THE EUROPEAN CONVENTION ON HUMAN RIGHTS AT 60:
BUILDING ON THE PAST, LOOKING TO THE FUTURE
By Philippe Boillat,
Director General of Human Rights and Legal Affairs of the Council of Europe
The basis of democratic states is the law. The essence of law is freedom, since it is
only freedom that defines the conditions that allow people to live together as free
individuals. For this reason, an agreement on what comprises human rights and
fundamental freedoms may even be the basis for a European constitution1.
A Convention born in adversity
Europe in 1950 was not the Europe of today. The Second World War, the most bloody
and destructive ever, had left Europe in ruins. Economic activity was severely
disrupted, societies profoundly disturbed and political institutions fragile. The
Nuremberg trials of Nazi war criminals, charged with the most appalling war crimes,
genocide and crimes against humanity, had recently concluded; memories of these
unprecedented atrocities, as well as of countless lesser instances of brutality, betrayal
and collaboration across the continent, remained painfully fresh. The Allied coalition
between western powers and the Soviet Union had broken down, replaced by an “Iron
Curtain” separating western from central and eastern Europe, with Germany divided
into a democratic West and a communist East.
Against this grim background, visionary politicians came together to build the
foundations of a new Europe, determined to prevent another catastrophe and realising
that the best way to do so was to strengthen freedom and democracy and protect them
against repression and extremism. At the Hague Congress of 1948, western European
leaders supported the proposal for a Council of Europe, adopting a “Message to
Europeans” at the final plenary session which declared, amongst other things, that:
“2. We desire a Charter of Human Rights guaranteeing liberty of thought,
assembly and expression as well as the right to form a political opposition;
3. We desire a Court of Justice with adequate sanctions for the implementation
of this Charter”.
The following year, the Council of Europe was established by the Treaty of London
between Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands,
Norway, Sweden and the United Kingdom (Greece and Turkey joined later that year
and Iceland and Germany the year after). By its founding Statute, the organisation’s
aim was (and still is) “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”; to this end, a member
State “must accept the principles of the rule of law and of the enjoyment by all
persons within its jurisdiction of human rights and fundamental freedoms, and
collaborate sincerely and effectively in the realisation of the aim of the Council”.
1
Declaration made by the Federal Republic of Germany when signing the Convention for the
Protection of Human Rights and Fundamental Freedoms in Rome on 4 November 1950.
In 1948, the new United Nations had adopted the Universal Declaration of Human
Rights. One of the first acts of the Council of Europe was to establish a regional
system for protecting certain of these rights within its member States. Based on a draft
prepared by the organisation’s Consultative Assembly, the European Convention on
Human Rights (“the Convention”) was opened for signature in Rome on 4 November
1950 and entered into force on 3 September 1953.
An instrument of unique importance
The Convention did not, of course, mark the birth of human rights. The development
of international human rights mechanisms had, however, been greatly stimulated in
response to the wars, persecutions and repressions of the first half of the twentieth
century. US President Franklin D. Roosevelt, in his 1941 “Four Freedoms” speech to
Congress, had put the defence of liberty and democracy at the heart of the Allies’ war
aims. These same four freedoms – of speech and expression, of worship, from want
and from fear – were an inspiration for (and mentioned in the preamble of) the 1948
Universal Declaration. Reference to the Universal Declaration can in turn be found in
the preamble of the Convention.
The Convention’s importance lies not only in the scope of the fundamental rights that
it protects. More particularly, its importance resides in the unique way in which it
ensures protection of those rights. Firstly, the Convention’s provisions are binding on
the States parties as a matter of international law; and secondly, States’ fulfilment of
these obligations is supervised by an international control system.
Originally, the control system was composed of three bodies: the European
Commission of Human Rights, the European Court of Human Rights and the
Committee of Ministers of the Council of Europe. All applications lodged by
individual applicants and States Parties were first examined by the Commission,
which ruled on their admissibility. If a complaint was declared admissible, and no
friendly settlement was subsequently reached between the parties, the Commission
drew up a report establishing the facts and expressing a non-binding opinion on the
merits. The Commission and/or the respondent State could then refer the case to the
Court for a final, binding adjudication. If the case was not referred to the Court, it was
decided by the Committee of Ministers, an essentially political body.
The central component of this system, responsible for resolving the most contentious
cases, was the European Court of Human Rights. The Court began functioning in
1959, when the then-Consultative Assembly elected the Court’s first members and it
held its first hearing. Its first judgments were delivered in 1960/61 in the case of
Lawless v. Ireland2, concerning detention without trial under anti-terrorism legislation
– an issue still relevant today.
The control system has undergone several structural and procedural reforms over the
past 60 years. In 1963, Protocol No. 2 gave the Court competence to give advisory
opinions on legal questions relating to the interpretation of the Convention and its
protocols to the Committee of Ministers on request. Protocol No. 8 of 1985 allowed
2
App. no. 332/57, judgments of 14 November 1960, 7 April 1961 and 1 July 1961.
2
the Commission to streamline its procedures and increase its efficiency by setting up
chambers for straightforward cases and committees for applications that could be
easily ruled inadmissible or struck from the list. Protocol No. 9 of 1990 extended to
individual applicants the right to request the Court to deal with the case. Protocol No.
10 of 1992 reduced the majority required for the Committee of Ministers to find a
violation in cases not referred to the Court from two-thirds to a simple majority.
The 1948 Hague Congress had also adopted a Resolution stating, amongst other
things, that “any citizen of the [member States] shall have redress before the Court, at
any time and with the least possible delay, of any violation of his rights as formulated
in [the Convention].” Under the original text of the Convention, however, private
individuals or non-governmental organisations could only make applications if the
State concerned had accepted the Commission’s competence to hear them and could
only be decided by the Court if the State had also recognised the Court’s jurisdiction.
Since the entry into force of Protocol No. 11 on 1 November 1998, all individual
applicants have been entitled to submit their cases directly to the Court, which, as a
now full-time body, has replaced the former two-tier system of the Commission and
part-time Court. This has resulted in an entirely judicial system, with the Committee
of Ministers now responsible only for ensuring that respondent States execute the
Court’s judgments against them – although this in itself is an important and
complicated task.
A Europe without dividing lines
Work towards Protocol No. 11 had been underway since the 1985 Vienna Conference
and had overlapped with a period of momentous change in Europe. Since the fall of
the Berlin Wall in 1989, the membership of the Council of Europe has enlarged to
include all the states of Europe except Belarus.
The Convention, although not in itself a “European constitution,” now plays a central
role “as a constitutional instrument of European public order on which the democratic
stability of the Continent depends3”. It has been incorporated into the legal orders of
all the Council of Europe’s member States, with more or less direct effect; in many,
its provisions have constitutional status. It is a remarkable fact that this single text can
thus be applicable in all 47 States parties, with their very different legal systems.
A living and evolving instrument
The fact that the wording of its rights has remained the same since 1950 does not
mean that Convention must be interpreted and applied in the same way today as
60 years ago.
The Court is required to interpret the Convention not in abstracto but rather in the
context of the real-life factual situations found in the cases before it. In addressing
these situations and the evidence presented during proceedings, the Court can ensure
3
Foreword of the Secretary General of the Council of Europe to the European Ministerial Conference
on Human Rights, held for the 50th Anniversary of the Convention at Rome, 3-4 November 2000
3
that the standards of protection afforded by the Convention evolve in line with social
attitudes and legal standards both within and across the States parties.
In 1978, the Court delivered judgment in the case of Tyrer v. the United Kingdom,
which concerned the use of corporal punishment of juveniles as a criminal penalty on
the Isle of Man. Recalling that “the Convention is a living instrument which … must
be interpreted in the light of present-day conditions”, the Court stated that it “cannot
but be influenced by the developments and commonly accepted standards in the penal
policy of the member States of the Council of Europe in this field.” In rejecting the
argument that local requirements justified the use of corporal punishment, the Court
noted that “in the great majority of the member States of the Council of Europe,
judicial corporal punishment is not, it appears, used and, indeed, in some of them, has
never existed in modern times” and that “historically, geographically and culturally,
the [Isle of Man] has always been included in the European family of nations and
must be regarded as sharing fully that ‘common heritage of political traditions, ideals,
freedom and the rule of law’ to which the Preamble to the Convention refers.”
The “living instrument” approach to interpretation has even led the Court to reverse
its own previous case law in response to developments in social and legal
circumstances. In Christine Goodwin v. the United Kingdom4, the post-operative
transsexual applicant complained that the authorities’ refusal to officially recognise
her new gender violated her right to respect for her private life. In previous cases, the
Court had found that such a refusal was justified within the domestic authorities’
margin of appreciation. In Goodwin, however, it reviewed and reversed this position,
referring to “the clear and uncontested evidence of a continuing international trend in
favour not only of increased social acceptance of transsexuals but of legal recognition
of the new sexual identity of post-operative transsexuals.”
The scope of protection provided by the Convention has also been expanded by the
adoption of additional protocols by the States Parties. These include the 1952 Protocol
No. 1, protecting property rights, the right to education and the right to free elections;
the 1963 Protocol No. 4, prohibiting imprisonment for debt, the expulsion of nationals
and the collective expulsion of aliens and protecting freedom of movement; the 1984
Protocol No. 7, setting out procedural safeguards relating to expulsion of aliens, rights
of appeal in criminal matters, to compensation for wrongful conviction and not to be
tried or punished twice and equality between spouses; and the 2000 Protocol No. 12,
establishing a general prohibition of discrimination.
Perhaps the most politically significant of these protocols have been the 1983 Protocol
No. 6, abolishing the death penalty in peace-time, and the 2002 Protocol No. 13,
abolishing the death penalty in all circumstances. As a result of the Council of
Europe’s initiatives in this area, its member States now constitute a death-penalty free
zone, with all having ratified Protocol No. 6 except Russia, which has signed the
Protocol and where, as a result, there is a recently reconfirmed moratorium in force;
42 of the 47 member States have also ratified Protocol No. 13.
4
App. no. 28957/95, Grand Chamber judgment of 11 July 2002.
4
A progressive instrument
Over the past six decades, the Court has addressed an enormous range of legal and
factual issues. The following, to mention but a very few, illustrate the role of the
Convention, as interpreted and applied by the Court, as a unique and powerful
instrument for promoting civilised values and democratic progress in such a way as to
improve the lives of millions of people in Europe.
In the case of Marckx v. Belgium5, the applicant, an unmarried mother, complained
that Belgian law required her to institute legal proceedings to obtain legal recognition
of her maternal relationship with her daughter, in violation of the right to respect for
family life. The Court, finding that there had indeed been such a violation, recalled
that, although the object of Article 8 was “‘essentially that of protecting the individual
against arbitrary interference by the public authorities, … it does not merely compel
the State to abstain from such interference; in addition to this primarily negative
undertaking, there may be positive obligations inherent in an effective ‘respect’ for
family life.” Adverse differential treatment of unmarried mothers may not have been
unusual when the Convention was drafted, but as times changed, so did the Court find
ways to ensure that the Convention reflected new attitudes and realities. As a result,
the law in Belgium was changed.
The Court also ensures that domestic authorities take into account only relevant
considerations when justifying interferences with qualified rights. In the case of
Dudgeon v. the United Kingdom6, the homosexual applicant complained that the
existence in Northern Ireland of laws criminalising certain homosexual acts between
consenting adult males, and thus the persistent threat of his being prosecuted for
engaging in such acts, violated his right to respect for his private life. The Court, in
finding this interference with his rights to be unjustified, noted that changing social
attitudes and the wide-spread de-criminalisation of homosexual acts in Council of
Europe member States, as well as the fact that the Northern Irish authorities had in
recent years refrained from prosecuting those over 21 years of age, without apparently
undermining moral standards or outraging public opinion. As a result of Dudgeon –
and subsequent Court judgments concerning similar laws in Ireland and Cyprus –
homosexual acts between consenting adults in private were decriminalised.
In Smith & Grady v. the United Kingdom7, the Court found a prohibition on
homosexuals serving in the armed forces to violate the right to respect for private life,
stating that “a predisposed bias on the part of a heterosexual majority against a
homosexual minority… cannot, of [itself], be considered by the Court to amount to
sufficient justification for the interferences with the applicants’ rights” and once again
noting “the widespread and consistently developing views and associated legal
changes to the domestic laws of” other member States. The UK subsequently revised
its policy on the issue in line with the Court’s judgment.
5
App. no. 6833/74, judgment of 13 June 1979.
App. no. 7525/76, judgment of 24 February 1982.
7
Apps. nos. 33985/96 & 33986/96, judgment of 27 September 1999; see also Lustig-Prean & Beckett
v. the United Kingdom, apps. nos. 31417/96 & 32377/96, judgment of 27 September 1999.
6
5
The requirement that the Convention’s provisions be interpreted so as to give practical
and effective protection to individuals has been applied in other situations to give rise
to positive obligations on States parties. In Airey v. Ireland8, involving a victim of
domestic violence who was unable to afford the cost of legal representation necessary
to pursue separation proceedings before the High Court, the Court recalled that “[t]he
Convention is intended to guarantee not rights that are theoretical or illusory but rights
that are practical and effective.” In finding a violation of the right of access to a court
implicit in the right to fair trial protected by Article 6 of the Convention, the Court
stated that “Article 6 para. 1 may sometimes compel the State to provide for the
assistance of a lawyer when such assistance proves indispensable for an effective
access to court,” even if the explicit requirement to provide legal aid set out in
paragraph 3(c) related only to criminal proceedings.
Such positive obligations have also been found by the Court in relation to e.g.
freedom of assembly, with States being required “to take reasonable and appropriate
measures to enable lawful demonstrations to proceed peacefully” by protecting them
from violent disruption by counter-demonstrators9; freedom of expression, the Court
stating that “[g]enuine, effective exercise of this freedom does not depend merely on
the State’s duty not to interfere, but may require positive measures of protection, even
in the sphere of relations between individuals,” such that the State had a positive
obligation to protect the staff of a newspaper against unlawful acts and violence10; the
right to life, the Court noting that “a general legal prohibition of arbitrary killing by
the agents of the State would be ineffective, in practice, if there existed no procedure
for reviewing the use of legal force by State authorities11.” In other Article 2 cases, the
Court has found a positive obligation to investigate and provide a satisfactory and
convincing explanation of deaths of persons in custody12; it has also found that the
authorities have a positive obligation to take preventive operational measures to
protect an individual whose life is at risk from the criminal acts of another individual,
for instance as a result of domestic violence13.
In Opuz v. Turkey14, the Court spelt out that the positive obligation to protect the right
to life in the context of domestic violence is violated if "the authorities knew or ought
to have known at the time of the existence of a real and immediate risk to the life of
an identified individual from the criminal acts of a third party" and if they "failed to
take measures within the scope of their powers, which, judged reasonably, might have
been expected to avoid that risk". Consequently, States have an obligation to display
due diligence in protecting the right to life.
In a recent landmark case concerning human trafficking, the Court found Cyprus to
have violated, amongst others, its positive obligations under Article 4 (the prohibition
of slavery and forced labour) to put in place an appropriate legislative and
administrative framework to prevent trafficking and sexual exploitation and to protect
8
App. no. 6289/73, judgment of 9 October 1979.
See Plattform “Ärzte für das Leben” v. Austria, App. no. 10126/82, judgment of 21 June 1988.
10
See Özgür Gündem v. Turkey, App. no. 23144/93, judgment of 16 March 2000.
11
See McCann & otrs v. the United Kingdom, 18984/91, Grand Chamber judgment of 27 September
1995.
12
See Anguelova v. Bulgaria, App. no. 38361/97, judgment of 13 June 2002.
13
See Opuz v. Turkey, app. no. 33401/02, judgment of 9 June 2009.
14
See previous footnote.
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the victim; it also found Russia, the victim’s country or origin, to have violated its
positive obligation to investigate potential trafficking15.
The Court’s judgments against particular states may contain statements of general
principle concerning interpretation of the Convention with possible consequences for
the legal orders of other states. The Netherlands, for example, has responded to
judgments against other states, such as Marckx v. Belgium and Goodwin v. the United
Kingdom16, by adapting its own domestic law or practice. This practice is not as
widespread as it should be, partly because of resource limitations and the fact that
judgments are only issued in English and/ or French (the official languages of the
Council of Europe), but its wider use would go a long way to enhancing the impact of
the Convention, ensuring its effective implementation in the member States and
reducing the number of cases requiring adjudication in Strasbourg.
Ultimately, the interpretation of the Convention across the member States is assured
by the Court, which ensures the necessary flexibility of application by allowing a
certain “margin of appreciation.” For the so-called “qualified” rights17, whose
protection may be subject to limitations to take account of competing public interests,
the Court recognises that national authorities are best-placed to assess the situation
prevailing at national level and the extent to which interference with the right may be
justified. States thus have a certain freedom, always subject to scrutiny by the Court,
to determine the correct balance in their particular national circumstances between
respecting individual rights and pursuing general public interests. This means that
what might be justified in the particular circumstances of one state or at one point in
time may not be justified, and thus amount to a violation, in another state or at another
time. However, it is always the Court itself that decides, in individual cases, whether a
margin of appreciation should be granted and if so, whether the State has transgressed
the limits.
Part of a complex and sophisticated system
The Convention is not an isolated instrument but a treaty drafted within the Council of
Europe in the pursuit of the Organisation’s statutory aims, as noted in its preamble. It
gives important roles to the Committee of Ministers (to supervise the execution of
Court judgments), the Parliamentary Assembly (to elect judges) and the Secretary
General (to conduct inquiries of States parties as to their implementation of
Convention provisions), as well as to the Commissioner for Human Rights (to
intervene in proceedings before the Court as of right), once Protocol No. 14 comes
into force.
Convention standards, as interpreted by the Court, form the foundations of the human
rights standard-setting work of the Council of Europe; in turn, the Court’s judgments
refer to other Council of Europe human rights instruments as evidence of the common
15
See Rantsev v. Cyprus & Russia, app. no. 25965/04, judgment of 7 January 2010.
App. no. 17488/90, Grand Chamber judgment of 27 March 1996; a case concerning protection of
journalistic sources.
17
i.e. those that make conditional allowance for “interference,” “limitations,” “formalities, conditions,
restrictions or penalties” (to use some of the expressions found in the Convention and its Protocols):
see, in particular, Articles 8-11 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol
No. 4.
16
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positions of member States on specific issues. There is a symbiotic, interdependent
relationship between the Court and the rest of the Council of Europe.
The growing scope and complexity of human rights and the ever-increasing
expectations for their effective protection have led the Council of Europe to establish
a wide range of monitoring or advisory mechanisms to complement the Convention
and the Court. The European Committee for the Prevention of Torture, set up by the
Convention of the same name, visits places of detention to ensure humane treatment
of those held within them, reports its findings and makes statements of general
principle concerning the appropriate standards. The Framework Convention for the
Protection of National Minorities contains normative provisions and provides for an
independent Advisory Committee to report on States fulfilment of their obligations.
The European Commission against Racism and Intolerance reviews the situation in
the member States and assesses their efforts to combat racism in accordance with
Council of Europe standards. The European Commission for Democracy through Law
consists of high-level legal experts and advises States on questions of international,
constitutional and human rights law.
The Convention system itself is thus but an integral part – albeit the central and most
important part – of a wider Council of Europe human rights protection system.
A Convention for the future
Even before Protocol No. 11, the Strasbourg control mechanism was feeling the strain
of an increasing number of applications. The enlargement of the Council of Europe
has had a dramatic impact on this: many more individuals now have the right to bring
complaints before the Court (800 million inhabitants in the 47 States Parties), and
many of the States have yet to fully and effectively incorporate Convention standards
or provide domestic remedies for violations. As awareness of human rights and the
Court has increased, not only in the new member States, there has been an exponential
growth in the number of applications.
Almost as soon as Protocol No. 11 came into force, therefore, work began on a
“reform of the reform.” This led, in 2004, to the adoption of Protocol No. 14, which
amongst other things reformed the procedures for dealing with inadmissible
applications and with matters that had already been the subject of Court judgments
(“repetitive” cases). It is hoped that these reforms will significantly increase the
Court’s case-processing capacity.
The Court itself has developed innovative approaches to addressing some of the
greatest challenges, notably repetitive cases arising from systemic problems at
national level. In the case of Broniowski v. Poland18, concerning compensation paid to
persons who had lost property when the country’s border was changed after the
Second World War, the Court developed the so-called “pilot judgment procedure.”
This procedure involved a finding of a violation by the Court, following which the
applicant and the respondent State reached agreement on a satisfactory remedy. In the
meantime, all other applications arising from the same situation were adjourned. Once
the friendly settlement and had been approved by the Court and assessed in practice,
18
App. no. 31443/96, Grand Chamber judgments of 22 June 2004 and 28 September 2005.
8
the remaining applications were struck out of the Court’s list and the applicants
advised to have recourse to the new domestic remedy. In this way, the Court was able
to resolve hundreds of applications and avoid the risk of being confronted with
potentially thousands more. The pilot judgment procedure and variants on it have
considerable potential to increase the Court’s efficiency in addressing systemic
problems and dealing with the associated repetitive cases.
At the time of writing, Protocol No. 14 awaits ratification by the Russian Federation
before it can enter into force. Although Russian ratification now appears imminent,
the entry into force of Protocol No. 14 and developments such as the pilot judgment
procedure by themselves will not be enough fully to resolve the Court’s problems.
There are now almost 120,000 applications pending before it and no sign that the rate
of increase in new applications will diminish. Even if over 90% of applications are
inadmissible and some 50% of the admissible applications concern repetitive cases, it
is clear that further reforms and new measures, at all levels of the Convention system,
are needed to keep the Court afloat.
This February, the Swiss Chairmanship of the Committee of Ministers will hold a
Ministerial Conference on the future of the Court at Interlaken, to reaffirm the States
parties’ commitment to human rights and to the Convention system, to identify
potential measures for reform and to give strong political impetus to define and
implement such measures. I am confident that Interlaken will open a new chapter in
the history of the Convention system.
We are also looking forward to the accession of the European Union to the
Convention, to which the EU committed itself in the Lisbon Treaty. Outside Belarus,
the European Union, in its exercise of transferred powers, is the only public authority
in Europe that is not bound by the Convention or under the Court’s juridiction,
although the case law of the European Court of Justice and the EU’s Charter of
Fundamental Rights are strongly inspired by the Convention, as interpreted by the
Strasbourg Court. EU accession will help guarantee the cohesion of the European
legal space and ensure consistent standards of human rights protection throughout
Europe, without dividing lines.
Europe today, thankfully, bears no comparison to that of 1950. The Convention, a
unique and living instrument, has played a key role in achieving this and must
continue to develop and contribute to ever-higher standards of democracy, human
rights and the rule of law for the next 60 years and beyond.
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