HUMAN RIGHTS EDUCATION FOR
LEGAL PROFESSIONALS
Key concepts
of the European Convention on Human Rights
©Council of Europe
Last updated: 06.09.2007
Key concepts on the European Convention on Human Rights
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Table of Contents
1. Autonomous concepts ---------------------------------------------------------------------------- 5
1.1 Civil right --------------------------------------------------------------------------------------------- 5
1.1.1 Civil rights and obligations ------------------------------------------------------------------------------------ 5
1.1.2 Matters which have been held to be civil ------------------------------------------------------------------- 6
1.1.3 Matters which have been held not to be civil --------------------------------------------------------------- 8
1.1.4 Administrative decisions --------------------------------------------------------------------------------------- 9
1.2 Correspondence------------------------------------------------------------------------------------- 10
1.2.1 What constitutes correspondence? ------------------------------------------------------------------------- 10
1.2.2 Does the content of the communication matter? --------------------------------------------------------- 10
1.2.3 Is the identity of the sender or the recipient matter? ---------------------------------------------------- 10
1.3 Criminal charge: ‘charge’ ------------------------------------------------------------------------ 11
1.4 Criminal charge: ‘criminal’ ---------------------------------------------------------------------- 12
1.5 Degrading treatment ------------------------------------------------------------------------------- 13
1.6 Deprivation of liberty ------------------------------------------------------------------------------ 13
What constitutes a deprivation of liberty? ----------------------------------------------------------------------- 13
1.6.1 “Arrest” and “detention” ------------------------------------------------------------------------------------- 13
1.6.2 Elements to establish that detention exists ---------------------------------------------------------------- 14
1.6.3 The nature of the confinement ------------------------------------------------------------------------------ 14
1.6.4 The status of the person affected --------------------------------------------------------------------------- 15
1.6.5 Acts by private individuals ---------------------------------------------------------------------------------- 16
1.6.6 Action overseas ------------------------------------------------------------------------------------------------ 17
1.7 Determination (of civil rights and obligations) ----------------------------------------------- 18
1.8 Equality of arms ------------------------------------------------------------------------------------ 19
1.9 Family ------------------------------------------------------------------------------------------------ 20
1.9.1 What constitutes family life? -------------------------------------------------------------------------------- 20
1.9.2 The family based on marriage ------------------------------------------------------------------------------- 21
1.9.3 Is marriage necessary to enjoy family life? --------------------------------------------------------------- 21
1.9.4 Is cohabitation necessary to enjoy family life?---------------------------------------------- 21
1.9.5 Can family life exist without cohabitation or marriage? ------------------------------------------------ 21
1.9.6 Does Article 8 apply if the establishment of family life is frustrated? ------------------------------- 22
1.9.7 Can family life exist without a blood tie? ----------------------------------------------------------------- 22
1.9.8 Is the blood tie in itself sufficient? ------------------------------------------------------------------------- 23
1.9.9 Can family life ever come to an end? --------------------------------------------------------------------- 24
1.10 Home ------------------------------------------------------------------------------------------------ 24
1.10.1 Is ownership sufficient to constitute a home? ----------------------------------------------------------- 24
1.10.2 Do business premises constitute a home? --------------------------------------------------------------- 25
1.11 Inhuman treatment ------------------------------------------------------------------------------- 25
1.12 Private life ------------------------------------------------------------------------------------------ 26
1.12.1 What relationships constitute private life? -------------------------------------------------------------- 26
1.12.1.1 Relationships which fall outside the scope of family life ---------------------------------------- 26
1.12.1.2 To what extend do sexual activities fall within the scope of private life? -------------------- 26
1.12.1.3 To what extend do social activities fall within the scope of private life? --------------------- 27
1.12.1.4 Do business relationships concern private life? --------------------------------------------------- 27
1.12.2 What activities or measure concern private life? ------------------------------------------------------- 27
1.12.2.1 Does telephone tapping always concern private life? -------------------------------------------- 27
1.12.2.2 Will the collection of personal data by the State concern private life? ------------------------ 28
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1.12.2.3 Accessing personal data ------------------------------------------------------------------------------- 28
1.12.2.4 Does the regulation of names concern private life? ---------------------------------------------- 28
1.12.2.5 Does invasion of the press concern private life? -------------------------------------------------- 29
1.12.3 The determination of legal ties ---------------------------------------------------------------------------- 29
1.12.3.1 Paternity proceedings ---------------------------------------------------------------------------------- 29
1.12.3.2 Transsexuals --------------------------------------------------------------------------------------------- 29
1.13 Property or possessions -------------------------------------------------------------------------- 30
1.14 Security of the person ---------------------------------------------------------------------------- 31
1.15 Torture ---------------------------------------------------------------------------------------------- 31
1.16 Victim (Article 34 ECHR) ----------------------------------------------------------------------- 32
2. Hierarchy of rights ------------------------------------------------------------------------------ 35
2.1 Absolute rights -------------------------------------------------------------------------------------- 35
2.2 Limited rights --------------------------------------------------------------------------------------- 35
2.2.1 Rule of strict interpretation of limitations clauses ------------------------------------------------------ 35
2.2.2 The interpretation of the phrase “in accordance with law/prescribed by law” ---------------------- 36
2.2.3 The interpretation of the phrase “necessary in a democratic society” -------------------------------- 37
2.3 Substantively qualified rights -------------------------------------------------------------------- 38
2.4 Rights relating to the administration of justice ----------------------------------------------- 39
2.5 Rights with inherent restrictions ---------------------------------------------------------------- 39
3. Key concepts-------------------------------------------------------------------------------------- 39
3.1 Association ------------------------------------------------------------------------------------------- 39
3.2 Democratic values ---------------------------------------------------------------------------------- 39
3.3 Effectiveness ----------------------------------------------------------------------------------------- 40
3.4 Fourth instance ------------------------------------------------------------------------------------- 42
3.5 Horizontal effect ------------------------------------------------------------------------------------ 42
3.6 Incompatibilities ------------------------------------------------------------------------------------ 42
3.6.1 Incompatible ratione temporis ------------------------------------------------------------------------------ 42
3.6.2 Incompatible ratione loci ------------------------------------------------------------------------------------- 43
3.6.3 Incompatible ratione personae ------------------------------------------------------------------------------ 43
3.6.4 Incompatible ratione materiae ------------------------------------------------------------------------------- 43
3.7 Just satisfaction ------------------------------------------------------------------------------------- 43
3.8 Law – quality of law ------------------------------------------------------------------------------- 44
3.9 Living instrument ---------------------------------------------------------------------------------- 44
3.10 Margin of appreciation -------------------------------------------------------------------------- 45
3.11 Necessary (in a democratic society)------------------------------------------------------------ 46
3.12 Penalty (Article 7)--------------------------------------------------------------------------------- 47
3.13 Physical and moral integrity -------------------------------------------------------------------- 47
3.13.1 Will all interference with physical integrity concern private life?----------------------------------- 47
3.13.2 Does compulsory medical treatment concern private life? ------------------------------------------- 48
3.13.3 Do safety measures imposed by the State concern private life? ------------------------------------- 48
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3.14 Positive obligations ------------------------------------------------------------------------------- 48
3.14.1 Horizontal effect --------------------------------------------------------------------------------------------- 49
3.15 (Inherent) Procedural safeguards-------------------------------------------------------------- 49
The principle of effectiveness and procedural guarantees-------------------------------------------------- 49
3.15.1Procedural guarantees expressly provided by the text of the Convention -------------------------- 49
3.15.2 Procedural guarantees recognised in the caselaw of the Court as inherent in substantive rights
--------------------------------------------------------------------------------------------------------------------------- 50
3.15.3 Procedural safeguards at international level ------------------------------------------------------------- 50
3.16 Proportionality ------------------------------------------------------------------------------------ 51
3.17 Rule of law ----------------------------------------------------------------------------------------- 51
3.18 Subsidiarity ---------------------------------------------------------------------------------------- 51
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1. Autonomous concepts
Autonomous concepts are related to the way the Convention is interpreted by the
European Court of Human Rights. When interpreting the Convention the Court will
give the rights contained a purposive interpretation. It will not give the Convention a
literal interpretation and is not heavy relying on the actual text of the Convention.
The primary object and purpose of the Convention is the protection of individual
rights from infringement by the contracting states.
In order to give effect to the object and purpose of the Convention the Court has
adopted several interpretive principles. In addition to the dynamic interpretation
(interpretation in the light of present-day conditions), the Court has said that rights
should be interpreted so that they are “practical and effective” and not “theoretical
and illusory”, that rights should be interpreted widely and exceptions, or restrictions,
narrowly, and that there is an autonomous (or independent) meaning of certain
Convention terms - this is necessary to ensure uniformity and to prevent the
Convention’s purpose being frustrated; it prevents provisions of the Convention
from being subordinated to the interpretation of a term or principle in domestic law
of the contracting parties.
1.1 Civil right
1.1.1 Civil rights and obligations
The term ‘civil rights and obligations’ has an autonomous meaning and is thus
not depending on the national law of a State. Decisive is the contents of the right
and whether the outcome of the proceedings is decisive for private rights and
obligations. Below you will find examples of rights/proceedings that do or do not
fall within the scope of Article 6.
CASES
Konig v the Federal Republic of Germany (1978) – Whether or not a right is to be
regarded as civil within the meaning of this expression in the Convention must be
determined by reference to the substantive content and effect of the right –and
not its legal classification- under the domestic law. It follows that the concept of
civil rights and obligations cannot be determined simply by reference to the
domestic law of the respondent state.
Ringeisen v Austria (16 July 1973, par. 94) – The character of the legislation
which governs how a matter is to be determined (civil, commercial, administrative
law, etc) and that of the authority which is invested with jurisdiction in the matter
(ordinary court, administrative body, etc) are of little consequence. Disputes over
civil rights and obligations cover all the proceedings the result of which is
decisive for such rights and obligations. The intrinsic nature of the rights and
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obligations under the dispute is of relevance; the private nature of the rights and
obligations makes the dispute civil.
Procola v Luxembourg (1995) – It is a civil dispute where an action is pecuniary
in nature and is founded on an alleged infringement of rights which are likewise
pecuniary rights, notwithstanding the origin of the dispute and the fact that
administrative courts have jurisdiction.
Benthem v. the Netherlands (23 October 1985, para.35, autonomous meaning),
1.1.2 Matters which have been held to be civil
Cases
Pretto v Italy (1984) – The rights of private persons in their relations between
themselves in employment and property.
Ringeisen v Austria (16 July 1973) – The rights of private persons in their
relations between themselves in contract law.
Pudas v Sweden (1987) – The right to carry on a commercial activity.
Axen v the Federal Republic of Germany (1983) – The rights of private persons
in their relations between themselves in law of tort.
Airey v Ireland (1979) – The rights of private persons in their relations between
themselves in family law.
Olsson v Sweden (1989) – Disputes/proceedings regarding placing children in
care.
W v the United Kingdom (1987) – Disputes/proceedings regarding parental
access to children.
Keegan v Ireland (1994) – Disputes/proceedings regarding adoption
Eriksson v Sweden (2000) – Disputes/proceedings regarding fostering
Schuler-Zgraggen v Switzerland (1993) – The right to social security benefits.
Schouten and Meldrum v the Netherlands (1995) – Disputes/proceedings
regarding the obligation to pay the contributions under a social security scheme.
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National & Provincial Building Society and others v the United Kingdom (1998) –
The right to recover money paid in tax.
British American Tobacco v the Netherlands (1996) – Disputes over ownership of
a patent.
Sporrong and Lonnroth v Sweden (1983) – Disputes/proceedings regarding
expropriation, consolidation, planning proceedings and real estate permits which
direct consequences for the right of ownership.
Oerlemans v the Netherlands (1991) – Disputes/proceedings whose outcome
have impact upon the enjoyment of property.
Tre Traktorer v Sweden (1991) – Disputes/proceedings over the withdrawal of
alcohol license from a restaurant.
Konig v the Federal Republic of Germany (1978) – Disputes/proceedings over a
license to run a medical clinic
Jordebro Foundation v Sweden (1987) – Disputes/proceedings over granting
permission to run a private school.
Philis v Greece (1991) – Disputes/proceedings against public administration
concerning contracts.
Editions Periscope v France (1992) – Disputes/proceedings against public
administration concerning damages in administrative proceedings.
Moreira de Azevedo v Portugal (1990) – Disputes/proceedings against public
administration concerning damages in criminal proceeding.
Giorgiadis v Greece (1997) – Disputes/proceedings regarding claims for
compensation for unlawful detention following acquittal in criminal proceedings.
Ruiz Mateos v Spain (1993) – Constitutional and public law proceedings only
where the outcome of these proceedings may be decisive for civil rights and
obligations.
Vilho Eskelinen and others v Finland (2007) – The Court developed the case law
of Frydlender and Pellegrin (see infra) in relation to civil servants exercising
public law functions – Article 6 will apply unless national law expressly excludes
access to court for the post or staff in question and the State can justify on
objective grounds that the exclusion is in the State’s interest.
Frydlender v France (2000) – The exception to Article 6 may not be invoked by a
State in relation to an employment dispute involving a public official who does not
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fall within the ECHR’s own meaning of civil service (on which see the Pellegrin
case infra).
Golder v the United Kingdom (1979-80) –The individual’s right to a good
reputation.
H. v France (1997) – A claim before an administrative court for negligence by a
state hospital.
1.1.3 Matters which have been held not to be civil
Cases
X v France (1992) – General taxation issues and taxation assessments.
Maaouia v France (2000) – Matters of immigration and nationality. Maaouia v.
France (5 October 2000, para. 36-41, aliens),
Nocolussi v Austria (1987) – Liability for military service.
Habsburg-Lothringen v Austria (1989) – The right to stand for public office
Neigel v France (1997) – The right of the civil servants to continue in
employment.
Pellegrin v France (1999) – Disputes between administrative authorities and
employees who occupy posts involving participation in the exercise of the powers
conferred by public law, such as the police and the armed forces (HOWEVER
note that the Court took the case law in a new direction in Vilho Eskelinen and
others see above). Pellegrin v. France (8 December 1999, para. 64-67, civil
servants)
Simpson v the United Kingdom (1986) – The right to state education.
L v Sweden (1988) – The right to state medical treatment.
Peltonen v Finland (2000) – The refusal to issue a passport.
Atkinson Crook and the Independent v the United Kingdom (1990) – The right of
the journalists to report on court proceedings.
X v the Federal Republic of Germany (1982) – Matters related to legal aid in civil
cases.
X v Austria (1979) – Patent applications.
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Nordh and others v Sweden (1990) –The decision of the state to compensate the
victims of a natural disaster.
Massa v Italy (1993) – The exception to Article 6 does not apply in a situation
where the State is not using any discretionary powers and may thus be
compared to a private law employer.
Kienast v Austria (2003) – The dispute between a landowner and the Surveyor's
Office did not concern the existence or scope of a civil right in so far as the
applicant's position as owner of the land had never been called into question.
1.1.4 Administrative decisions
To assess whether there is a ‘civil right or obligation’ the character of the right is
decisive. The mere fact that the right or obligation is governed by
administrative/public law does not change the contents and the effects of the
right.
It is neither decisive whether one of the parties involved in the proceedings is a
public authority.
As a consequence the inference by public authorities with ‘civil rights and
obligations’ should be subject to an effective judiciary control.
Cases
Albert and Le Compte v Belgium (1982) – The appeal against an administrative
decision should be heard by a judicial body that has full jurisdiction over
questions of fact and law.
W v the United Kingdom (1987) – The judicial review of a decision by a local
administrative authority restricting parents’ access to a child in care should cover
the merits and should not be limited to verifying if the authority acted legally,
reasonably and fairly.
Obermeier v Austria (1990) – The judicial review of a decision regarding the
employment should cover the merits of the case and not only the legality of the
administrative decision.
Oerlemans v the Netherlands (1991) –The judicial review of an administrative
decision restricting farming activities where the court could not annul the decision
but could award damages or grant an injunction to stop the execution of the
decision was considered to cover the merits of the case.
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Zumtobel v Austria (1993) – Review of a decision on the merits regarding the
expropriation of land for a road or for public housing could be restricted for
reasons of expediency.
Sporrong and Lonnroth v Sweden (1983) – The absence of judicial review to
challenge the time limits for the expropriation permits was a violation of the right
to fair trial.
1.2 Correspondence
The right to respect for one’s correspondence is a right to uninterrupted and
uncensored communications with others.
1.2.1 What constitutes correspondence?
While the meaning of correspondence clearly includes materials which cross by
post, the Court has also found the concept to include telephone communications
(Klass v. Germany, judgment of 6 September 1978, para. 41) and telexes. (appl.
No. 21482/93, Campbell Christie v. the United Kingdom, 27 June 1994, DR 78A,
p. 119) As the literal meaning of home has been expanded in this way, it is
anticipated that the concept will continue to be interpreted so as to keep
pace with developments in technology which may bring other methods of
communication, such as e-mail, within its sphere of protection. The appropriate
level of protection may vary with the type of communication method used
however.
1.2.2 Does the content of the communication matter?
The protection Article 8 offers relates to the means or method of communication,
rather than its content and so the State cannot argue, for example, that
telephone conversations about criminal activities fall outside the scope of
Article 8 para. 1. (A. v. France, judgment of 23 November 1993) In Halford v. the
United Kingdom (judgment of 25 June 1997) conversations by telephone,
whether business or private, were found to be covered, as was the use of an
office telephone.
1.2.3 Is the identity of the sender or the recipient matter?
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The identity of either the sender or the recipient of the correspondence will play a
part in determining what is required by Article 8. For example, the Court has
made it clear that the protection afforded to letters and other correspondence
between lawyers and their clients, particularly detained persons, is great.
Source: CoE, Human Rights handbooks No 1, The right to respect for private and
family life
1.3 Criminal charge: ‘charge’
Article 6 guarantees a fair trial in the determination of a criminal charge against a
person. What is then meant by a “criminal charge”? (see also autonomous
concept: criminal charge; ‘criminal’)
“Charge” is an autonomous concept under the Convention which applies
irrespective of the definition of a “charge” in domestic law.
In the case of Deweer v. Belgium, the Court stated that the word “charge” should
be given a substantive rather than a formal meaning, and it felt compelled to look
behind the appearances and investigate the realities of the procedure in
question. The Court then went on to state that “charge” could be defined as the
official notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence, or, where the situation of the
[suspect] has been substantially affected. (Deweer v. Belgium, 27 February
1980, par. 42,44 and 46)
In the above mentioned case, following a report that the applicant had breached
certain price regulations, a prosecutor ordered the provisional closure of his
shop. Within the meaning of Belgium law, criminal proceedings were not
instituted since the applicant accepted a settlement offer. The Court nevertheless
considered that the applicant had been under a criminal charge.
Some examples of what constitutes a “charge”:
- When a person’s arrest for a criminal offence is ordered. (Wemhoff v.
RFA, 27 June 1968)
- When a person is officially informed of the prosecution against him.
(Neumeister v. Austria, 27 June 1986)
- When authorities investigating custom offences require a person to
produce evidence and freeze his bank account. (Funke v. France, 25
February 1993)
- When a person has appointed a defense lawyer after the opening of a file
by the public prosecutor’s office following a police report against him.
(Angelucci v. Italy, 19 February 1991)
Source: CoE, Human Rights handbooks No.3, The right to a fair trial
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1.4 Criminal charge: ‘criminal’
Article 6 guarantees a fair trial in the determination of a criminal charge against a
person. What is meant by a “criminal charge”? (see also autonomous concept:
criminal charge; ‘charge’)
What is meant by “criminal charge”?
As with respect to the notion of a “civil right or obligation”, the European Court of
Human Rights takes a broad view of the notion of a “criminal charge” under
Article 6 of the Convention, applying three criteria to determine whether a
particular matter falls within its purview:
 the domestic legal classification of the offence,
 the nature of the offence,
 the nature and severity of the possible penalty (Pierre-Bloch v. France
(1997))
The Court has held that a State cannot remove an offence from the protection of
Article 6 simply by declaring the offence to be “non-punishable” (Adolf v. Austria
(1982) and Öztürk v. Germany (1984)). Where large tax surcharges are imposed
as a result of tax audits, the Court has found that the general character of the
relevant legal provisions on tax surcharges, the deterrent and punitive purposes
of the penalties and the severity of the potential and actual penalty brought the
matter within the scope of a “criminal charge” under Article 6 (Janosevic v.
Sweden (2002) and Västberga Taxi Aktiebolag and Vulic v. Sweden (2002)).
With respect to when a person is considered to be “charged” with a criminal
offence in the sense of Article 6(1), the Court has held that this transpires at the
point when the State takes “measures which carry the implication of ... an
allegation [that he or she has committed a criminal offence] and which likewise
substantially affect the situation of the suspect” (Foti and Others v. Italy (1982)).
The Convention institutions have found the “substantial effect”
The European Convention on Human Rights standard to be met by such actions
as the publication of a warrant or the search of premises or persons. On the
other hand, they have not found the standard to be met by the launching of a
police investigation, the questioning of witnesses, or other activities without direct
effect on the individual. The sentencing phase of a criminal proceeding is also
governed by Article 6. The Court thus found a violation of Article 6 where the
Secretary of State rather than the court fixed the tariff period for a convicted
prisoner (V. v. the United Kingdom (1999) and Easterbrook v. the United
Kingdom (2003)).
Source: Short Guide to the European Convention on Human Rights, Donna
Gomien, 2005
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As the Court stated in the case of Engel and others v. the Netherlands (Engel
and other v. the Netherlands, 8 June 1976, par. 81) State parties are free to
designate matters in their domestic law as criminal, disciplinary or administrative,
as long as this distinction does not in itself contravene the Convention. The
normal exercise of Convention rights, for example freedom of speech or freedom
of expression, cannot be a criminal offence.
Source: CoE, Human Rights handbooks No. 3: The right to a fair trial
1.5 Degrading treatment
Degrading treatment is that which is said to arouse in its victims feelings of fear,
anguish and inferiority, capable of humiliating and debasing them. This has also
been described as involving treatment such would lead to breaking down the
physical or moral resistance of the victim, (Ireland v. the United Kingdom, p. 66,
§167) or as driving the victim to act against his will or conscience.(Commission’s
opinion in the Greek Case, Chapter IV, p. 186)
In considering whether a punishment or treatment is “degrading” within the
meaning of Article 3, regard should be had as to whether its object is to humiliate
and debase the person concerned and whether, as far as the consequences are
concerned, it adversely affected his or her personality in a manner incompatible
with Article 3. (Ranninen v. Finland judgment of 16 December 1997, ECHR 1997VIII, p. 2821-22, §55) However, the absence of such a purpose cannot rule out a
finding of a violation of Article 3.
Source: CoE, Human Rights handbooks No. 6; The prohibition of torture
1.6 Deprivation of liberty
What constitutes a deprivation of liberty?
1.6.1 “Arrest” and “detention”
The terms arrest and detention are used interchangeably in almost all the
provisions of Article 5 and they should therefore be seen as being essentially
concerned with any measure – whatever designation is used by national law –
that has the effect of depriving a person of his or her liberty. The guarantee
afforded by the judicial supervision requirement in Article 5 is taken by the Court
to arise as soon as the initial loss of liberty has happened, and any other
approach will necessarily entail a violation of the Convention. The essential
requirement is to concentrate on what is achieved by processes and not what
they are called.
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1.6.2 Elements to establish that detention exists
It is important to be clear about what constitutes a deprivation of liberty – whether
by means of arrest or detention – and when it starts, because it is only then that
the requirements of Article 5 of the European Convention become applicable.
This might seem self-evident but it still needs to be emphasised as there can
certainly be situations where someone has been deprived of his or her liberty but
this might still not be appreciated by the persons responsible, particularly if no
physical restraint has been imposed. Identifying the moment at which liberty is
lost is especially important in the context of the criminal process on account of
the need to scrutinize both the delay before the person affected is first brought
before a judge and the overall length of any detention prior to any trial that might
take place. Elements such as the nature of the confinement involved and the
status of the person affected are essential in determining whether a particular
measure constitutes deprivation of liberty.
1.6.3 The nature of the confinement
The European Court will certainly look at the nature of the confinement.
Deprivation of liberty will most obviously have occurred where a person is being
forcibly kept in a police or prison cell but there are many other forms of
confinement which can lead to Article 5 becoming applicable. Certainly this will
be the case where, for example, a law enforcement officer – whether or not force
is actually used – makes it clear that a person either cannot leave a particular
place or is obliged to come with the officer to some other place. Thus it would
cover a person being stopped in the street or being required to stay in a police
station after having originally come there of his or her own free will. It is the
existence of compulsion that is important so that, as the European Court made
clear in De Wilde, Ooms and Versyp v. Belgium, (18 June 1971) it is of no
consequence that the person may have surrendered him or herself voluntarily.
Moreover it is probably irrelevant that the person deprived of liberty is unaware of
this fact; it is sufficient that he or she is no longer free to leave.
Article 5 is most commonly going to be relevant where the degree of confinement
to a particular place is extreme in that the person affected cannot move from a
certain spot – whether in the street or other open place – or is required to stay in
a certain vehicle or room (not necessarily a cell). However, the fact that a person
has a degree of liberty within a particular place will not necessarily mean that
Article 5 has no application. Thus it was found in Ashingdane v. the United
Kingdom (28 May 1985) to cover a person who, although being kept compulsorily
in a mental hospital, was placed in a ward which was not locked and was allowed
to leave the hospital grounds during the day and over the weekend without being
accompanied.
Similarly in Guzzardi v. Italy (6 November 1976) it was held applicable to a
requirement that someone suspected of involvement in organised crime live in an
unfenced area of 2.5 sq. km on a remote island with other such persons.
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Although his wife and child could live with him, the combination of constraint and
isolation were sufficient in this case for it to be treated as a deprivation of liberty.
These factors are more significant than the place, so a requirement that a person
stay in their home would engage Article 5, whether – as in Giulia Manzoni v. Italy
(1 July 1997) – this was pending trial or – as in Cyprus v. Turkey (Appl. Nos.
6780/74 and 6950/75 (Commission Report) – pursuant to a particularly strict form
of curfew under which persons could leave their homes only if escorted.
Where there is confinement to a particular area such as a village or district but
there is no accompanying isolation – as there was in the Guzzardi case – it is
much more likely to be regarded as an interference with freedom of movement
rather than a deprivation of liberty.
Equally, restrictions on persons seeking entry to a country – such as a
requirement that they stay in a particular area at the airport as opposed to being
forcibly kept in a special detention centre for aliens – would not generally be
regarded as a deprivation of liberty since they would still have the option of going
to another country.
However, such an option must be a realistic one and would not exist if either
there were no other country that would admit them or, where the person
concerned was seeking asylum, there were no other country offering protection
comparable to the protection which he or she expected to find in the one where it
was being sought. Such a situation arose in the case of Amuur v. France, where
the only possible alternative was Syria and admission was not only subject to the
“vagaries of diplomatic relations” but, as that was a country which was not bound
by the Geneva Convention on the Status of Refugees, there was no guarantee
that the persons concerned would not then be returned to the country in which
they feared being persecuted.
1.6.4 The status of the person affected
The status of the person affected is also relevant to determining whether a
deprivation of liberty has actually occurred. This has certainly been the view
taken of the confinement to particularplaces of persons serving in the armed
forces through the application of the normal disciplinary regime. Thus in Engel v.
the Netherlands, Article 5 was found inapplicable to a form of “arrest” which led
to the soldiers concerned, although required to carry out their normal duties,
being confined to a designated but unlocked building within army premises in
their off-duty hours. The soldiers were only able to invoke it when they were
subjected to a more strict form of “arrest”, which entailed them being locked in a
cell and thus unable to carry out their normal duties. The assumption underlying
this ruling is that, as military service inevitably leads to a lesser degree of liberty,
the threshold to be reached before restrictions engage Article 5 must necessarily
be greater than for civilians.
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It is unlikely that the imposition of greater restrictions on the liberty of someone
already in prison – such as a transfer from one with a light security regime to one
where prisoners are very strictly confined – would be regarded as a deprivation
of liberty for the purposes of Article 5, since liberty has already been lost as a
result of the conviction or other order of confinement. The Court did not consider
that there was any deprivation of liberty when a prisoner was confined in her cell
rather than allowed the usual free association with other prisoners. However, in
Bollan v. the United Kingdom (4 May 200, admissibility decision) the Court
accepted that measures adopted within a prison might disclose interference with
the right to liberty in exceptional circumstances.
It has also accepted that a prisoner released on licence could thus have regained
his or her liberty so that a subsequent recall to prison would be a deprivation
subject to the requirements of Article 5. It made it clear in Weeks v. the United
Kingdom (2 March 1987) that this was a matter of fact to be determined in each
case but conditions imposed on such a person which required a degree of
supervision and reporting to the authorities were not seen as sufficient to prevent
the applicant from being regarded as at liberty for the purposes of Article 5. It
was undoubtedly significant that the applicant had not been released for a very
specific purpose – such as attending a funeral – but could follow a normal life
subject to a number of conditions.
1.6.5 Acts by private individuals
Although most problems in satisfying the requirements of Article 5 are likely to
arise from the acts and decisions of judges and public officials, the behaviour of
private individuals may also be a source of concern. Any power given to private
individuals in arresting someone must also be constrained by Article 5
requirements. A private individual who is empowered to arrest someone
suspected of committing an offence (whether under a law of general applicability
or one governing private security services) must ensure that the person deprived
of liberty is then brought into the criminal process in the same manner that a law
enforcement officer is obliged to do.
Moreover, public officials cannot stand by and allow a deprivation of liberty to be
perpetrated where this is not compatible with the requirements of Article 5. Such
acquiescence was found to have occurred in Riera Blume and Others v. Spain
(14 October 1999) when the families of the applicants – who were thought to
have become members of a religious sect – had kept them in a hotel so that they
could be “deprogrammed” by a psychologist and a psychiatrist. In this particular
case the action had been at the suggestion of a court following the arrest of the
applicants in the course of a preliminary judicial investigation but there was no
legal authority for either this or the action of the families. As the latter could not
have taken place without the active cooperation of the authorities, Spain was
found to have violated Article 5. No private action which leads to a deprivation of
liberty contrary to this provision must be tolerated by public authorities and the
latter should certainly never encourage the former to do what they are
Key concepts on the European Convention on Human Rights
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themselves barred from doing. (The Court also emphasised, in Cyprus v. Turkey,
10 May 2001, that any acquiescence or connivance by a State Party’s authorities
in the acts of private individuals which violate the rights of other individuals within
its jurisdiction would engage its responsibility under the Convention. In that case,
however, claims of such acquiescence or connivance were not found to be
substantiated)
1.6.6 Action overseas
A State party to the European Convention makes a commitment in Article 1 of
the European Convention to secure the rights and freedoms to everyone within
its jurisdiction; and that means wherever it is in a position to exercise power,
regardless of whether this occurs within its internationally recognised or
constitutionally prescribed boundaries and regardless of whether there is any
legal basis for acting there.
As the European Court made clear in Loizidou v. Turkey, (18 December 1996)
jurisdiction for the purposes of the Convention is not restricted to a State Party’s
national territory, and thus responsibility could arise where the acts and
omissions of its authorities produced effects elsewhere. In particular where, as in
that case, military action was undertaken by a State Party in the territory of
another State, the exercise of effective control by the former over a particular
area would be sufficient to establish that it had jurisdiction and was thus under an
obligation to secure the Convention rights and freedoms there.
This conclusion was reinforced in the case of Cyprus v. Turkey – which arose out
of the same events – by virtue of the fact that the military operation and
subsequent occupation prevented one State Party to the Convention from
fulfilling its obligations under that instrument in the territory concerned. A failure
to regard events there as within Turkey’s jurisdiction would result in a vacuum in
the system of human rights protection available to the persons within it.
This exacting but realistic view of jurisdiction means that the requirements of
Article 5 will always have to be satisfied wherever a deprivation of liberty takes
place. It would, therefore, be applicable where law enforcement officers go to
another country in order to bring someone back either to stand trial or to serve a
sentence. Thus in Reinette v. France (63 DR 189 (1989),admissibility decision).
Article 5 was found applicable once an accused person was handed over in Saint
Vincent to French police on board a military aircraft. Thereafter the applicant’s
deprivation of liberty, although still occurring within Saint Vincent, was taking
place under the authority of the French and thus within France’s jurisdiction for
the purpose of Article 5.
Article 5 would be equally applicable where someone is illegally seized or
abducted, whether to ensure that they are subjected to the criminal process or to
reunite a child with one of its parents or for some other reason whenever such
Key concepts on the European Convention on Human Rights
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action is effected by State officials or it is in some other way attributable to the
State Party. Furthermore, as was seen in the case of Cyprus v. Turkey, Article 5
would be applicable to any deprivation of liberty effected in the course of military
action in some other country. The only reason that the Court found no violation of
Article 5 as a result of the military operations by Turkey which were being
impugned by Cyprus was that it had not been claimed by the latter that any
members of the Greek- Cypriot population had actually been detained during the
period under consideration.
Source: CoE, Human Rights handbooks No 5, The right to liberty and security of
the person
1.7 Determination (of civil rights and obligations)
The (claimed) judicial proceedings must lead to a “determination” of civil rights and
obligations. The mere communications or warning by a public authority that a
certain licence has lapsed de lege, is not a “determination”.
A request for a provisional measure does not result in a (final) determination and,
consequently, Article 6 is not applicable. On the other hand, if the determination by
a court has taken place but the court decision is not (fully) executed, the claim for
(the remainder of the) execution and damages still forms part of the determination
and is covered by Article 6.
There must be a connection between the dispute to be solved and a civil right or
obligation. A tenuous connection or remote consequence does not suffice.
In the Court's opinion, the power to give a binding decision which cannot be altered
by a non-judicial authority to the detriment of an individual party is inherent in the
very notion of a "tribunal" and the word "determination" ("qui décidera"). (See Van
de Hurk v. the Netherlands (19 April 1994), para.45).
Proceedings which only have a tenuous connection with civil rights and obligations
are outside the scope and protection of Article 6(1). For example, in BalmerSchafroth v Switzerland (26 August 1997) the applicants could not establish a direct
link between the operating condition of the power station which they were
contesting and their right to protection of their physical integrity.
On the other hand, the “determination” need not form the main point or even the
purpose of the proceedings. It is sufficient that the outcome of the (claimed) judicial
proceedings may be “decisive for”, or may “affect”, or may “relate to” the
determination and/or the exercise of the right, or the determination of a civil right or
obligation, as the case may be. The effects need not be legal; they may also be
purely factual. And if the proceedings concern the determination of a civil right or
obligation, the same applies to subsequent proceedings concerning legal costs
incurred.
The civil right or obligation does not have to constitute the object of the
proceedings.
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Ex-gratia or discretionary payments of benefits are unlikely to engage Article 6(1)
as there is no right to them. Therefore, if the government sets up a fund in response
to an emergency where people can make an application for financial assistance the
discretionary nature of this fund will almost certainly take it out side of the scope of
Article 6(1).
In Fayed v UK (25 August 1994) the applicant sought to argue that he had been
denied the right to a fair trial in relation to an official inquiry into his activities. The
Strasbourg Court held, however, that in relation to that inquiry there was no
disposition of legal rights and duties and therefore Article 6(1) was not engaged in
the first instance.
1.8 Equality of arms
The equality of arms principle
The most important of the unarticulated principles of Article 6 is the “equality of
arms” – the idea that each party to a proceeding should have equal opportunity
to present his case (Neumeister v. Austria (1968)), and that neither should enjoy
any substantial advantage over his opponent. The equality of arms principle
encompasses the notion that both parties to a proceeding are entitled to have
information about the facts and arguments of the opposing party and that each
party must have an equal opportunity to reply to the other. The Court has found
violations of this principle where a domestic court based its judgment on
submissions about which one of the parties had no knowledge (Slimane-Kaïd v.
France (2000), MacGee v. France (2003), Krcˇmárˇ and Others v. the Czech
Republic (2000), Fortum Corporation v. Finland (2003), APEH Üldözötteinek
Szövetsége and Others v. Hungary (2000) and Walston v. Norway (2003));
where one side was denied access to relevant documents contained in the case
file (Kerojärvi v. Finland (1995), McMichael v. the United Kingdom (1995) and
Foucher v. France (1997)) or was refused the right to have certain evidence
considered (De Haes and Gijsels v. Belgium (1997) and Mantovanelli v. France
(1997)), including that of expert witnesses (Bönisch v. Austria (1985)); where
courts considered submissions from only one party (Hiro Balani v. Spain (1994),
Ruiz Torija v. Spain (1994), Van Orshoven v. Belgium (1997), Quadrelli v. Italy
(2000) and Keegan v. Ireland (1994)); and where a party was not informed about
relevant dates in proceedings against him (Vacher v. France (1996), K.D.B. v.
the Netherlands (1998) and Fretté v. France (2002)).
Prosecuting authorities are under an affirmative obligation to disclose evidence of
value to the defence in a timely and effective way (Kuopila v. Finland (2000) and
Dowsett v. the United Kingdom (2003)). The presence of a governmental
representative during the deliberations of a court may lead to the exercise of
undue influence over the proceedings (APBP v. France (2002)).
In the cases of Colozza v. Italy (1985), Monnell and Morris v. the United Kingdom
(1987), Botten v. Norway (1996) and Lobo Machado v. Portugal (1996) the Court
Key concepts on the European Convention on Human Rights
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further held that in most circumstances defendants must be present and entitled
to take part in any proceedings.
In cases involving the removal of children from their parents, termination of
parental rights and similar issues going to the fundamental basis of the right to
family life, the Court has found violations in circumstances in which a child has
been removed from its mother within hours of birth and made available for
adoption one week later, without the parents having been provided with the
opportunity to obtain legal counsel and without the competent judicial authority
having raised important issues (P., C. and S. v. the United Kingdom (2002)).
Similar circumstances have arisen in other cases involving young children (see,
for example, Buchberger v. Austria (2001) and T.P. and K.M. v. the United
Kingdom (2001)).
In cases involving juveniles, different considerations may apply with respect to
the equality of arms principle than will apply in cases involving adults. For
example, the Court found a violation of Article 6 where two young children
accused of murder were found to be suffering from post-traumatic stress disorder
and to have only very limited ability to instruct their lawyers, testify adequately in
their own defence or otherwise participate fully in the proceedings, which were
themselves both highly publicised and public (V. v. the United Kingdom (1999)
and T. v. the United Kingdom (1999)).
Source: Short Guide to the European Convention on Human Rights, Donna
Gomien, 2005
1.9 Family
The concept of family life has evolved steadily in the lifetime of the Convention
and it continues to develop so as to take account of social and legal change.
Similar to the concept of private life, therefore, the Court maintains a flexible
approach to the interpretation of family life, bearing in mind the diversity of
modern family arrangements, the implications of divorce and medical advance.
According to the wording of the provision, family life is located squarely within the
private sphere, where it is entitled to function free from arbitrary state
interference. However, Article 8 does not contain a right to establish family life,
for example by marrying or having the opportunity to have children. (Article 12
guarantees the right to marry and found a family)
1.9.1 What constitutes family life?
As a rule, the Court decides on the existence of family life on the facts of each
case and the general principle to be applied is whether there are close personal
ties between the parties. Although the Court’s case-by-case approach means
Key concepts on the European Convention on Human Rights
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that it is not always possible to enumerate those relationships which constitute
family life and those which do not, an increasing number of relationships now
enjoy the automatic protection of Article 8.
1.9.2 The family based on marriage
The protection of Article 8 always extends to marriages, which can be shown to
be lawful and genuine. Those lacking substance or existing in form only, such
as a sham marriage entered into for the purposes of avoiding immigration rules
or acquiring nationality, may thus fall outside the scope of Article 8.
A child born to parents who are lawfully and genuinely married will be ipso
iure part of that relationship from the moment and by the fact of the child’s
birth. (Berrehab v. the Netherlands, judgment of 21 June 1988) Thus, the
relationship between married parents and their children will always fall within the
scope of Article 8 para. 1.
1.9.3 Is marriage necessary to enjoy family life?
Article 8 applies automatically to the relationship between a mother and her
child, regardless of her marital status. (Markcx v. Belgium, judgment of 13 June
1979) Such relationships will always require the protection of Article 8 therefore.
Unmarried couples who live together with their children will normally be said
to enjoy family. This was established in the Johnston case, (Johnston v. Ireland,
judgment of 18 December 1986) where in reaching its conclusion the Court was
persuaded by the stable nature of their relationship and the fact that it was
otherwise indistinguishable from the family based on marriage.
1.9.4 Is cohabitation necessary to enjoy family life?
Cohabitation is not a sine qua non of family life, irrespective of the parents’
marital status. (For example see Berrehab v. the Netherlands –divorced fatherand Kroon and Ors, judgment of 27 October 1994 –unmarried-) Thus, family
members who do not live together, due to divorce or separation or by
arrangement, may nonetheless enjoy the protection of Article 8. "
1.9.5 Can family life exist without cohabitation or marriage?
In Boughanemi v. France (Boughanemi v. France, judgment of 24 April 1996,
par. 35) the Court held that
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“ [t]he concept of family life on which Article 8 is based embraces, even when
there is no cohabitation, the tie between a parent and his or her child, regardless
of whether or not the latter is legitimate. Although that tie may be broken by
subsequent events, this can only happen in exceptional circumstances.”
Applying this principle, the applicant’s relationship with his son born outside
marriage, and with whom he had had little contact, was found to amount to family
life within the meaning of that provision.
Neither a father’s delay in recognising his child, his failure to support the child
financially, nor his decision to leave the child in the care of relatives when
emigrating to a Convention State have been found to constitute exceptional
circumstances in this regard. (See C. v. Belgium, judgment of 7 August 1996 and
Ahmut v. the Netherlands, judgment of 28 November 1996) The presumption that
Article 8 applies automatically to the relationship between parent and child,
regardless of its nature, has also been applied in the Söderbäck case concerning
adoption. (Söderbäck v. Sweden, judgment of 28 October 1998) Here, an
unmarried father and his daughter were found to enjoy family life despite the fact
that they had never cohabited nor enjoyed regular contact.
1.9.6 Does Article 8 apply if the establishment of family life is
frustrated?
In circumstances where one parent has prevented the development of family ties
with a child the potential for family life may be sufficient to attract the
protection of Article 8. This arose in Keegan v. Ireland (judgment of 26 May
1994), where the applicant’s daughter had been placed for adoption by the
child’s mother without his consent or knowledge, thereby depriving him of the
opportunity to establish close personal ties with her. However, due to the nature
of the relationship between the child’s parents – they cohabited, planned the
pregnancy and intended to marry – the Court found that the potential family life
between father and child meant that their relationship fell within the scope of
Article 8, notwithstanding that they had met on only one occasion.
1.9.7 Can family life exist without a blood tie?
While the Court places clear emphasis on the social rather than the biological
reality of a situation in determining whether family life exists, it has only once
found that family life existed between those without a blood link. In X, Y & Z
v. the United Kingdom (X, Y &Z v. the United Kingdom, judgment of 22 April
1997) it held that the relationship between a female-to-male transsexual and his
child born by artificial insemination by donor (AID) amounted to family life. In
reaching this conclusion, the Court found it significant, firstly, that their
relationship was otherwise indistinguishable from that enjoyed by the traditional
Key concepts on the European Convention on Human Rights
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family and secondly, that the transsexual participated in the AID process as the
child’s father.
The Court has not yet considered whether same sex relationships constitute
family life. In Kerkhoven v. the Netherlands, the Commission failed to find that a
stable relationship between two women and the child born to one of them by AID
amounted to family life (Kerkhoven, Hinke&Hinke v. the Netherlands, appl. No.
15666/89, 19 May 1992, unreported) Notwithstanding that they lived together as
a family and shared parental tasks in relation to the child, their claim for legal
recognition was deemed to relate only to private life. Were the Court to consider
the matter it may indeed choose to follow its own precedent in X, Y & Z, meaning
that family life would include same-sex relationships, notwithstanding the
absence of a blood tie.
1.9.8 Is the blood tie in itself sufficient?
While the absence of a biological link will not preclude a relationship from
constituting family life, a mere blood or genetic link appears to be insufficient
for this purpose. Thus, the relationship between a sperm donor and the child
born as a result will not normally amount to family life under Article 8 unless there
is sufficient evidence that they enjoy close personal ties in addition to the blood
link. (G. v. the Netherlands, appl. No. 16944/90, 8 February 1993, 16 EHRR 38)
Where other relationships are concerned, the Court determines the existence of
family life on the facts of each case. In relation to extended family and other
arrangements, the case-law is as follows:
-
-
-
-
Family life may exist between children and their grandparents since
they play a “significant part in family life”. (Marckx v. Belgium, judgment of
13 June 1979)
Siblings, both as children (Olsson v. Sweden, judgment 0f 24 March
1988) and as adults, (Boughanemi v. France, judgment of 24 April 1996)
also fall within the meaning of family life.
The relationship between an uncle or aunt and his/her nephew or niece
may fall within the meaning of family life where there is particular evidence
of close personal ties. Thus, in Boyle v. the United Kingdom, (Boyle v. the
United Kingdom, appl. No. 16580/90, Comm. Rep., 9 February 1993)
family life was found to exist between an uncle and his nephew, in the light
of the fact that the boy stayed for weekends with his uncle, who was
deemed by the domestic authorities to be a “good father figure” to him.
Family life may exist between parents and children born into second
relationships, or those children born as a result of an extra-marital or
adulterous affair, particularly where the paternity of the children has been
recognised and the parties enjoy close personal ties. (Jolie & Lebrun v.
Belgium, appl. No. 11418/85, 14 May 1986,DR 47, p 243)
Key concepts on the European Convention on Human Rights
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The relationship between adoptive parents and children will, in principle,
attract the protection of Article 8.X. v. France, appl. No 9993/82, 5 october
1982, DR31, p 241, 5 EHHR 302, Söderbäck v. Sweden, judgment of 28
October 1998)
Whether ties between a child and his/her foster parents will amount to
family life will depend on the facts of the case, in particular, whether the
child has close personal ties with his/her natural parents and the length of
time s/he has been in the care of the foster family. (X v. Switzerland, appl
no 8257/78, 10 July 1978, DR 13, p 248) The longer the foster- care
arrangement, the greater the likelihood that family ties will be found to
exist."
1.9.9 Can family life ever come to an end?
Once established, family life does not come to an end upon divorce, (appl. No
8427/78, Hendriks v. the Netherlands, Comm. Rep. 8 March 1982, DR 29, p 5, 5
EHHR 223) or when the parties no longer live together. (Berrehab v. the
Netherlands, judgment of 21 June 1988) Nor is it terminated by a decision to
place a child in care. (Andersson v. Sweden, judgment of 25 February 1992,
para. 72) Although subsequent events, such as adoption (appl. No. 7627/76, X.
v. the United Kingdom, 11 July 1977, DR 11, p 160) or expulsion (appl. No.
14830/89, Yousef v. the United Kingdom, Comm Rep. 30 June 1992, para 43)
may break the tie of family life, the Court has established that this can only
happen in exceptional circumstances. (Boughanemi v. France, judgment of 24
April 1996)
Source: CoE, Human Rights handbooks No 1, The right to respect for private and
family life
1.10 Home
In general, home, within the meaning of Article 8, is where one lives on a settled
basis and it may be the case, therefore, that all living places constitute a home
within the meaning of Article 8 para. 1. Holiday homes and work hostels or other
temporary long-term accommodation might be exceptions.
1.10.1 Is ownership sufficient to constitute a home?
In Gillow v. the United Kingdom (judgment of 24 November 1986, para. 46) the
Court held that the applicants, who had owned but not lived in their house for 19
years, could indeed call it a home
within the meaning of Article 8. This was because, despite the length of their
absence, they had always intended to return and they had retained sufficient
continuing links with the property for it to be considered their home.
Key concepts on the European Convention on Human Rights
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1.10.2 Do business premises constitute a home?
In 1992 the Court extended the notion of home to cover some business premises
in the context of justifying a search of such premises under Article 8.
In Niemietz v. Germany (judgment of 16 December 1992), the Court decided that
home may extend, for example, to a professional person’s office. Given that
activities relating to a profession or business may be conducted from a person’s
private residence and activities which are not so related may be carried on in an
office or commercial premises it may not always be possible to draw precise
distinctions. In such circumstances, business premises were entitled to the
protection of Article 8.
Source: CoE, Human Rights handbooks No 1, The right to respect for private and
family life
1.11 Inhuman treatment
Ill-treatment that is not torture, in that it does not have sufficient intensity or
purpose, will be classed as inhuman or degrading. As with all Article 3
assessments, the assessment of this minimum is relative. (See, amongst other
authorities, the Tekin v. Turkey judgment of 9 June 1998, ECHR 1998-IV, §52)
In the Greek case, the Commission stated that the notion of inhuman treatment
covers at least such treatment as deliberately causes severe suffering, mental or
physical, which in the particular situation is unjustifiable. Treatment has been
held by the Court to be “inhuman” because, inter alia, it was premeditated, was
applied for hours at a stretch, and caused either actual bodily injury or intense
physical and mental suffering. Many instances of inhuman treatment arise in the
context of detention, where victims have been subjected to ill-treatment which
has been severe, but not of the intensity required to qualify the treatment as
torture. It can also apply to a range of behaviour outside of detention where
victims are exposed to deliberate cruel acts which leave them in extreme
distress. In the cases of Mr Asker, Mrs Selçuk, Mrs Dulas and Mr Bilgin the
applicants’ homes were destroyed by members of the security forces
conducting operations in the areas where the applicants lived. Both the
Commission and Court found that the destruction of the homes constituted an
act of violence and deliberate destruction in utter disregard of the safety and
welfare of the applicants who were left without shelter and in circumstances
which caused anguish and suffering.( Selçuk and Asker v. Turkey, judgment of
24 April 1998, ECHR 1998-II, p. 19, §78; Dulas v. Turkey, judgment of 30
January 2001, §55; Bilgin v. Turkey, 16 November 2000, §103) This was
inhuman treatment within the meaning of Article 3 of the Convention.
16
Source: CoE, Human Rights handbooks No. 6, The prohibition of torture
Key concepts on the European Convention on Human Rights
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1.12 Private life
According to the Court, private life is a broad concept which is incapable of
exhaustive definition. (Costello-Roberts v. the United Kingdom, judgment of 25
March 1993, para. 36) The concept is clearly wider than the right to privacy,
however, and it concerns a sphere within which everyone can freely pursue the
development and fulfilment of his personality. In 1992, the Court said that
…. it would be too restrictive to limit the notion [of private life] to an “inner circle”
in which the individual may live his own personal life as he chooses and to
exclude there from entirely the outside world not encompassed within that circle.
Respect for private life must also comprise to a certain degree the right to
establish and develop relationships with other human beings. (Niemietz v.
Germany, judgment of 16 December 1992)
Thus, private life necessarily includes the right to develop relationships with
other persons and the outside world.
1.12.1 What relationships constitute private life?
1.12.1.1 Relationships which fall outside the scope of family life
Relationships which fall outside the scope of family life under Article 8 may
nonetheless deserve the provision’s protection where they constitute private
life. This category includes:
- Relationships between foster parents and children they have looked
after; (appl. No. 8257/78, 10 July 1978, 13 DR 248)
- Relationships between parties who are not yet married; (appl. No.
15817/89, 1 October 1990, 66 DR 251)
- Relationships between homosexuals and their partners with or without
children; (appl. No. 15666/89, Kerkhoven v. the Netherlands, 19 May
1992, unpublished)
Private life does not extend to the relationship between an owner and his pet.
(appl. No. 6825/75, 4 March 1976, 5 DR 86)
1.12.1.2 To what extend do sexual activities fall within the scope of private life?
A person’s sexual life is part of his private life, of which it constitutes an important
aspect. Private life thus guarantees a sphere within which a person can
establish relations of different kinds, including sexual ones and thus the
choice of affirming and assuming one’s sexual identity comes within the
protection of Article 8. In Dudgeon v. the United Kingdom, (judgment of 22
October 1981) the Court held that given the personal circumstances of the
applicant, the very existence of legislation which outlawed homosexual conduct
continuously and directly affected his private life. It has confirmed several times
Key concepts on the European Convention on Human Rights
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since that sexual orientation and activity concern an intimate aspect of private
life. However, not every sexual activity carried out behind closed doors
necessarily falls within the scope of Article 8. In Laskey, Jaggard & Brown v.
the United Kingdom, (judgment of 19 February 1997) the applicants were
involved in consensual sado-masochistic activities for the purposes of sexual
gratification. While the Court did not formally have to determine the issue of
whether the applicants’ behaviour fell within the scope of private life, it expressed
some reservations about allowing the protection of Article 8 to extend to activities
which involved a considerable number of people; the provision of specially
equipped chambers; the recruitment of new members and the shooting of
videotapes which were distributed among the members.
1.12.1.3 To what extend do social activities fall within the scope of private life?
There is some evidence in the case-law that there is a sphere of personal
relationships beyond the “inner circle” that is protected by the concept of
private life.
-
-
In McFeeley v. the United Kingdom, (appl. No. 8317/78 McFeeley & Ors v.
the United Kingdom, 15 May 1980, 20 DR 44) the Commission suggested
that the importance of relationships with others also applied to prisoners
and respect for private life thus required a degree of association for
persons imprisoned. Freedom to associate with others is thus a further,
social feature of private life.
Some judges of the Court have expressed a view of private life which
encompasses the possibility of the effective enjoyment of a social life
being an aspect of private life. This involves the capacity by reason of
cultural and linguistic familiarity to enter into social relationships with
others and is particularly relevant in immigration cases.
1.12.1.4 Do business relationships concern private life?
In Niemietz v. Germany (judgment of 16 December 1992) the Court was
prepared to consider that some personal relationships in business contexts
might fall within the scope of private life.
1.12.2 What activities or measure concern private life?
1.12.2.1 Does telephone tapping always concern private life?
The use of covert technological devices to intercept private
communications has been found to fall within the scope of private life.
Moreover, the provision applies regardless of the content of the telephone
conversation.
Key concepts on the European Convention on Human Rights
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-
-
28
In A v. France (judgment of 23 November 1993) the Government argued
that conversations taped relating to the commission of murder did not
relate to private life. The Commission held that the mere fact that a
conversation concerned the public interest did not deprive it of its
private character. The Court also accepted this argument.
In Halford v. the United Kingdom, (judgment of 25 June 1997)
conversations by telephone were covered whether business or private,
as was the use of an office telephone.
In contrast, where an applicant used a radio channel for civil aircraft, the
interception did not constitute interference with private life since the
conversation was on a wavelength accessible to other users and could
not be classified as private communication. (appl. No. 21353/93, 27
February 1985)
1.12.2.2 Will the collection of personal data by the State concern private life?
The collection of information by officials of the State about an individual
without his consent will always concern his/her private life and will thus fall
within the scope of Article 8 para. 1.
Examples include:
-
-
-
-
An official census, (appl. No. 9072/82, X v. the United Kingdom, 6
October 1982, 30 DR 229) which includes compulsory questions relating
to the sex, marital status, place of birth and other personal details;
The recording of fingerprinting, photography and other personal
information by the police 24 even if the police register is secret; (Leander
v. Sweden, judgment of 26 March 1987, Series A no. 300-A)
The collection of medical data and the maintenance of medical records;
(appl. No. 14661/81, 9 July 1991, 71 DR 141)
The compulsion by tax authorities to reveal details of personal
expenditure (and thus intimate details of private life); (appl. No. 9804/82, 7
December 1982, 31 DR 231)
A system of personal identification, such as those covering
administrative and civil matters including health, social services and tax.
1.12.2.3 Accessing personal data
The inability to access the State’s records may concern private life depending
on the type of information held. In Gaskin v. the United Kingdom (judgment of 7
July 1989, para. 89), the Court held that because the files held on the applicant
concerned highly personal aspects of his childhood, development and history
and thus constituted his “principal source of information about his past and
formative years”, lack of access thereto raised issues under Article 8.
1.12.2.4 Does the regulation of names concern private life?
Key concepts on the European Convention on Human Rights
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Even though Article 8 does not contain any explicit reference to names, an
individual’s name does concern his/her private and family life because
it constitutes a means of personal identification. The fact that there may exist a
public interest in regulating the use of names is not sufficient to remove the
question of a person’s name from the scope of private and family life. (Stjerna v.
Finland, judgment of 25 November 1994, Series A no. 229 B) The same
principles applies to forenames, which also concern private and family life since
they constitute a means of identifying persons within their families and the
community. (Guillot v. France, judgment of 24 October 1996, RJD 1996-V, No.
19)
1.12.2.5 Does invasion of the press concern private life?
The absence of protection against press intrusions or the disclosure in the media
of highly intimate, non-defamatory details of private life has not yet been subject
to significant challenge in Strasbourg. Some complaints, such as the Irish case
where the applicant complained that an insurance company taking photographs
of her outside her house infringed her private life (appl. No. 18760/91 v. Ireland,
1 December 1993) and the case introduced by Earl and Countess Spencer
concerning press coverage of their private lives, (appl. No. 28851/95 en
28852/95, Spencer v. the United Kingdom, 16 January 1998) have been declared
inadmissible for failing to exhaust domestic remedies. Determination of whether
issues might arise under private life in relation to press intrusion might be
influenced by the extent to which the person concerned courted attention, the
nature and degree of the intrusion into the private sphere and the ability of
diverse domestic remedies to provide effective and adequate redress.
1.12.3 The determination of legal ties
1.12.3.1 Paternity proceedings
The determination of a father’s legal ties with his daughter was found to concern
his private life, notwithstanding that the paternity proceedings which he wished to
institute were aimed at the dissolution in law of existing family ties. (Rasmussen
v. Denmark, judgment of 25 November 1984, Series A no. 87) In most
cases, however, such legal ties will constitute family life.
1.12.3.2 Transsexuals
Matters relating to the refusal to allow a transsexual to obtain a change of name
and official papers to reflect gender re-assignment have been found to concern
the right to respect for private life under Article 8 para. 1. (B. v. France, judgment
of 25 March 1992, Series A, no. 232-C)
Source: CoE, Human Rights handbooks No 1, The right to respect for private and
family life
Key concepts on the European Convention on Human Rights
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1.13 Property or possessions
The nature of “possessions” under Article 1 of Protocol No. 1
The Court has reviewed a number of cases in which it has had to delineate the
nature of “possessions” under Article 1 of Protocol No. 1. In addition to the
common sense interpretation of the term to comprise immovable and movable
property, the Court has held that the term “possessions” extends to any “vested
rights” an individual may establish, including such private law assets as the right
to conclude tenancy agreements (Mellacher and Others v. Austria (1989)) or
shares or monetary claims based on contracts or torts (Stran Greek Refineries
and Stratis Andreadis v. Greece (1994)). It also encompasses accrued rights in
pension or social security systems (Vasilopoulou v. Greece (2002)), a “legitimate
expectation” that one will be able to develop a property in accordance with a duly
registered development plan (Pine Valley Developments Ltd. and Others v.
Ireland (1991)), a legal claim of material value (S.A. Dangeville v. France (2002)),
licences issued in conjunction with the operation of a business (Tre Traktörer
Aktiebolag v. Sweden (1989)), goodwill engendered through the conduct of
professional relationships (Van Marle and Others v. the Netherlands (1986)) and
compensation claims for expropriated property (discussed below).
Under the Convention, no possession exists until such time as one can perfect a
claim to the property at issue. In other words, the right to property does not
encompass the right to acquire property. Thus, in the case of Marckx v. Belgium
(1979) (discussed elsewhere under Articles 8 and 14), the Court held that a
mother who was denied the right to will property to her daughter suffered a
violation of her rights under Article 1 of Protocol No. 1, but the daughter herself
did not, as the expectation of acquiring property was not protected under the
Article; and in the case of Van der Mussele v. Belgium (1983) (discussed
elsewhere under Articles 4 and 14), the Court held that the requirement that a
lawyer provide certain services for free did not deprive him of existing
possessions, and thus there was no violation of Article 1 of Protocol No. 1. The
Court has also held that this provision cannot be interpreted as imposing any
restrictions on the Contracting States’ freedom to choose conditions under which
they accept to restore property which had been transferred to them before they
ratified the Convention (Jantner v. Slovakia (2003)). However, should it choose to
do so, the State must comply with the requirements of Article 1 of Protocol No. 1.
In the case of Bruma˘rescu v. Romania (1999) and a number of similar cases,
the Court found a violation of this provision where the Government refused to
return previously nationalised property in spite of the existence of final and
binding judgments calling for this course of action. (In these cases, the Court
often has found violations of the right to a court guaranteed under Article 6 of the
Convention in addition to violations of Article 1 of Protocol No. 1.)
Source: Short Guide to the European Convention on Human Rights, Donna
Gomien, 2005
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1.14 Security of the person
Article 5: ‘Everyone has the right to liberty and security of person.’ …
The “right to liberty and security” is a unique right, as the expression has to be
read as a whole. “Security of a person” must be understood in the context of
physical liberty and it cannot be interpreted as to referring to different matters
(such as a duty on the state to give someone personal protection form an attack
by others, or right to social security). The guarantee of “security of person”
serves to underline a requirement that the authorities in Strasbourg have
developed when interpreting and explaining the right to liberty in Article 5.
The European Court has stressed the importance of the right to liberty and
security in many cases. Thus, in Kurt v. Turkey, (25 May 1998, para. 123) the
Court held:
…that the authors of the Convention reinforced the individual’s protection against
arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive
rights which are intended to minimise the risks of arbitrariness by allowing the act
of deprivation of liberty to be amenable to independent judicial scrutiny and by
securing the accountability of the authorities for that act. […] What is at stake is
both the protection of the physical liberty of individuals as well as their personal
security in a context which, in the absence of safeguards, could result in a
subversion of the rule of law and place detainees beyond the reach of the most
rudimentary forms of legal protection.
Source: CoE, Human Rights handbooks No 5, The right to liberty and security of
the person
1.15 Torture
Definition
The three broad areas of prohibition in Article 3 have been described as being
distinct but related. According to the European Commission of Human Rights in
the Greek Case (Greek Case, Commission Report of 5 November 1969,
Yearbook 12)
“It is plain that there may be treatment to which all these descriptions apply, for
all torture must be inhuman and degrading treatment, and inhuman treatment
also degrading.”
To understand what type of behaviour is forbidden, and how that behaviour is to
be classified, it is necessary to understand what the legal implications for each
term set out in Article 3 are. Article 3 can be broken down into five elements:
- torture
- inhuman
- degrading
Key concepts on the European Convention on Human Rights
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32
treatment
punishment
ECtHR case law
Torture as a term of art has its own discrete legal implication. The Court has
expressed the view that the intention of the drafters of the Convention in using
both the terms “torture” and “inhuman or degrading treatment” was to make a
clear distinction between them.(Ibid. p. 186. See recent authority such as Dikme
v.Turkey judgment of 11 July 2000, §93.)
Specifically, the Court considered that the intention was that a special stigma
should attach to deliberate inhuman treatment causing very serious and cruel
suffering.(Ibid., §167). The Court on that occasion referred to Article 1 of
Resolution 3452 (XXX) adopted by the General Assembly of the United Nations
on 9 December 1975, which declares: Torture constitutes an aggravated and
deliberate form of cruel, inhuman or degrading treatment or punishment.
The European Court of Human Rights, although it has identified the elements
which characterize treatment or punishment as torture, has never tried to define
exactly what the term means. However it has endorsed in part the definition
provided in the United Nations Convention Against Torture, which came into
force on 26 June 1987.( 17 See, particularly, Akkoç v. Turkey, judgment of 10
October 2000, §115; Salman v. Turkey, judgment of 27 June 2000, §114)
At Article 1, the Convention states that the term torture means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or
a third person, or for any reason based on discrimination of any kind (emphasis
added)
From the foregoing it is possible to extract three essential elements which
constitute torture:
- the infliction of severe mental or physical pain or suffering
- the intentional or deliberate infliction of the pain
- the pursuit of a specific purpose, such as gaining information, punishment
or intimidation
Source: CoE, Human Rights handbooks No. 6, The prohibition of tortureu6, The
ture11urce handbook
1.16 Victim (Article 34 ECHR)
Article 34 ECHR:
‘The Court may receive applications from any person, non-governmental
organisation or group of individuals claiming to be the victim of a violation
Key concepts on the European Convention on Human Rights
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by one of the High Contracting Parties of the rights set forth in the Convention or
the protocols thereto. The High Contracting Parties undertake not to hinder in any
way the effective exercise of this right.’
As a general rule an applicant can only be a victim for the purposes of Article 34 if
she or he has been directly affected by the measure in issue. Class actions
therefore are not permitted [Lindsay v UK (Decisison 17 January 1997)]. Article 34
also does not permit an application to claim in the abstract that the law is
incompatible with the Convention.
To be a victim it is not necessary to show that the complainant has suffered specific
prejudice or damage as a result of the alleged violation. This is directly relevant to
the assessment of just satisfaction under Article 41.
A complainant maybe a victim of an on-going violation of the Convention. In such
circumstances, the complainant can assert that she or he is the victim of the state
of the law. In Norris v Ireland (26 October 1988) the applicant was able to assert
that he was directly affected by the law even in the absence of a measure applying
it to him. Mr Norris was found to be a victim of a law that criminalised consensual
homosexual activity in private, although he had not been prosecuted and the risk of
prosecution was minimal. He was a victim because he was forced to choose
between refraining from sexual activity on the one hand and breaking the law on
the other.
Similarly, in Bowman v UK (19 February 1998) the applicant was able to establish
that she was a victim even though she was acquitted of a charge of incurring
unauthorised expenditure during an election. That offence the Court held violated
her right of freedom of expression. Even though she was acquitted on a
technicality, she could, unless she modified her behaviour, be prosecuted and
possibly convicted in the future. In both these cases it was the existence of the
domestic law which had direct affect on the applicants.
The fact that there is a potential future violation of the Convention may also be
sufficient to establish a complainant as a victim. Therefore in Soering v UK
(Decision 10 November 1988) the applicant could establish he was a victim in that if
he was extradited to the United States he could face the death row phenomenon
which the Court held violates Article 3 [see also D v UK (2 May 1997)].
An individual may be an indirect victim where the applicant has suffered as a result
of a violation of the Convention of another and that primary victim is unable to
pursue a complaint. Therefore in both McCann v UK (Decision 3 September 1993)
and Osman v UK (28 October 1998), family members and the wife of the deceased
could claim to be indirect victims.
As has already been established, to be a victim it is not necessary to prove actual
damage. Therefore in Artico v Italy (13 May 1980) the applicant could establish that
he was a victim in that he did not have a fair trial as a result of an inadequate legal
representation, however to establish that he did not need to prove that had he had
such representation he would have been acquitted.
Key concepts on the European Convention on Human Rights
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Under certain circumstances it may be very difficult to establish victim status. This
often arises in relation to secret surveillance where an individual cannot establish
conclusively that she or he has been the subject of such measures. In such
circumstances, a distinction is drawn between complaints directed at the existence
of a regime which is alleged to fall short of the requirements of the Convention
[Malone v UK (Decision 13 July 1981)] with complaints concerning specific
instances of unlawful activity by the state [Klass v Germany (Decision 18 December
1974)].
The complainant will cease to be a victim if adequate redress has been provided.
Who can be a victim complainant?
The first hurdle the complainant needs to overcome is to establish that she or he
were in the jurisdiction of the State at the time of the alleged violation. There is no
requirement to be a citizen. Thus even if someone is unlawfully within a state,
because they are physically present, they are within the jurisdiction. Jurisdiction is a
complex concept and stems from Article 1 ECHR and extends to circumstances
where the Member State has control of a territory [Loizidou v Turkey (Decision 23
March 1995) – but see Bankovic and others v Belgium and others (Decision 12
December 2001) and Issa v Turkey (30 March 2005)].
Complaints can be introduced by children or those with mental incapacity and
individuals can submit complaints through authorised representatives. So, for
example, parents can represent their children unless there is a conflict of interest. It
is also possible for the next of kin to introduce applications on behalf of individuals
who have died and they can also continue a complaint if the applicant dies during
the proceedings, as long as that next of kin has a sufficient interest in the case
[Scherer v Switzerland (Decision 23 March 1994) ; Laskey, Jaggard and Brown v
UK (19 February 1997)].
As is explicit in Article 34, the right of individual petition extends to those with a legal
personality such as corporations [Air Canada v UK (5 May 1995)], NGOs, political
parties [Liberal Party v UK (Decision 18 December 1980)] and trade unions
[Swedish Transport Workers' Union v Sweden (Decision 30 November 2004)].
Unincorporated bodies can also act on behalf of their members if that body is
directly affected by the measures complained of [Christians Against Racism and
Fascism v UK (Decision of 16 July 1980)]. Where a complaint is brought by an
organisation it must be signed by those competent to represent it. Where there is
no clearly defined legal structure, the application should be signed by all of those on
whose behalf it is submitted.
Complaints cannot be made by local or central government or by other public
authorities [Rothemthurm Commune v Switzerland and Consejo General v Spain
(Decision 28 June 1995)].
Key concepts on the European Convention on Human Rights
35
2. Hierarchy of rights
2.1 Absolute rights
Rights in this category cannot be infringed under any circumstances, not even in
the times of war. This category includes Articles 2, 3, 4(1), and 7. Article 15 of the
Convention outlines how certain rights can be derogated from in times of
emergency, but makes it clear that some rights can never be infringed in any
way. For States that have ratified Protocol 13, the death penalty has been
abolished both in times of peace and war.
2.2 Limited rights:
These rights can be limited but only in the situations specifically allowed for (for
example Article 5 and 6).
Crucial to the understanding of how the Convention rights are interpreted and
applied is the understanding of how rights can be restricted and the principles of
necessity and proportionality. In summary the tests for whether an interference with
a restricted right amounts to a violation are:
1. Was the interference prescribed by law? If so
2. Did the interference pursue one of the aims set out in the right? If so
3. Was the interference necessary in a democratic society and was is
proportionate? If so
4. Was the interference discriminatory? If the answer to any of the first 3 of
these questions is no, or if the answer to the fourth question is yes, then the
interference will be unlawful and in violation of the Convention.
When reading decisions of the court involving restricted rights you will see that the
Court goes through each if these tests in turn to decide whether or not an
interference amounted to a violation.
2.2.1 Rule of strict interpretation of limitations clauses
The restrictions clauses contained in the second paragraphs noted above are
themselves quite broad. In order to ensure that States Parties do not abuse the
power inherent in this breadth, the Convention institutions established a rule of
strict interpretation for these clauses, stating in the case of Sunday Times v. the
United Kingdom (1979):
Strict interpretation means that no other criteria than those mentioned in the
exception clause itself may be at the basis of any restrictions, and these criteria,
in turn, must be understood in such a way that the language is not extended
beyond its ordinary meaning.
The rule of strict interpretation applies both to the two general conditions
common to all the qualifying paragraphs under discussion, that any restrictions
Key concepts on the European Convention on Human Rights
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on rights and freedoms must be lawful and “necessary in a democratic society”,
and to the more specific grounds listed in the separate Articles. When reviewing
a case in which the government has invoked one or more of the restrictive
clauses of the Article in question, the Court pursues the following line of analysis.
First, it will determine whether or not the State action was “in accordance with
law”. If it finds that it was not, the Court will find a violation and will not proceed
with further review (see, for example, Rotaru v. Romania (2000)). If it finds that
the action met the legality standard, it will then examine whether that action could
be considered “necessary in a democratic society” for one of the legitimate
purposes listed in the relevant Article, such as the preservation of public order,
the protection of health or morals, and so forth.
2.2.2 The interpretation
law/prescribed by law”
of
the
phrase
“in
accordance
with
The concept of legality under the Convention applies to all types of domestic
laws – administrative, statutory, and constitutional, written and unwritten (Golder
v. the United Kingdom (1975), Silver and Others v. the United Kingdom (1983),
and Sunday Times v. the United Kingdom (1979)). The Court has established
two major requirements of lawfulness, as set forth in the Sunday Times case:
Firstly, the law must be adequately accessible: the citizen must be able to have
an indication that is adequate in the circumstances of the legal rules in a given
case. Secondly, a norm cannot be regarded as a “law” unless it is formulated
with sufficient precision to enable the citizen to regulate his conduct....
Thus, in order for a particular State action or enactment to be considered to be
“in accordance with law” under the Convention, it must be both accessible and
foreseeable. The Court further developed the notion of legality in the case of
Malone v. the United Kingdom (1984), by tying it to the prohibition against State
abuses of power:
It would be contrary to the rule of law for the legal discretion granted to the
executive to be expressed in terms of an unfettered power. Consequently, the
law must indicate the scope of any such discretion conferred on the competent
authorities and the manner of its exercise with sufficient clarity, having regard to
the legitimate aim of the measure in question, to give the individual adequate
protection against arbitrary interference.
Thus, the third element comprising legality under the Convention is the existence
of guidelines and mechanisms through which the exercise of State discretion
may be subject to controls crafted to protect the individual against arbitrary
conduct of governmental authorities, including possible abuses of authority.
Key concepts on the European Convention on Human Rights
37
2.2.3 The interpretation of the phrase “necessary in a democratic
society”
When reviewing exercises of State discretion in restricting the operation of rights
and freedoms under the Convention, the Court first considers the legality of the
act at issue in accordance with the above criteria. Should a State action meet the
legality standard, the Convention organs proceed to consider whether the action
can also be considered to be “necessary in a democratic society”. It is in the
review of State compliance with this criterion that the tension between individual
and societal interests comes to the fore.
The Court accepts that it has neither the competence nor the need to attempt to
exercise practical or political control over State actions within their own domestic
spheres. In the case of Handyside v. the United Kingdom (1976), it stated:
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.
It follows from this approach that the Court affords the State a certain degree of
discretion to determine the compatibility of a given course of action with the
requirements of the Convention. This discretion is commonly referred to as a
State’s “margin of appreciation”.
Although affording the High Contracting Parties to the Convention a margin of
appreciation, the Court has reserved to itself the authority to review State
exercises of discretion against the principles and limitations set forth not only
under the second paragraphs of the relevant Articles, but also under other
Articles of the Convention as well (see discussion below on Articles 17 and 18).
In the Handyside case, the Court stated “The domestic margin of appreciation ...
goes hand in hand with a European supervision”, a point it has reiterated in a
number of cases.
The Court has established that States must attach the “necessary in a
democratic society” standard to one of the specific grounds for restrictions listed
in the relevant article: a state cannot legitimately invoke general necessity to
justify restricting individual rights and freedoms. The grounds for restricting the
rights and freedoms listed in the various Articles will be discussed in the
following chapters. However, it is important to keep in mind that the Court frames
its notion of a democratic society in terms of such concepts as pluralism,
tolerance and broadmindedness – none of which is stated in the Convention in
so many words (Handyside). The Court has also delineated the term “necessary”
as being, “not synonymous with ‘indispensable’, neither has it the flexibility of
Key concepts on the European Convention on Human Rights
38
such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’, or ‘desirable’”
(Silver, Handyside).
The Convention organs pursue a two-pronged analysis when determining
whether a given State action complies with the “necessary in a democratic
society” standard. Firstly, they determine whether the aim of the restriction
imposed is itself legitimate. Secondly, they examine whether the means of
restricting the right or freedom at issue are “proportionate to the legitimate aim
pursued”. This requirement is often more difficult for the State to meet. The
notion of “necessity” means that any interference with the enjoyment of a
protected right must correspond to a pressing social need, and, in particular,
must remain proportionate to the legitimate aim pursued. When assessing
whether an interference is “necessary”, the Court takes into account the margin
of appreciation left to the State authorities. However, it considers that it is the
duty of the Respondent State to demonstrate the existence of the pressing social
need behind a given interference (McLeod v. the United Kingdom (1998) and
Klamecki v. Poland (No. 2) (2003)). When considering whether a state has acted
within its margin of appreciation in a given case, the Court may often review the
law and practice of other States Parties to the Convention, as well as the facts of
the case at issue. Where there appears to be no common ground amongst the
states, the Court will afford the respondent state a wide margin of appreciation
(X, Y and Z v. the United Kingdom (1997)).
In addition to the limitations permitted by the second paragraphs of Articles 8 to
11 and the third paragraph of Article 2 of Protocol No. 4, Articles 17 and 18 may
provide independent grounds for restricting or not restricting the enjoyment of the
substantive rights set forth in other Articles of the Convention.
Source: Short Guide to the European Convention on Human Rights, Donna
Gomien, 2005
2.3 Substantively qualified rights
Rights in this category, e.g. Articles 8, 9, 10 and 11, are qualified in the sense
that they set out the rights in the first paragraph, whilst the second paragraph
stipulates the conditions under which interferences with the right in question
would not constitute a violation of the Convention.
The Court has established a number of questions which need to be addressed in
order to ascertain whether there has been a violation of the substantively
qualified rights:
1.
2.
3.
4.
Do the facts disclose a protected right and what is the nature of that right?
Is there (or would there be) an interference with that rights?
Is the interference in accordance with the law?
Is the interference in pursuit of a legitimate aim?
Key concepts on the European Convention on Human Rights
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5. Is the interference proportionate to the legitimate aim?
Source: Training Manual ECHR, Nuala Mole and others, 2007
2.4 Rights relating to the administration of justice
This category of rights include Articles 5, 6, and Articles 1, 2, 3 and 4 of Protocol
7.
Source: Training Manual ECHR, Nuala Mole and others, 2007
2.5 Rights with inherent restrictions
The rights in this category are restricted by their own formulation; examples are
Article 12, and Articles 1, 2 and 3 of Protocol 1.
Source: Training Manual ECHR, Nuala Mole and others, 2007
3. Key concepts
3.1 Association (Article 11 § 1)
A general capacity for all persons to join with others for a particular purpose
whether a trade union, political party or simply chess club. Chassagnou v France
(1999)
Source: Training Manual ECHR, Nuala Mole and others, 2007
3.2 Democratic values
In its judgments the Court has underlined that the interpretation of the Convention
must be consistent with the underlying principles, such as the rule of law and
democratic values.
See for example the judgment Soering v. UK (7 July 1989, para. 87):
‘87. In interpreting the Convention regard must be had to its special character as
a treaty for the collective enforcement of human rights and fundamental
freedoms (see the Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 90, § 239). Thus, the object and purpose of the Convention as
an instrument for the protection of individual human beings require that its
provisions be interpreted and applied so as to make its safeguards practical and
effective (see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37, p.
16, § 33). In addition, any interpretation of the rights and freedoms guaranteed
Key concepts on the European Convention on Human Rights
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has to be consistent with "the general spirit of the Convention, an instrument
designed to maintain and promote the ideals and values of a democratic society"
(see the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976,
Series A no. 23, p. 27, § 53).’
3.3 Effectiveness
“Effectiveness” of remedies in the sense of Article 13
The protection afforded by Article 13 is not absolute, some limitations on the
conceivable remedy being inherent in the context in which an alleged violation –
or category of violations – has occurred. In such circumstances the Court does
not treat Article 13 as being inapplicable but treats its requirement of an “effective
remedy” as meaning “a remedy that is as effective as can be, having regard to
the restricted scope for recourse inherent [in the particular context]” (Klass and
Others v. Germany (1978)). In the Klass case, and a number of other similar
cases, the context has been the tapping of telephone lines or the surveillance of
the applicant in connection with a criminal investigation. In these cases, the Court
has noted that such measures would be of little utility if the individual who was
the subject of them was aware that they were taking place. It none the less has
considered that “effectiveness” in this context requires such protections for the
individual as notification that surveillance measures were applied to him or her at
a reasonable point after the grounds necessitating the surveillance have ceased,
recourse to an independent authority to contest the surveillance or its effects on
protected rights, the possibility to bring a civil claim for any damage suffered as a
result of the surveillance, and so forth. Also in this context, the Court has held
that the exclusion at trial of evidence gained through any unlawful surveillance
activity is necessary but not sufficient as a remedy for any violation of the right to
private life that may have occurred (Khan v. the United Kingdom (2000) and
Taylor-Sabori v. the United Kingdom (2002)).
In a series of cases in which the applicants were subjected to extradition or
deportation on the basis of grounds asserted by executive authorities, the Court
has held that “effectiveness” requires that a decision to this effect by an
executive authority must be subject to independent review in an adversarial
proceeding before a body with the capacity to review the factual basis for the
grounds asserted by the executive, to balance the public interest asserted by the
State with the individual right at issue and to reject the executive’s assertion in
this regard (see, for example, Chahal v. the United Kingdom (1996), Jabari v.
Turkey (2000) and Al-Nashif v. Bulgaria (2002)). With respect to expulsions from
a State Party, the effectiveness of a remedy also presupposes that the remedy
available can prevent the execution of measures contrary to the Convention,
where the consequences of those measures would be irreversible (Cˇonka v.
Belgium (2002) (violation of Article 13 and Article 4 of Protocol No. 4, prohibiting
the collective expulsion of aliens)).
Key concepts on the European Convention on Human Rights
41
In a few cases, the Court has considered the “effectiveness” of a remedy in light
of the impossibility of challenging the operation of a domestic law or regulation
that, on its face, violates a protected right under the Convention. For example, in
the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom (1985), the
three applicants, women with permanent resident status in the United Kingdom,
challenged immigration regulations which permitted men with the same status to
bring their spouses into the country but prohibited women from doing so.
Because the regulations were explicit on this point and because no possibility
existed to request that they be overridden in particular cases, the Court found a
violation of the rights of the women to an effective domestic remedy under Article
13. Similarly, the Court found a violation of Article 13 where domestic prison rules
themselves were contrary to the Convention, for example, with respect to
restrictions placed on certain types of correspondence (see, for example,
Campbell and Fell v. the United Kingdom (1984)). However, in most cases
claiming violations of Article 13 with respect to control or censorship of the
correspondence of persons in detention, the Court has found violations based on
the delegation of the power to exercise discretion in this area to officials in
charge of detention facilities, coupled with the failure to provide any recourse
against arbitrary or unduly restrictive actions they may take in this regard.
Subject to compliance with the requirements of the Convention, Contracting
States are afforded some discretion as to the manner in which they provide the
relief required by Article 13 (Kaya v. Turkey (1998)). However, although the
scope of the Contracting States’ obligations under Article 13 varies depending on
the nature of the applicant’s complaint, the remedy required by Article 13 must be
“effective” in practice as well as in law (I. lhan v. Turkey (2000)). This
requirement has led the Court to find that a claim based on the constitutional
right to justice and to litigate does not constitute an effective domestic remedy for
excessively long proceedings for the purposes of Article 13 of the Convention
(Doran v. Ireland (2003)). The Court has interpreted the term “effective” to mean
that the remedy must be adequate and accessible and that it must itself meet
requirements of speediness (Paulino Tomás v. Portugal (2003)). Where an
individual claims that available domestic remedies are ineffective, the Court has
held that the respondent Government must show their effective application in one
or more similar cases (Vereinigung demokratischer Soldaten Österreichs and
Gubi v. Austria (1994), Valsamis v. Greece (1996) and Efstratiou v. Greece
(1996)).
Source: Short Guide to the European Convention on Human Rights, Donna
Gomien, 2005
See also: Silver v. UK, judgment 25 March 1983:
“113. The principles that emerge from the Court’s jurisprudence on the
interpretation of Article 13 (art. 13) include the following:
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(a) where an individual has an arguable claim to be the victim of a violation of the
rights set forth in the Convention, he should have a remedy before a national
authority in order both to have his claim decided and, if appropriate, to obtain
redress (see the above-mentioned Klass and others judgment, Series A no. 28,
p. 29, § 64);
(b) the authority referred to in Article 13 (art. 13) may not necessarily be a judicial
authority but, if it is not, its powers and the guarantees which it affords are
relevant in determining whether the remedy before it is effective (ibid., p. 30, §
67);
(c) although no single remedy may itself entirely satisfy the requirements of
Article 13 (art. 13), the aggregate of remedies provided for under domestic law
may do so (see, mutatis mutandis, X v. the United Kingdom judgment, Series A
no. 46, p. 26, § 60, and the Van Droogenbroeck judgment of 24 June 1982,
Series A no. 50, p. 32, § 56);
(d) neither Article 13 (art. 13) nor the Convention in general lays down for the
Contracting States any given manner for ensuring within their internal law the
effective implementation of any of the provisions of the Convention - for example,
by incorporating the Convention into domestic law (see the Swedish Engine
Drivers’ Union judgment of 6 February 1976, Series A no. 2O, p. 18, § 50).
It follows from the last-mentioned principle that the application of Article 13 (art.
13) in a given case will depend upon the manner in which the Contracting State
concerned has chosen to discharge its obligation under Article 1 (art. 1) directly
to secure to anyone within its jurisdiction the rights and freedoms set out in
section I (see Ireland v. the United Kingdom judgment, Series A no. 25, p. 91, §
239). »
3.4 Fourth instance
The European Court is not a further court of appeal – a fourth instance- for
applicants which do not agree with the final decision on national level. The
European Court’s role is not to assess if an error in law or fact was made. Such a
complaint would be declared inadmissible ratione materiae.
3.5 Horizontal effect
One aspect of positive obligations is to impose an obligation on the State to
regulate relations between private individuals and so in this way the rights can
have a “horizontal” and not just a “vertical” effect.
3.6 Incompatibilities
The Court has established four circumstances where an application will be found to
be incompatible with the Convention. These are:
3.6.1 Incompatible ratione temporis: the Convention is not binding on the
State at the time of the events complained of.
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3.6.2 Incompatible ratione loci: the complaint relates to a place where the
Convention is not binding.

This ground of incompatibility can raise interesting jurisdictional
points, but it has mainly involved circumstances where the applicant
has complained of matters within an overseas territory for which the
contracting state has not accepted the right of individual petition.
3.6.3 Incompatible ratione personae: the complaint relates to a person not
bound by the Convention, or over whom the Convention organs have no
jurisdiction.





This ground for dismissing an application is more frequently relied upon
by the Strasbourg institutions.
For example, it will be relied upon where a compliant is made against
an individual or a body for which the state is not responsible.
It therefore raises fascinating questions as to the extent to which the
Convention can be held to regulate the conduct of non-state actors.
There is therefore a close relationship between this ground for rejecting
applications and the state’s positive obligations to promote and protect
convention rights [see for example Earl Spencer and Countess
Spencer v UK (Decision 16 January 1998)].
This ground for rejecting an application will also be relied upon if the
applicant lacks standing to bring the application or is unable to show
that she or he is a victim of the alleged violation
3.6.4 Incompatible ratione materiae: the complaint relates to a right not
provided by the Convention.




If the application asserts a violation of a right which is not protected by
the Convention, it will be rejected on this ground.
For example, cases have been rejected on the right to be granted a
driving license [X v Germany], the right to a free choice of doctor [B.C.
v Switzerland (Decision 27 February 1995)].
Similarly, an application will be rejected on this ground if the complaint
falls outside of the scope of the particular right invoked.
For example, in relation to the right to a fair trial the dispute in issue
may not amount to a determination of a civil right but be more of a
dispute concerning public law.
3.7 Just satisfaction
Article 41 of the European Convention on Human Rights provides that if a High
Contracting Party is in breach of its obligations under the Convention, and if its
domestic law does not provide for adequate reparation of that breach, then “the
Court shall, if necessary, afford just satisfaction to the injured party”. In many
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cases, the Court has found that the finding of a violation is in itself just
satisfaction and in others that a token amount of money is sufficient. On the other
hand, in some cases the Court awards substantial sums of money to successful
applicants, including interest when the government unduly delays payment. On
occasion, the Court has suggested that the most appropriate form of just
satisfaction would be the return of unlawfully expropriated property to an
applicant. Costs may also be awarded under Article 41.
The European Convention on Human Rights
The Court will usually address claims for just satisfaction under Article 41 in its
judgment on the substantive aspects of the case. However, if the question is not
then ready for decision, the Court may reserve it for a subsequent judgment.
Source: Short Guide to the European Convention on Human Rights, Donna
Gomien, 2005
3.8 Law – quality of law
To meet the Convention requirement that an interference is “ in accordance with the
law” or “prescribed by law” that law must be precise and ascertainable so that an
individual may regulate his conduct by it. A law authorising interferences should not
be so broadly couched that it would permit interferences which would violate the
Convention.
Source: Training Manual ECHR, Nuala Mole and others, 2007
3.9 Living instrument
The text of the Convention is only the starting point in understanding the rights and
freedoms protected by the Convention. The content and meaning of the rights set
out have been developed over time by the European Court of Human Rights (and
previously the European Commission) and so in order to fully understand the scope
and manner in which the rights contained must be protected it is necessary to refer
to the case law.
The Convention is seen as a “living instrument” and must be given a “dynamic
interpretation”. Many of the terms used in the Convention contain value judgments
or moral standards which necessarily evolve and change over time. This means
that the content of the rights can change over time and so as a result in applying
the rights guaranteed by the Convention the Court will have regard to the
developments in the contracting states and changing attitudes. In Tyrer v. United
Kingdom (1978) 2 E.H.R.R. the Court said:
“…that the convention is a living instrument which … must be interpreted in the light
of present-day conditions.”
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That case concerned judicially ordered corporal punishment. Other examples
include the changing attitudes towards homosexuality (e.g. Dudgeon v. United
Kingdom 1981) children born out of wedlock (e.g. Johnston v. Ireland, 1986),
transsexuals (e.g. Goodwin v. United Kingdom, 2002), and equality of the sexes
(e.g. Schuler-Zgraggen v. Switzerland, 1993).
The Court can, and has, overturned previous case law in order to give the
Convention its dynamic interpretation, it is therefore necessary to ensure that
reference is made to the most recent case law on an Article – the older cases will
not necessarily provide the correct interpretation to be given to a right and no strict
doctrine of precedent applies.
3.10 Margin of appreciation
The margin of appreciation is basically “the amount of latitude left to the national
authorities once the appropriate level of review has been decided by the Court”. It is
a doctrine which reflects the fact that it is national authorities, including the courts,
who have the primary role of protecting human rights, with the European Court
having a supervisory role. The concepts allows for a certain discretion to be left to
the national authorities particularly where difficult issues of social, moral or
economic policy are involved on which there is no clear European consensus.
From James v. UK:
“46. Because of their direct knowledge of their society and its needs, the national
authorities are in principle better placed than the international judge to appreciate
what is "in the public interest". Under the system of protection established by the
Convention, it is thus for the national authorities to make the initial assessment
both of the existence of a problem of public concern warranting measures of
deprivation of property and of the remedial action to be taken (see, mutatis
mutandis, the Handyside judgment of 7 December 1976, Series A no. 24, p. 22,
para. 48). Here, as in other fields to which the safeguards of the Convention
extend, the national authorities accordingly enjoy a certain margin of
appreciation.
Furthermore, the notion of "public interest" is necessarily extensive. In particular,
as the Commission noted, the decision to enact laws expropriating property will
commonly involve consideration of political, economic and social issues on which
opinions within a democratic society may reasonably differ widely. The Court,
finding it natural that the margin of appreciation available to the legislature in
implementing social and economic policies should be a wide one, will respect the
legislature’s judgment as to what is "in the public interest" unless that judgment
be manifestly without reasonable foundation. In other words, although the Court
cannot substitute its own assessment for that of the national authorities, it is
bound to review the contested measures under Article 1 of Protocol No. 1 (P1-1)
and, in so doing, to make an inquiry into the facts with reference to which the
national authorities acted.”
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3.11 Necessary (in a democratic society)
Restrictions must be “necessary in a democratic society”
In many situations a balancing act that has to be carried out between the
Convention rights of two or more individuals - for example, one persons
Convention right to respect for private life may have to be balanced against
another’s Convention right to freedom of expression. This will often occur in
disputes in family law or between landlord and tenant. The interests of the
community as a whole may have to be balanced against the rights of an
individual – the compulsory acquisition of property by the state for e.g. road
building is a classic example.
Source: Training Manual ECHR, Nuala Mole and others, 2007
For example in the judgment Silver v UK, (25 March 1983) the Court gave an
explanation of its understanding of the phrase:
‘97. On a number of occasions, the Court has stated its understanding of the
phrase "necessary in a democratic society", the nature of its functions in the
examination of issues turning on that phrase and the manner in which it will
perform those functions. It suffices here to summarise certain principles:
(a) the adjective "necessary" is not synonymous with "indispensable", neither has
it the flexibility of such expressions as "admissible", "ordinary", "useful",
"reasonable" or "desirable" (see the Handyside judgment of 7 December 1976,
Series A no. 24, p. 22, § 48);
(b) the Contracting States enjoy a certain but not unlimited margin of appreciation
in the matter of the imposition of restrictions, but it is for the Court to give the final
ruling on whether they are compatible with the Convention (ibid., p. 23, § 49);
(c) the phrase "necessary in a democratic society" means that, to be compatible
with the Convention, the interference must, inter alia, correspond to a "pressing
social need" and be "proportionate to the legitimate aim pursued" (ibid., pp. 2223, §§ 48-49);
(d) those paragraphs of Articles of the Convention which provide for an exception
to a right guaranteed are to be narrowly interpreted (see the above-mentioned
Klass and others judgment, Series A no. 28, p. 21, § 42).
98. The Court has also held that, in assessing whether an interference with the
exercise of the right of a convicted prisoner to respect for his correspondence
was "necessary" for one of the aims set out in Article 8 § 2 (art. 8-2), regard has
to be paid to the ordinary and reasonable requirements of imprisonment (see the
above-mentioned Golder judgment, Series A no. 18, p. 21, § 45). Indeed, the
Key concepts on the European Convention on Human Rights
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Court recognises that some measure of control over prisoners’ correspondence
is called for and is not of itself incompatible with the Convention.’
3.12 Penalty (Article 7)
A measure imposed following a conviction for a criminal offence. Whether or not
a measure is a “penalty” will depend on its nature and purpose, its
characterisation in domestic law, the procedures involved in its making and its
severity, e.g. obligation on released sex offender to register with police is not a
penalty, nor is deportation following a criminal conviction. Welch v the United
Kingdom (1995), Jamil v France (1985), Adamson v the United Kingdom (1999),
Uner v the Netherlands (2006).
Source: Training Manual ECHR, Nuala Mole and others, 2007
3.13 Physical and moral integrity
In X & Y v. the Netherlands (judgment of 26 March 1985, para. 22) the Court held
that private life is a concept which covers the physical and moral integrity of the
person, including his or her sexual life. In that case, the inability of a 16-year-old
girl with a mental disability to institute criminal proceedings against the
perpetrator of a sexual assault against her was found to raise an issue under
Article 8 para. 1. An unwelcome attack by one individual on another is thus
capable of infringing the private life of the latter.
3.13.1 Will all interference with physical integrity concern private life?
While some interferences with the physical integrity of an individual may impinge
on the private life of that person, not all such actions will do so.
Costello-Roberts v. the United Kingdom (judgment of 25 March 1993, para. 36)
concerned the compatibility with Article 8 of the corporal punishment of a little
boy. Here, the Court noted that
“measures taken in the field of education may, in certain circumstances, affect
the right to respect for private life but not every act or measure which may be
said to affect adversely the physical or moral integrity of a person necessarily
gives rise to such an interference.”
However, in this case, it went on to conclude that
“having regard … to the purpose and aim of the Convention taken as a whole,
and bearing in mind that the sending of a child to school necessarily involves
some degree of interference with his or her private life, the Court considers that
the treatment complained of by the applicant did not entail adverse effects for his
physical or moral integrity sufficient to bring it within the scope of the prohibition
contained in Article 8.”
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Both the slight nature of the punishment and the fact that it had been imposed in
the formal school environment were central to the Court’s decision in this case.
3.13.2 Does compulsory medical treatment concern private life?
Compulsory medical treatment, regardless how minor, will fall within the scope of
private life under Article 8 para. 1. Examples include:
-
-
Blood and urine tests imposed on prisoners to check for drugs, drivers to
check for alcohol in the system or those involved in paternity proceedings;
(appl. No. 8278/78, 13 December 1979, 18 DR 154 (bloodtest); appl. No.
21132/93, Peters v. the Netherlands, 6 April 1994, 77-A DR 75 (urine test)
Compulsory vaccination, dental treatment, TB tests or X-rays for children;
(appl. No. 10435/83, 12 July 1978, 14 DR 31)
Compulsory administering of food. (Herczegfalvy v. Austria, judgment of
24 September 1992)
3.13.3 Do safety measures imposed by the State concern private life?
The numerous measures which the State takes to protect the public against
various dangers, such as making the wearing of seatbelts or use of safety
appliances in industry compulsory, will also fall to be examined under Article 8
para. 1 although they will almost certainly be justifiable under the second
paragraph.
Source: CoE, Human Rights handbooks No 1, The right to respect for private and
family life
3.14 Positive obligations
The Convention principally protects individuals from violations of their rights by the
state, but in addition to the negative protection of rights (i.e. requiring states and
their officials to refrain from interfering with the rights set out) in some
circumstances the Convention also imposes positive obligations on the state to
ensure that the rights are protected. Therefore a right can be violated by the state’s
failure or omission to act. For example the state is under a positive obligation to
legislate in order to protect the right to life – so a state must have laws in place to
prosecute those guilty of murder and manslaughter.
Positive obligations arise mainly by virtue of the obligation under Article 1 of the
Convention to “secure to everyone within their jurisdiction” the rights set out in the
Convention. But the positive obligation is in some cases is explicit in the Article
itself – for example Article 2 provides that the right to life “shall be protected by law”
Key concepts on the European Convention on Human Rights
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and Article 6 imposes an obligation to establish courts which operate within a
reasonable time and provide interpreters and legal aid in criminal proceedings.
A positive obligation may also arise where the State has delegated its responsibility
under the convention to a private body. For example in Costello-Roberts v. United
Kingdom (1993) 19 E.H.R.R 112, the European Court found that the UK would be
liable for abusive corporal punishment, amounting to inhuman and degrading
punishment, not only in state schools (schools funded by the state) but also in
private schools (schools where the pupils pay privately for their education).
3.14.1 Horizontal effect
One aspect of positive obligations is to impose an obligation on the State to
regulate relations between private individuals and so in this way the rights can have
a “horizontal” and not just a “vertical” effect.
3.15 (Inherent) Procedural safeguards
The principle of effectiveness and procedural guarantees
The Convention obliges states to have in place and to observe appropriate
procedural guarantees to ensure the effective protection of the substantive rights.
In some cases those procedural guarantees are expressly spelt out in the text of
the Convention.
In other cases the Court has held that the substantive rights must be held to
include “ inherent procedural safeguards.”
The Court will frequently find that no violation of a substantive right has been
made out, but that there ahs been a violation of the associated procedural
guarantees.
3.15.1 Procedural guarantees expressly provided by the text of the
Convention
Article 5 – deprivation of liberty
Article 6 – fair trial
Article 13 – right to a remedy
Protocol 7 Article 1 expulsion of lawfully resident foreigners Maaouia v
France 1999.
o Protocol 7 Article 2 right of appeal in criminal matters: Krombach v France
(2001); Papon v France (2002); Gurepka v Ukraine (2005).
o Protocol 7 Article 3 - compensation for miscarriages of justice: Shilyayev v
Russia (2005).
o Protocol 7 Article 4 – prohibition on double jeopardy: Franz Fischer v
o
o
o
o
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Austria(2001)
3.15.2 Procedural guarantees recognised in the caselaw of the Court
as inherent in substantive rights
o duty to carry out an effective investigation
o inherent in Article 2, where there has been loss of, or threats to, life
e.g.; Akdogdu v Turkey (2005);
o inherent in Article 3 in cases of allegations of ill-treatment (article:
Nachova v Bulgaria (2005);
o duty to provide appropriate judicial proceedings e.g
(1) duty under Articles 2 and 3 to provide effective criminal sanctions in
cases of grave violations to the right to life and to the integrity of
individuals: M.C v Bulgaria (2003); Öneryildiz v Turkey (2004) but civil
proceedings may suffice in cases of medical negligence: Calvelli and
Ciglio (2002); Vo v France (2004);
(2) duty under Article 8 to provide access to judicial procedures in family
matters: Ignoccolo-Zenide v Romania (2000);
(3) duty under Article 1 Protocol 1 to provide access to a tribunal in cases
of violation to the enjoyment of one’s possessions: Sovtransavto v
Ukraine (2002).
o General duty under Article 6 to enforce final judicial decisions Hornsby v
Greece (1997). Enforcement must occur automatically in cases against
the state. But in litigation between private persons it may be incumbent on
those persons to take further steps to secure enforcement. Where the
decisions affect other Convention rights this duty may also exist under
those rights e.g.:
o Under Article 1 of Protocol 1: Burdov v Russia (2002); Jasiūnienė v
Lithuania (2003); Sabin Popescu v Romania (2004); Matteus v
France (2005).
o Under Article 8: Glaser v the United Kingdom (2000); Ignaccolo
Zenide v Romania (2000)
3.15.3 Procedural safeguards at international level
 Article 34 - 35 and the right of individual petition ( NB check for coming
into force of Protocol 14)
 Admissibility criteria as they apply to aliens issues, especially exhaustion
of domestic remedies
 Rule 39 indications
 Rule 40 urgent communication
 Time of assessment of risk by the Court
Source: Training Manual ECHR, Nuala Mole and others, 2007
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3.16 Proportionality
The principle of proportionality is ‘the search for a fair balance between the
demands of the general interest of the community and the requirements of the
protection of the individual’s fundamental rights’ (judgment Soering v. UK, par. 89)
3.17 Rule of law
The rule of law is the principle that the exercise of public powers is only
legitimated when it is in accordance with publicly disclosed laws, adopted and
enforced in accordance with existing laws and procedures. The principle is a
safeguard against arbitrary use of power by public autorities.
The rule of law implies that an interference by the authorities with an individual’s
rights should be subject to effective control (see, inter alia, Silver v. UK, judgment
of 25 March 1983 and Klass and others, judgment of 6 September 1978,). This is
especially so where the law bestows on the executive wide discretionary powers,
the application whereof is a matter of practice which is susceptible to modification
but not to any Parliamentary scrutiny (source: Silver v. UK).
3.18 Subsidiarity
The contracting States undertake to “secure to everyone within their jurisdiction the
rights and freedoms defined in Section 1 of this Convention” (Article 1 ECHR).
Therefore it is in the first place the responsibility of the contracting State to ensure
that the rights and freedoms as laid down in the Convention are respected and to
provide for an effective remedy if somebody claims that his/her rights are violated
(see Article 13 ECHR). The European Court’s role is subsidiary to the national
systems to protect human rights and redress violations. Only when all national
remedies have been exhausted (Article 35) an application can be lodged at the
European Court.
Source: Training Manual ECHR, Nuala Mole and others, 2007
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