History
Drafting
The Convention is drafted in broad terms, in a similar (albeit more modern) manner to the 1689 ScottishConvention articles
As amended by Protocol 11, the Convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions. Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the Court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high-level machinery for the operation of, respectively, the Commission and the Court, and Section V contained various concluding provisions. Many of the Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death).Article 1 – respecting rights
Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a Contracting State's own national territory; the obligation to secure Convention rights then also extends to foreign territories, such as occupied land in which the State exercises effective control. In ''Article 2 – life
Article 3 – torture
Article 3 prohibitsArticle 4 – servitude
Article 4 prohibitsArticle 5 – liberty and security
Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept – security of the person has not been subject to separate interpretation by the Court. Article 5 provides the right toArticle 6 – fair trial
Article 6 provides a detailedArticle 7 – retroactivity
Article 7 prohibits the retroactive criminalisation of acts and omissions. No person may be punished for an act that was not a criminal offence at the time of its commission. 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 domestic law at the time, so long as it was prohibited byArticle 8 – privacy
Article 8 provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. There have been cases discussing consensual familial sexual relationships, and how the criminalisation of this may violate this article. However, the ECHR still allows such familial sexual acts to be criminal. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of theArticle 9 – conscience and religion
Article 9 provides a right toArticle 10 – expression
Article 10 provides the right toArticle 11 – association
Article 11 protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". *''Vogt v. Germany'' (1995) *''Yazar, Karatas, Aksoy and Hep v. Turkey'' (2003) 36 EHRR 59 *''Bączkowski v. Poland'' (2005)Article 12 – marriage
Article 12 provides a right for women and men ofArticle 13 – effective remedy
Article 13 provides for the right for an effective legal remedy, remedy before national authorities for violations of rights under the Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free-standing and separately actionable infringement of the Convention.Article 14 – discrimination
Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways and narrow in others. It is broad in that it prohibits discrimination under a potentially unlimited number of grounds. While the article specifically prohibits discrimination based on "sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status", the last of these allows the court to extend to Article 14 protection to other grounds not specifically mentioned such as has been done regarding discrimination based on a person's sexual orientation. At the same time, the article's protection is limited in that it only prohibits discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex – Article 14 – in the enjoyment of the right to freedom of expression – Article 10). 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 – derogations
Article 15 allows contracting states to Derogation, derogate from certain rights guaranteed by the Convention in a time of "war or other public emergency threatening the life of the nation". Permissible derogations under article 15 must meet three substantive conditions: # there must be a public emergency threatening the life of the nation; # any measures taken in response must be "strictly required by the exigencies of the situation"; and # the measures taken in response to it must be in compliance with a state's other obligations under international law. In addition to these substantive requirements, the derogation must be procedurally sound. There must be some formal announcement of the derogation and notice of the derogation and any measures adopted under it, and the ending of the derogation must be communicated to the Secretary-General of the Council of Europe. As of 2016, eight member states had ever invoked derogations. The Court is quite permissive in accepting a state's derogations from the Convention but applies a higher degree of scrutiny in deciding whether measures taken by states under a derogation are, in the words of Article 15, "strictly required by the exigencies of the situation". Thus in ''A v United Kingdom'', the Court dismissed a claim that a derogation lodged by the British government in response to the September 11 attacks was invalid, but went on to find that measures taken by the United Kingdom under that derogation were disproportionate. Examples of such derogations include: * In the 1969 Greek case, the European Commission of Human Rights ruled that the derogation was invalid because the alleged Communist subversion did not pose a sufficient threat. This is the only time to date that the Convention system has rejected an attempted derogation. * Operation Demetrius—Internees arrested without trial pursuant to "Operation Demetrius" could not complain to the European Commission of Human Rights about breaches of Article 5 because on 27 June 1975, the UK lodged a notice with the Council of Europe declaring that there was a "public emergency within the meaning of Article 15(1) of the Convention".Article 16 – foreign parties
Article 16 allows states to restrict the political activity of foreigners. The Court has ruled that European Union member states cannot consider the nationals of other member states to be aliens.Article 17 – abuse of rights
Article 17 provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. This addresses instances where states seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights (for example where an individual issues a death threat). *''Communist Party of Germany v. the Federal Republic of Germany'' (1957), the Commission refused to consider the appeal by the Communist Party of Germany, stating that the communist doctrine advocated by them is incompatible with the convention, citing article 17's limitations on the rights to the extent necessarily to prevent their subversion by adherents of a totalitarian doctrine.Article 18 – permitted restrictions
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. For example, Article 5, which guarantees the right to personal freedom, may be explicitly limited in order to bring a suspect before a judge. To use pre-trial detention as a means of intimidation of a person under a false pretext is, therefore, a limitation of right (to freedom) which does not serve an explicitly provided purpose (to be brought before a judge), and is therefore contrary to Article 18.Convention protocols
, fifteen protocols to the Convention have been opened for signature. These can be divided into two main groups: those amending the framework of the convention system, and those expanding the rights that can be protected. The former require unanimous ratification by member states before coming into force, while the latter require a certain number of states to sign before coming into force.Protocol 1
This Protocol contains three different rights which the signatories could not agree to place in the Convention itself. Monaco and Switzerland have signed but never ratified Protocol 1.Article 1 – property
Article 1 ("A1P1") provides that "every natural or legal person is entitled to the Right to property, peaceful enjoyment of his possessions". TheArticle 2 – education
Article 2 provides for the right not to be denied an education and the freedom of education, right for parents to have their children educated in accordance with their religious and other views. It does not however guarantee any particular level of education of any particular quality. Although phrased in the Protocol as a negative right, in ''Leyla Şahin v. Turkey, Şahin v. Turkey'' the Court ruled that:Article 3 – elections
Article 3 provides for the right to elections performed by secret ballot, that are also free and that occur at regular intervals. *''Matthews v. United Kingdom'' (1999) 28 EHRR 361Protocol 4 – civil imprisonment, free movement, expulsion
Article 1 prohibits the imprisonment of people for inability to fulfil a contract. Article 2 provides for a freedom of movement, right to freely move within a country once lawfully there and for a right to leave any country. Article 3 prohibits the expulsion of nationals and provides for the right of an individual to enter a country of their nationality. Article 4 prohibits the collective expulsion of foreigners. Turkey and the United Kingdom have signed but never ratified Protocol 4. Greece and Switzerland have neither signed nor ratified this protocol. The United Kingdom's failure to ratify this protocol is due to concerns over the interaction of Article 2 and Article 3 with British nationality law. Specifically, several classes of "British national" (such as British National (Overseas)) do not have the right of abode in the United Kingdom and are subject to immigration control there. In 2009, the UK government stated that it had no plans to ratify Protocol 4 because of concerns that those articles could be taken as conferring that right.Protocol 6 – restriction of death penalty
Requires parties to restrict the application of the Capital punishment, death penalty to times of war or "imminent threat of war". Every Council of Europe member state has signed and ratified Protocol 6, except Russia, which has signed but not ratified.Protocol 7 – crime and family
*Article 1 provides for a right to fair trial, right to fair procedures for permanent residency, lawfully resident foreigners facing expulsion. *Article 2 provides for the right to appeal in criminal matters. *Article 3 provides for compensation for the victims of miscarriages of justice. *Article 4 prohibits the re-trial of anyone who has already been finally acquitted or convicted of a particular offence (Double jeopardy). *Article 5 provides for equality between spouses. Despite having signed the protocol more than thirty years ago Germany and the Netherlands have never ratified it. Turkey, which signed the protocol in 1985, ratified it in 2016, becoming the latest member state to do so. The United Kingdom has neither signed nor ratified the protocol.Protocol 12 – discrimination
Applies the current expansive and indefinite grounds of prohibited discrimination in #Article 14 – prohibition of discrimination, Article 14 to the exercise of any legal right and to the actions (including the obligations) of public authorities. The Protocol entered into force on 1 April 2005 and has () been ratified by 20 member states. Several member states—Bulgaria, Denmark,Protocol 13 – complete abolition of death penalty
Protocol 13 provides for the total abolition of the death penalty. Currently all Council of Europe member states but three have ratified Protocol 13. Armenia has signed but not ratified the protocol. Russia and Azerbaijan have not signed it.Procedural and institutional protocols
The Convention's provisions affecting institutional and procedural matters have been altered several times by means of protocols. These amendments have, with the exception of Protocol 2, amended the text of the convention. Protocol 2 did not amend the text of the convention as such but stipulated that it was to be treated as an integral part of the text. All of these protocols have required the unanimous ratification of all the member states of the Council of Europe to enter into force.Protocol 11
Protocols 2, 3, 5, 8, 9 and 10 have now been superseded by Protocol 11 which entered into force on 1 November 1998. It established a fundamental change in the machinery of the convention. It abolished the Commission, allowing individuals to apply directly to the Court, which was given compulsory jurisdiction and altered the latter's structure. Previously states could ratify the Convention without accepting the jurisdiction of the Court of Human Rights. The protocol also abolished the judicial functions of the Committee of Ministers.Protocol 14
Protocol 14 follows on from Protocol 11 in proposing to further improve the efficiency of the Court. It seeks to "filter" out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member state. Furthermore, a case will not be considered admissible where an applicant has not suffered a "significant disadvantage". This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject-matter of the application had already been considered by a national court. A new mechanism was introduced by Protocol 14 to assist enforcement of judgements by the Committee of Ministers. The Committee can ask the Court for an interpretation of a judgement and can even bring a member state before the Court for non-compliance of a previous judgement against that state. Protocol 14 also allows for European Union Relationship between the European Court of Justice and European Court of Human Rights#EU accession to ECHR, accession to the Convention.See Article 17 of thSee also
*Strasbourg Observers *Capital punishment in Europe *Charter of Fundamental Rights of the European Union *European Social Charter *Human Rights Act 1998 for how the Convention has been incorporated into the law of the United Kingdom. *Human rights in Europe *Territorial scope of European Convention on Human Rights *European Convention on Human Rights Act 2003 Irish Act similar to the British Human Rights Act 1998. *International Institute of Human Rights *United Kingdom constitutional lawNotes
Further reading
* * * * * *Kälin W., Künzli J. (2019). The Law of International Human Rights Protection. .External links