negative terms:

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.

The corresponding Article 26 of the UDHR,11 reflecting a wider spectrum of state economic development, elaborated a more extensive set of goals. The third element of the protocol, Article 3 the ‘Right to free elections’,12 was also drafted in cautious terms with the democratic obligation being placed on member states rather than express rights being conferred on citizens. In comparison, Article 21 of the UDHR, again, has a broader scope.13 The protocol came into force in 1954, and by 2009 all but two member states, Switzerland and Monaco, had ratified it.

In 1963 the member states agreed the text of Protocol No. 4 to the ECHR.14 Part of the motivation behind this protocol was to take account of the ongoing work at the United Nations (UN) to draft the International Covenant on Civil and Political Rights (ICCPR).15 Furthermore, Article 2, ‘Freedom of movement’, of the Protocol provided that:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

This article is the ECHR equivalent to Article 13 of the UDHR.16 The protocol entered into force in 1968. However, neither Greece nor Switzerland had signed Protocol No. 4 by 2009. The UK and Turkey had signed but not ratified the protocol.

After the adoption of the ICCPR in December 1966, by the UN General Assembly, the Committee of Ministers of the Council of Europe began a programme to compare the coverage of the ECHR with that of the covenant. This eventually led to the promulgation of Protocol No. 7 to the ECHR.17 Article 5 of the protocol states:

Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.

In so providing, the protocol addresses the second limb of Article 16(1) of the UDHR.18 The protocol entered into force in 1988. But, the UK had not signed Protocol No. 7 by 2009 and Belgium, Germany, The Netherlands and Turkey had not ratified it.

The most recent protocol which broadens the ECHR to encompass another UDHR right is Protocol No. 12.19 The protocol provides a general prohibition of discrimination20 that echoes Article 7 of the UDHR.21 The protocol was inspired by the UDHR’s basic belief that ‘[a]ll human beings are born free and equal in dignity and rights’22 and the guarantee contained in Article 7.The Council of Europe’s programmes to promote equality between men and women and combat racism and intolerance also underpinned the creation of the protocol.23 The protocol entered into force in 2005. However, by 2009, it had been ratified by only 17 member states, and a number of states, including Denmark, France, Poland, Sweden, Switzerland and the UK, had not signed it.

We have seen how over 50 years the member states have undertaken a step-by-step process of widening, via additional protocols, the substantive rights and freedoms guaranteed by the ECHR to provide further protection for UDHR provisions. This is to be commended, although the negotiation and ratification stages can be lengthy. However, the Committee of Ministers, the dominant institution in the reform process, has retained the fundamental philosophy of the ECHR to ensure that the protocols should concentrate upon civil and political, not economic and social, rights.24

3. The Control System of the ECHR

While the UDHR sought to proclaim the rights and freedoms enshrined in the text, it did not provide any system to enforce those provisions. A major achievement of the ECHR was that it created an international system to adjudicate upon whether member states had infringed any of the guarantees elaborated in the convention and to provide redress if a breach had occurred. This involved a considerable international intrusion into the traditionally sacrosanct domestic affairs of member states. However, given the earlier gross violations of human rights by the Nazis and their allies, it was considered necessary to establish an international system to protect basic rights and freedoms in those states belonging to the Council of Europe in order to prevent further atrocities in the future. But, in order to respond to the sensitivities of member states on this topic, the original control system established under the ECHR was subject to parties to the convention undertaking optional recognition of (1) the right of a person claiming to be the victim of a violation of convention guarantees by a member state to bring a complaint against that state before the European Commission of Human Rights (Commission)25 and (2) to recognize the jurisdiction of the European Court of Human Rights (Court).26 As time passed, more states made those declarations,27 and by the early 1990s all members states were under a political obligation, within the Council of Europe, to recognize the jurisdiction of the court.

The original control system, physically located in Strasbourg, was institutionally complex. Membership of the commission was limited to a number of persons equalling the total of states parties to the ECHR.28 Lists of three candidates for each place on the commission were drawn up by the Parliamentary Assembly and one candidate was elected by the Committee of Ministers. Once appointed, members of the commission were required to act as independent persons, not as representatives of any particular state.29 They held office for a period of 6 years and were eligible for re-election. The commission determined the admissibility of applications, mainly from individuals who claimed to be the personal victims of violations by member states. If a complaint was found to be admissible, the commission then sought to determine the facts of the dispute; generally, this was a documentary process with the applicant and respondent state submitting supporting written evidence. At the same time, the commission sought to see whether it could achieve a negotiated ‘friendly settlement’ between the parties. If no such settlement could be agreed, the commission would produce its opinion as to whether there had been a breach of the ECHR. The commission was a quasi-judicial body that performed its functions in secret and did not make binding decisions. Its opinions were normally sent to the Committee of Ministers. The ministers, generally acting through their ambassadors, decided (by a two-thirds majority) whether there had been a breach of the convention. The complainant had no involvement in this process. Where, however, a case was considered to be legally significant – for example, because it raised a novel issue concerning the interpretation of the ECHR, or was otherwise important – the commission, a state concerned in the complaint, or the individual complainant30 could refer the case to the court for determination.

The original court created by the ECHR was a part-time body, like the commission, with a membership equal to the number of states belonging to the Council of Europe. The judges were elected by the Parliamentary Assembly from a shortlist of candidates submitted by each state. The judges had to be ‘of high moral character’ and must either possess the qualifications required for appointment to high judicial office or be jurisconsults (i.e. academics or other types of experts) of recognized competence.31 On appointment, the judges were to act independently and were forbidden to hold any positions incompatible with their impartiality.32 The idea of a ‘national judge’ was to enable a member of the court to be fully cognizant of each state’s domestic legal order. The judges held office for periods of 9 years and were eligible for re-election. When a case was referred to the court, it examined the merits of the complaint in a fully judicial manner and normally held an oral hearing at which the parties could submit their arguments via legal representatives. In the early decades of the court’s existence, individual complainants had no standing before the court, as the ECHR did not confer such procedural rights on individuals. However, in 1983, the court sought to partially redress this omission, through an amendment to the Rules of the Court, by allowing persons whose cases had been referred to the court to appoint their own lawyers to represent their interests. After the completion of written and oral proceedings, the court would deliver its judgement (dissenting opinions could be issued). If the court found a breach of the rights and freedoms guaranteed by the ECHR, it could award the successful complainant ‘just satisfaction’.33 This was a sum of money the respondent state was obliged to pay to compensate the complainant for (1) pecuniary damage (e.g. in respect of the unlawful seizure of a complainant’s property34), (2) non-pecuniary damage (e.g. pain and anxiety suffered by a detainee subject to police maltreatment35) suffered, and (3) the reasonable legal costs incurred by complainants in seeking to protect their convention rights via domestic and Strasbourg proceedings. The court tended to be cautious in making such awards.36

The Committee of Ministers was37 (and remains today38) responsible for supervising the execution of judgements made by the court. If a respondent state had been found in breach of the convention, it was required to notify the committee when it had paid any just satisfaction awarded and what ‘individual’ measures (i.e. those concerning the successful applicant) and ‘general’ measures (i.e. those affecting other persons in a similar situation to the applicant) had been taken to remedy the breach identified by the court. Until the Committee of Ministers was satisfied with the responses from the relevant state, it would keep the case open on its agenda. The committee relied upon political pressure to require member states to comply with adverse judgments. It could take several years for judgements to be fully executed, especially when constitutional or legislative changes were required to be made.

By the 1980s, the member states began to contemplate fundamental reforms of the Strasbourg control system to improve its efficiency. Two alternatives were proposed: to convert the commission into a first-instance judicial body with the court exercising a selective appellate jurisdiction (an idea advocated by Switzerland), or to merge the commission and the court (supported by The Netherlands and Sweden). In 1993, the Committee of Ministers decided in favour of the latter, single court, solution (this was also favoured by the Parliamentary Assembly).39 Protocol No. 1140 established a new full-time court that possesses different powers and undertakes the admissibility, fact-finding and friendly settlement duties previously carried out by the commission. Controversially, the judges of the new court had their (renewable) terms of office reduced to 6 years. Also, Protocol 11 created a de facto appellate process whereby either party to a case can request the court’s Grand Chamber, composed of 17 judges, to reconsider the merits of important cases, such as those raising serious legal issues, after a judgement has been delivered by a seven-judge chamber.41 However, the Grand Chamber exercises this jurisdiction with circumspection and accepts only about 10 cases per year for reconsideration.42

From the perspective of persons who consider that a member state has violated their convention rights, the great benefit of Protocol 11 is that it has established a fully judicial international mechanism of redress for them. Under the protocol, all states parties to the ECHR (over the last two decades, all states wishing to join the Council of Europe43 have been required to become a party to the ECHR as a condition of membership of the council) recognize the jurisdiction of the court to receive and determine individual applications.44 These can be made by natural persons, legal persons45 or non-governmental organizations (NGOs)46 who claim to be the victims of such infringements. However, such applicants must first exhaust effective domestic remedies before making an application to the court.47 Unfortunately, most complainants to Strasbourg fail to satisfy this or the other admissibility criteria;48 as a result, over 90% of applications are determined to be inadmissible by the court.49 In regard to admissible cases, the relevant chambers seek to encourage the parties to agree friendly settlements.50 Where such an agreement cannot be obtained, the chamber will provide a judgement on the merits.51 Around 95% of these judgements will find at least one violation of the convention by the respondent state.52