I) The ECHR – Overview
1) Structure and protected rights
2) Margin of appreciation
3) Positive obligations
4) ECHR as living instrument
5) Autonomous interpretation
II) Historical background of the ECHR
I) The ECHR – Overview
1) Structure and protected rights
The Convention for the Protection of Human Rights and Fundamental Freedoms, usually referred to as European Convention on Human Rights (ECHR), is an international treaty by which signatory states oblige themselves to secure certain rights to persons within their jurisdiction (Art.1 ECHR). Persons who consider that a state has breached its obligations under the Convention and who have exhausted domestic remedies can seek redress before the European Court of Human Rights.
The Convention is comprised of three sections. The first section contains a catalogue of the fundamental rights and freedoms which the signatory states have to guarantee. Protected rights refer to
– The physical integrity and dignity of a person (the right to life, Art.2; prohibition of torture, Art.3; freedom from slavery, Art. 4; right to liberty,Art.5)
– Due procedure before courts of law (right to a fair trial, Art.6; prohibition of retroactive criminal legislation, Art.7; right to an effective legal remedy, Art.13)
– The protection of personal life (right to private life, Art.8; freedom of thought, Art.9; right to marry, Art.12; freedom from discrimination, Art.14)
– Communication and participation in society (freedom of expression, Art.10; freedom of assembly, Art.11).
Additional rights are enshrined in protocols to the Convention, which were added as the consensus regarding human rights standards among the contracting states progressed. The protocols are binding to those states which have ratified them.
Section two of the ECHR deals with the European Court of Human Rights. It governs inter alia the competencies of the Court, the election of judges and sets out rules of procedure applying before the Court. The rules laid down in the Convention are supplemented by Rules of Court which the Court has adopted.
The third section contains miscellaneous provisions.
Some of the rights enshrined in the ECHR are granted absolutely. They can under no circumstances be limited nor can they be derogated in exigent circumstances. Examples of such rights are the prohibition of torture enshrined in Art. 3 ECHR and the prohibition of slavery and forced labor guaranteed by Art. 4 ECHR.
Other rights may be derogated subject to the conditions set forth in article 15 ECHR in cases of public emergencies to the extent necessary to avert the danger to the life of the nation.
In addition to that, some articles of the Convention provide that the rights and freedoms entrenched in them may be limited and set out conditions for such limitations. In particular, the right to private life (article 8), the freedom of thought, conscience and religion (article 9), the freedom of expression (article 10) and the freedom of assembly (article11) may be restricted if the limitations
– are prescribed by law
– serve a purpose specified in the respective article
– are necessary in a democratic society
At times, rights guaranteed in a particular article of the ECHR conflict with rights entrenched in other provisions of the Convention. For example, the right to freedom of expression frequently collides with the right to private life. In such cases, the conflicting interests need to be pondered and a fair balance has to be struck between the rights at stake. Thus, rights enshrined in the Convention may also have inherent limitations.
The guarantees enshrined in the ECHR are a minimum standard. While signatory parties must not afford a level of human rights protection lower than that required by the Convention, they are free to exceed it. If the level of protection within a member state is higher than the protection provided by the ECHR, the Convention must not be construed as limiting any of the rights entrenched in the domestic legal framework of a member state (Art.53 ECHR).
2) Margin of Appreciation
The ECHR obliges member states to secure certain rights, but it is silent as to how precisely they have to meet this obligation. States have a margin of appreciation when ensuring the rights enshrined in the Convention. It is to a certain extent for the states to determine which measures they take to make sure that the convention rights are respected. If different rights guaranteed by the ECHR collide, the member states have a degree of discretion when deciding which of the rights they prioritize. By the same token, states have some discretion when deciding what terms like ‘national security’ (for example in article 8 para 2) mean within their jurisdiction of what they consider ‘necessary in a democratic society’ (for example in article 10 para 2, which permits restrictions of the freedom of expression subject to the condition that they are necessary in a democratic society). Often times, the interpretation of such terms or the decision, which of two colliding rights to prioritize entails value judgments. National authorities and courts are better positioned to assess the scope and meaning of certain values within their jurisdiction. Accordingly, they should decide how to ensure the rights enshrined in the Convention effectively, how to understand certain notions or which balance to strike between conflicting rights.
The Court has elaborated on the margin of appreciation doctrine in the case Handyside./.UK. In this case, the applicant had published a schoolbook, which contained passages that were perceived by many readers as encouraging pupils to consume porn, to smoke marihuana and to engage in sexual activities. British courts had ordered the confiscation and destruction of these books. The publisher complained that this decision by British courts amounted to a violation of his freedom of expression (article 10; the British government argued that the interference had been justified as necessary in a democratic society for the protection of morals (Article 10 paragraph 2 ECHR).
The Court emphasized that it was for the Contracting States to secure the rights enshrined in the Convention and that there was no common understanding of the term ‘morals’ within Europe. It concluded that it was therefore primarliy on the domestic courts to establish the meaning of this notion
‚The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines (….)it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them (….)Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force.’
The margin of appreciation doctrine does not, however, give states free hand to do as they please. The European Court of Human Rights scrutinizes whether they have exceeded the limits of their discretion and whether it is still ensured that the rights enshrined in the Convention are protected effectively. The degree of control by the Court differs depending on the right in question and on the area of life in which the right is at stake (Smith and Grady v. UK). Some rights – such as the freedom of expression and the right to private life – frequently have to be pondered against others, which leaves for space for value judgments and thus enlarges the margin of appreciation.
Other rights are granted absolutely, which reduces the discretion when it comes to securing this right. While in certain areas general interests such as national security or the economic development typically play a role, they usually do not have to be considered in other fields. This has an impact on the margin of appreciation. For example, states will have more leeway when the protection of home against environmental nuisances under article 8 is at stake than in cases in which effective measures against torture of prison inmates are in question. The margin of appreciation is limited if an important facet of a person’s identity or existence is at stake (Grand Chamber Judgment in the case Dickson v. UK).
3) Positive obligations
The obligation to secure the rights enshrined in the Convention prohibits certain acts. For example, contracting states must not resort to torture (article 3 ECHR), they must not take a person’s live (article.2 ECHR), they must not enslave persons (article 4 ECHR).
In addition to this, the ECHR imposes positive obligations. This means that states can be obliged to act and to take active steps to ensure an effective enjoyment of the rights protected by the Convention. The scope of positive obligations is usually less clear than the ambit of the ‘negative obligations’ to refrain from certain actions. When establishing whether a certain positive obligation arises from an article of the Convention, a fair balance has to be struck between the interests of the individual and the interest of the community at large (Gaskin v UK, para 42).
Measures which contracting states have to take may include:
1) Carrying out an effective investigation in cases of potential or alleged human rights violations. The main fields of application of this obligation are the right to life and the prohibition of torture, but the European Court of Human Rights has also inferred positive obligations from other articles of the Convention. For example, in the case Özgur Gündem v. Turkey the Court held that article 10 ECHR (Freedom of expression) may entail an obligation to conduct effective investigations of threats against journalists.
The case Kaya v Turkey concerned the obligation to undertake effective investigations in cases of possible violations of the right to life. Mr Kaya had been killed by security forces. There were different accounts of the circumstances which had led to the killing. The applicant, who was the brother of the deceased, claimed that Mr Kaya had seen that a neighbor was arrested. He had tried to escape for fear of being taken into custody himself and members of the security forces had shot him on the run. The Government alleged that the late Mr Kaya had been part of a group of terrorists attacking security forces and that he had been killed in self-defense. The Court did not consider the evidence brought before it sufficient to find a violation of article 2 ECHR because of the killing of Mr Kaya. However, the ECtHR also stated that article 2 ECHR read together with the obligation to secure the rights enshrined in the Convention (article 1 ECHR) entailed an obligation to conduct an effective official investigation in cases in which a life had been taken by state agents. The Court pointed out that the prosecutor, who had been in charge of the investigation in Turkey, had based hid finding that Mr Kaya had been killed in the course of a terrorist attack solely on statements by members of the security forces – without obtaining further evidence. It found Turkey in violation of Art.2 for failure to carry out an effective investigation.
An example of a judgment in which the Court dealt with the obligation to carry out an effective investigation under article 3 is the case Jasar v Macedonia
2) Adopting laws or amending legislation. Despite of the margin of appreciation which contracting states have when deciding how to secure the convention rights (see above),the ECHR may entail a positive obligation to pass certain laws in order to ensure an effective protection of the rights enshrined in the Convention. In the case X and Y v The Netherlands, the Court dealt with the effective protection of the right to private life under Art. 8. The applicant was a mentally disabled girl who lived in a residence for disabled persons. The son of the director of this privately run residence forced her to have sexual intercourse with him. According to Dutch law in force at the material time, taking advantage of a person’s mental disability for sexual reasons did not constitute a punishable act. There was, however, a possibility to file a civil action and gain compensation. The European Court of Human Rights held that the effective protection of the right to private life required a criminal sanction in cases like the one at hand.
In the case Kudla v Poland, the Grand Chamber of the Court held that Art.13 read together with the right to a speedy trial under Art.6 requires a domestic legal remedy against overly long proceedings.
3) Taking certain actions. The ECHR may also impose a positive obligation to take factual measures or actions which guarantee the effective enjoyment of rights entrenched in the Convention. For example, the Court has reiterated that the right to assembly (Art.11 ECHR) may carry with it an obligation to protect demonstrations and ensure their peaceful conduct (Oya Ataman v Turkey para 35).
4) Making institutional changes. Contracting states may be under an obligation to organize their institutions in a fashion that ensures that rights guaranteed by the Convention become effective. For example, Art. 6 provides for a right to a trial within reasonable time. This does not only entail an obligation for the judge(s) handling the case to proceed without undue delays. It also means that contracting states have to provide the Court system with sufficient resources and to organize it in a way that ensures speedy trials (Bottazzi v Italy, Salesi v Italy )
4) ECHR as ‘living instrument’
While the European Court of Human Rights is not formally bound by precedents, it has held that it is in the interest of legal certainty and foreseeability of rulings not to change its jurisdiction without compelling reasons.
On the other hand, the Court has reiterated that the ECHR is a ‘living instrument’. The rights enshrined in the Convention have to be interpreted in the light of present day conditions so as to be practical and effective. Sociological, technological and scientific changes, evolving standards in the field of human rights and altering views on morals and ethics have to be considered when applying the Convention.
Therefore, the Court has on several occasions modified its views on certain subjects because of scientific developments or changing moral standards. For example, it has initially refuted that relationships between same-sex couples fall within the scope of family life under article 8 ECHR (Mata Estevez v Spain). In Schalk and Kopf v Austria, however, the Court has acknowledged that same-sex couples enjoy the protection afforded to family life by art.8. in view of ‘the rapid evolution of attitudes towards same sex-couples’ which had taken place in many Council of Europe member states and the growing tendency to include same-sex couples in the notion of family in EU law.
5) Autonomous interpretation
The ECtHR interprets the legal notions employed in the European Convention on Human Rights autonomously. Terms which are contained in the Convention may have a different scope within the legal framework of a contracting state; the Court does not consider itself bound by the meaning which these terms have in a domestic jurisdiction. Thus, the protection afforded by the Convention may be much wider in scope than the protection offered under national law. For example, the notion of family life (and the obligations of the state to respect it) may extend to forms of cohabitation which are not considered as constituting a ‘family’ under the laws of a member state.
This prevents the member states from curtailing the Convention rights by defining the notions used in the ECHR and from circumventing their international obligations. Example: In Kostovski v The Netherlands, informers had testified to police and to an investigative judge that the applicant had been involved in a robbery. Since the informers wished to remain anonymous, they did not testify during the trial and the applicant was not given the opportunity to question them directly. Instead, the police officer and the investigative judge, to which the informers had given the information, testified and relayed what the informers had told them. After his conviction, the applicant submitted an application to the European Court of Human Rights. He relied on Article 6 para 3 letter d) ECHR and claimed that his right to confront a witness against him had been violated. The Dutch Government argued that he had not been denied this right, because pursuant to Dutch procedural law the police officer and the investigative judge, who had testified during the trial, had been the witnesses – and the applicant had had the opportunity to question them. The Court rejected this argument. It pointed out that the question, who is a witness did not have to be decided on the basis of domestic law but that the term had to be interpreted autonomously. Applying this autonomous interpretation, the Court ruled that the persons who had provided the information about the involvement of the applicant were to be considered witnesses.
II) Historical background of the ECHR
The ECHR was drafted in the aftermath of the 2nd World War under the auspices of the Council of Europe. It was conceived for two purposes: To ensure the protection of certain fundamental rights and freedoms and to contribute to the establishment of stable democracies governed by the rule of law across Europe. These objectives are reflected in the possibility to submit individual applications to the European Court of Human Rights seeking protection of individual rights (article 34 ECHR) and the possibility to file inter-state applications, which is accorded to states by article 33 ECHR.
Until the 2nd World War, the protection of human rights had been considered a matter between states and persons under their jurisdiction; the concept of national sovereignty had prevented states or the international community from interfering with the way human rights were safeguarded in other states. Where such interference had taken place, it was in the form of diplomatic protection of own citizens under the jurisdiction of another state. The atrocities committed in the first half of the century across Europe and in particular the terror of the holocaust had shown that this form of protections was not adequate.
In addition to this, it had become clear that the rule of law was a pre-condition for peaceful cohabitation of peoples – and that states which were disrespectful of human rights represented a threat not only to their own citizens, but also to neighbouring countries.
After the 2nd World War, a new order had to be established in Europe. In 1948, a number of groups advocating for European unity organized a congress – the Congress of Europe – in The Hague, Netherlands, during which concepts for future co-operation of peoples in Europe were discussed. One of the resolutions adopted at the conference was to establish a commission mandated to draft a charter of fundamental rights to be respected by all European states and to set out requirements of a democratic state.
Following the ‘Congress of Europe’, several European nations joined to found the Council of Europe, an international organization created ‘order to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’ (Statute of the Council of Europe). According to the Statute, membership in the Council of Europe required acceptance of the principle of rule of law and securing of fundamental rights and freedoms to all citizens within the jurisdiction of a state.
The Consultative Assembly, an organ of the Council of Europe which was later on baptized Parliamentary Assembly, took up the idea of a human rights charter discussed during the Congress of Europe. It set up a commission charged to draft a catalogue of human rights all Council of Europe member states should commit to. After the document had been discussed and revised in several committees and bodies of the Council of Europe, the Committee of Ministers, the executive organ of the Council of Europe, adopted a text in August 1950. This document was the basis of the European Convention on Human Rights. The ECHR was signed on 4 November 1950 in Rome and entered into force on 3 September 1953.