The European Convention on Human Rights (ECHR)
(formally the Convention for the Protection
of Human Rights and Fundamental Freedoms)
is an international treaty to protect human
rights and political freedoms in Europe. Drafted
in 1950 by the then newly formed Council of
Europe, the convention entered into force
on 3 September 1953. All Council of Europe
member states are party to the Convention
and new members are expected to ratify the
convention at the earliest opportunity.The
Convention established the European Court
of Human Rights (ECtHR). Any person who feels
his or her rights have been violated under
the Convention by a state party can take a
case to the Court. Judgments finding violations
are binding on the States concerned and they
are obliged to execute them. The Committee
of Ministers of the Council of Europe monitors
the execution of judgements, particularly
to ensure payment of the amounts awarded by
the Court to the applicants in compensation
for the damage they have sustained. The compensations
imposed under ECHR can be large; in 2014 Russia
was ordered to pay in excess of $2 billion
in damages to former shareholders of Yukos.The
Convention has several protocols, which amend
the convention framework.
== History ==
The European Convention on Human Rights has
played an important role in the development
and awareness of Human Rights in Europe.
The development of a regional system of human
rights protection operating across Europe
can be seen as a direct response to twin concerns.
First, in the aftermath of the Second World
War, the convention, drawing on the inspiration
of the Universal Declaration of Human Rights
can be seen as part of a wider response of
the Allied Powers in delivering a human rights
agenda through which it was believed that
the most serious human rights violations which
had occurred during the Second World War could
be avoided in the future. Second, the Convention
was a response to the growth of Communism
in Central and Eastern Europe and designed
to protect the member states of the Council
of Europe from communist subversion. This,
in part, explains the constant references
to values and principles that are "necessary
in a democratic society" throughout the Convention,
despite the fact that such principles are
not in any way defined within the convention
itself.From 7 to 10 May 1948 with the attendance
of politicians (such as Winston Churchill,
François Mitterrand and Konrad Adenauer),
civil society representatives, academics,
business leaders, trade unionist and religious
leader was organised gathering-The "Congress
of Europe" in Hague. At the end of Congress
the declaration and following pledge was issued
which demonstrated the initial seeds of modern
European institutes, including ECHR. The second
and third Articles of Pledge stated: We desire
a Charter of Human Rights guaranteeing liberty
of thought, assembly and expression as well
as right to form a political opposition. We
desire a Court of Justice with adequate sanctions
for the implementation of this Charter.The
Convention was drafted by the Council of Europe
after the Second World War in response to
a call issued by Europeans from all walks
of life who had gathered at the Hague Congress.
Over 100 parliamentarians from the twelve
member states of the Council of Europe gathered
in Strasbourg in the summer of 1949 for the
first ever meeting of the Council's Consultative
Assembly to draft a "charter of human rights"
and to establish a court to enforce it. British
MP and lawyer Sir David Maxwell-Fyfe, the
Chair of the Assembly's Committee on Legal
and Administrative Questions, was one of its
leading members and guided the drafting of
the Convention. As a prosecutor at the Nuremberg
Trials, he had seen first-hand how international
justice could be effectively applied. With
his help, the French former minister and Resistance
fighter Pierre-Henri Teitgen submitted a report
to the Assembly proposing a list of rights
to be protected, selecting a number from the
Universal Declaration of Human Rights just
agreed to in New York, and defining how the
enforcing judicial mechanism might operate.
After extensive debates, the Assembly sent
its final proposal to the Council's Committee
of Ministers, which convened a group of experts
to draft the Convention itself.
The Convention was designed to incorporate
a traditional civil liberties approach to
securing "effective political democracy",
from the strongest traditions in the United
Kingdom, France and other member states of
the fledgling Council of Europe, as said by
Guido Raimondi, President of European Court
of Human Rights:
The European system of protection of human
rights with its Court would be inconceivable
untied from democracy. In fact we have a bond
that is not only regional or geographic: a
State cannot be party to the European Convention
on Human Rights if it is not a member of the
Council of Europe; it cannot be a member State
of the Council of Europe if it does not respect
pluralist democracy, the rule of law and human
rights. So a non-democratic State could not
participate in the ECHR system: the protection
of democracy goes hand in hand with the protection
of rights.
The Convention was opened for signature on
4 November 1950 in Rome. It was ratified and
entered into force on 3 September 1953. It
is overseen and enforced by the European Court
of Human Rights in Strasbourg, and the Council
of Europe. Until procedural reforms in the
late 1990s, the Convention was also overseen
by a European Commission on Human Rights.
== Drafting ==
The Convention is drafted in broad terms,
in a similar (albeit more modern) manner to
the English Bill of Rights, the U.S. Bill
of Rights, the French Declaration of the Rights
of Man or the first part of the German Basic
law. Statements of principle are, from a legal
point of view, not determinative and require
extensive interpretation by courts to bring
out meaning in particular factual situations.
== Convention 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 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. 8 April 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. 8 April 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 cases:
Roman Zakharov v. Russia [2015] EHCR 47143/06
Malone v United Kingdom [1984] ECHR 10, (1984)
7 EHRR 14
=== 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 judiciaryRelevant 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 lawIn 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 EuropeAs 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.
== Convention protocols ==
As of January 2010, 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 provides for the right to the peaceful
enjoyment of one's possessions. The European
Court of Human Rights acknowledged a violation
of the fair balance between the demands of
the general interest of the community and
the requirements of the protection of the
individual's fundamental rights, also, in
the uncertainty – for the owner – about
the future of the property, and in the absence
of an allowance.
==== Article 2 – education ====
Article 2 provides for the right not to be
denied an education and the 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 Şahin v. Turkey the Court ruled that:
it would be hard to imagine that institutions
of higher education existing at a given time
do not come within the scope of the first
sentence of Article 2 of Protocol No 1. Although
that Article does not impose a duty on the
Contracting States to set up institutions
of higher education, any State doing so will
be under an obligation to afford an effective
right of access to them. In a democratic society,
the right to education, which is indispensable
to the furtherance of human rights, plays
such a fundamental role that a restrictive
interpretation of the first sentence of Article
2 of Protocol No. 1 would not be consistent
with the aim or purpose of that provision.
==== 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
361
=== Protocol 4 – civil imprisonment, free
movement, expulsion ===
Article 1 prohibits the imprisonment of people
for inability to fulfil a contract. Article
2 provides for a 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 his or her 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 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 procedures
for 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 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 (As of March 2018) been ratified
by 20 member states. Several member states—Bulgaria,
Denmark, France, Lithuania, Monaco, Poland,
Sweden, Switzerland, and the United Kingdom—have
not signed the protocol.The United Kingdom
government has declined to sign Protocol 12
on the basis that they believe the wording
of protocol is too wide and would result in
a flood of new cases testing the extent of
the new provision. They believe that the phrase
"rights set forth by law" might include international
conventions to which the UK is not a party,
and would result in incorporation of these
instruments by stealth. It has been suggested
that the protocol is therefore in a catch-22,
since the UK will decline to either sign or
ratify the protocol until the European Court
of Human Rights has addressed the meaning
of the provision, while the court is hindered
in doing so by the lack of applications to
the court concerning the protocol caused by
the decisions of Europe's most populous states—including
the UK—not to ratify the protocol. The UK
government, nevertheless, "agrees in principle
that the ECHR should contain a provision against
discrimination that is free-standing and not
parasitic on the other Convention rights".
The first judgment that found a violation
of Protocol No. 12, Sejdić and Finci v. Bosnia
and Herzegovina, was delivered in 2009.
=== 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 accession to
the Convention. The protocol has been ratified
by every Council of Europe member state, Russia
being last in February 2010. It entered into
force on 1 June 2010.A provisional Protocol
14bis had been opened for signature in 2009.
Pending the ratification of Protocol 14 itself,
14bis was devised to allow the Court to implement
revised procedures in respect of the states
which have ratified it. It allowed single
judges to reject manifestly inadmissible applications
made against the states that have ratified
the protocol. It also extended the competence
of three-judge chambers to declare applications
made against those states admissible and to
decide on their merits where there already
is a well-established case law of the Court.
Now that all Council of Europe member states
have ratified Protocol 14, Protocol 14bis
has lost its raison d'être and according
to its own terms ceased to have any effect
when Protocol 14 entered into force on 1 June
2010.
== See also ==
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
== Notes
