EUROPEAN CONVENTION ON HUMAN RIGHTS

Struggle is the father of all things. It is not by the principles of humanity that man lives or is able to preserve himself above the animal world, but solely by means of the most brutal struggle. If you do not fight, life will never be won. - Adolf Hitler -

The UK bangs the equality drum, but in reality is more like a Police State in the way it operates, according to cases that we are following and cite as examples. Ultimately, the ruling monarch is responsible for appointing a Government that provides an effective administration. Clearly, that is not the case as of June 2020.

The European Convention on Human Rights (ECHR) is an international human rights treaty between the 47 states that are members of the Council of Europe (CoE) - not to be confused with the European Union.

Governments signed up to the ECHR have made a legal commitment to abide by certain standards of behaviour and to protect the basic rights and freedoms of ordinary people. It is a treaty to protect the rule of law and promote democracy in European countries.

The European Convention on Human Rights was formally drafted by the Council of Europe in Strasbourg during the summer of 1949. Over 100 members of parliament from across Europe assembled to draft the charter. The United Kingdom was the very first nation to ratify the convention in March of 1951.

The Convention came into full effect on the 3rd September 1953. It was intended to be a simple, flexible roundup of Universal Rights, whose meaning could grow and adapt to society’s changing needs over time. Not only were ordinary people to be protected from abuse by the state, but duties were to be placed on those states to protect individuals. It has been hugely important in raising standards and increasing awareness of human rights across CoE member states, and beyond, though many are still working to dilute these protections for their citizens.

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 Loizidou v Turkey, the European Court of Human Rights ruled that jurisdiction of member states to the convention extended to areas under that state's effective control as a result of military action.

Article 2 – life

Article 2 protects the right of every person to their life. The right to life extends only to human beings, not to non-human animals, or to "legal persons" such as corporations. In Evans v United Kingdom, the Court ruled that the question of whether the right to life extends to a human embryo fell within a state's margin of appreciation. In Vo v France, the Court declined to extend the right to life to an unborn child, while stating that "it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention".

The Court has ruled that states have three main duties under Article 2:

- a duty to refrain from unlawful killing,
- a duty to investigate suspicious deaths, and
- in certain circumstances, a positive duty to prevent foreseeable loss of life.

The first paragraph of the article contains an exception for lawful executions, although this exception has largely been superseded by Protocols 6 and 13. Protocol 6 prohibits the imposition of the death penalty in peacetime, while Protocol 13 extends the prohibition to all circumstances. (For more on Protocols 6 and 13, see below).

The second paragraph of Article 2 provides that death resulting from defending oneself or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary".

Signatory states to the Convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war.

The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann and Others v United Kingdom it ruled that the exception contained in the second paragraph does not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.

Article 3 – torture

Article 3 prohibits torture and "inhuman or degrading treatment or punishment". There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention.

The Court has emphasized the fundamental nature of Article 3 in holding that the prohibition is made in "absolute terms ... irrespective of a victim's conduct". The Court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state.

Initially, the Court took a restrictive view on what consisted of torture, preferring to find that states had inflicted inhuman and degrading treatment. Thus the court held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture. In fact the Court only found a state guilty of torture in 1996 in the case of a detainee who was suspended by his arms while his hands were tied behind his back. Since then the Court has appeared to be more open to finding states guilty of torture and has even ruled that since the Convention is a "living instrument", treatment which it had previously characterized as inhuman or degrading treatment might in future be regarded as torture.

Article 4 – servitude

Article 4 prohibits slavery, servitude and forced labour but exempts labour:

done as a normal part of imprisonment,
in the form of compulsory military service or work done as an alternative by conscientious objectors,
required to be done during a state of emergency, and
considered to be a part of a person's normal "civic obligations".

Article 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 to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on reasonable suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides those arrested with the right to be informed, in a language they understand, of the reasons for the arrest and any charge they face, the right of prompt access to judicial proceedings to determine the legality of the arrest or detention, to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article.

Assanidze v. Georgia, App. No. 71503/01 (Eur. Ct. H.R. Apr. 8, 2004)

Article 6 – fair trial

Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).

The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. In compliance with this Article, Turkey has now adopted a law abolishing these courts.

Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.

Steel v. United Kingdom (1998) 28 EHRR 603
Assanidze v. Georgia, App. No. 71503/01 (Eur. Ct. H.R. Apr. 8, 2004)
Othman (Abu Qatada) v. United Kingdom (2012) – Abu Qatada could not be deported to Jordan as that would be a violation of Article 6 "given the real risk of the admission of evidence obtained by torture". This was the first time the court ruled that such an expulsion would be a violation of Article 6.

Article 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 by international law. The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed.

Article 7 incorporates the legal principle nullum crimen, nulla poena sine lege into the convention.

Relevant cases are:

Kokkinakis v. Greece [1993] ECHR 20
S.A.S. v. France [2014] ECHR 69

Article 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 deems 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 the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced parent to his/her child).

Notable case: Roman Zakharov v. Russia [2015] EHCR 47143/06

Article 9 – conscience and religion

Article 9 provides a right to freedom of thought, conscience and religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"

Relevant cases are:

Kokkinakis v. Greece [1993] ECHR 20
Universelles Leben e.V. v. Germany [1996] (app. no. 29745/96)
Buscarini and Others v. San Marino [1999] ECHR 7
Pichon and Sajous v. France [2001] ECHR 898
Leyla Şahin v. Turkey [2004] ECHR 299
Leela Förderkreis E.V. and Others v. Germany [2008] ECHR
Lautsi v. Italy [2011] ECHR 2412
S.A.S. v. France [2014] ECHR 695
Eweida v United Kingdom [2013], ECHR 2013

Article 10 – expression

Article 10 provides the right to freedom of expression, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This right includes the freedom to hold opinions, and to receive and impart information and ideas, but allows restrictions for:

interests of national security
territorial integrity or public safety
prevention of disorder or crime
protection of health or morals
protection of the reputation or the rights of others
preventing the disclosure of information received in confidence
maintaining the authority and impartiality of the judiciary

Relevant cases are:

Lingens v Austria (1986) 8 EHRR 407
The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, the "Spycatcher" case.
Bowman v United Kingdom [1998] ECHR 4, (1998) 26 EHRR 1, distributing vast quantities of anti-abortion material in contravention to election spending laws
Communist Party v Turkey (1998) 26 EHRR 1211
Appleby v United Kingdom (2003) 37 EHRR 38, protests in a private shopping mall

Article 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

Article 12 – marriage

Article 12 provides a right for women and men of marriageable 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 same-sex marriage. The Court has defended this on the grounds that the article was intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to parties in this area.

In Goodwin v United Kingdom the Court ruled that a law which still classified post-operative transsexual persons under their pre-operative sex, violated article 12 as it meant that transsexual persons were unable to marry individuals of their post-operative opposite sex. This reversed an earlier ruling in Rees v United Kingdom. This did not, however, alter the Court's understanding that Article 12 protects only different-sex couples.

The European Court of Human Rights ruled in Schalk and Kopf v Austria that countries are not required to provide marriage licenses for same-sex couples, however if a country allows same-sex couple marriage it must be done so under the same conditions that opposite-sex couples marriage face: in order to prevent a breach of article 14 – the prohibition of discrimination. Additionally, the court ruled in the 2015 case of Oliari and Others v Italy, that states have a positive obligation to ensure there is a specific legal framework for the recognition and protection of same-sex couples.

Article 13 – effective remedy

Article 13 provides for the right for an effective 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). It has been said that laws regarding familial sexual relationships (or incest) are in breach of Article 14 when combined with Article 8.

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 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, 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.

In order for a derogation itself to be valid, the emergency giving rise to it must be:

actual or imminent, although states do not have to wait for disasters to strike before taking preventive measures,
involve the whole nation, although a threat confined to a particular region may be treated as "threatening the life of the nation" in that particular region,
threaten the continuance of the organised life of the community,
exceptional such that measures and restriction permitted by the Convention would be "plainly inadequate" to deal with the emergency.

Examples of such derogations include:

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 – aliens

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).

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.

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