European Convention of the human rights

The European Convention of the human rights was adopted by the the Council of Europe in 1950 and is coming into effect in 1953.

This international legal text has as an aim of protection the Human rights and the Fundamental freedoms by allowing a judicial control of the respect of these rights Individu els. It refers to the Universal declaration of the human rights, proclaimed by the General meeting of the the United Nations the December 10th 1948.

To allow this control of the effective respect of the human rights, Convention instituted the European Cour of the human rights (installation in 1959) and the Comité of the Ministers of the Council of Europe.

Convention evolved/moved with the wire of time and includes/understands several protocols. For example, the protocol n°6 prohibits the capital punishment, except in the event of war.

Protocols

In 2002, thirteen protocols with Convention were opened with signature.

Protocols amending Convention

All the provisions which had been amended or added by these protocols are replaced by the protocol n° 11 (CO. n° 155), as from the date of its coming into effect the 1 {{er}} November 1998. As from this date, the protocol n° 9 (CO. n° 140), come into effect on October 1st, 1994, is repealed and the protocol n° 10 (CO. n° 146) became without object.

The text of Convention was amended several times.

The principal protocols are the following:

Protocol n° 3 (CO. n° 45, adopted the May 6th 1963),
Protocol n° 5 (CO. n° 55, adopted the January 20th 1966),
Protocol n° 8 (CO. n° 118, adopted the March 19th 1985),
Protocol n° 9 (CO. n° 140, adopted the November 6th 1990),
Protocol n° 10 (CO. n° 146, adopted the March 25th 1992)
Protocol n° 11 (CO. n° 155, adopted the May 11th 1994), is most important.

The protocol n° 2 (CO. n° 44, adopted the May 6th 1963), although it does not amend the text of Convention as such, stipulates that it must be regarded as an integral part of Convention, and was consolidated in Convention by the protocol n° 11.

The protocol n° 11 institutes a fundamental change in the mechanism of Convention. As indicated higher, the Commission was abolished, and the natural persons were authorized to seize the Court directly. That required changes in the organization of the Court, to enable him to play its new wider part. The protocol n° 11 also abolished all the legal functions of the committee of the ministers. The protocol n° 11 also made necessary of the amendments to the protocols which had extended the substantial rights.

The other protocols (n° 1,4,6,7,12 and 13) added substantial rights to those already protected by Convention, which are exposed lower, following those contained in Convention itself.

Convention includes/understands five principal sections. The section I, which includes/understands articles 2 to 18, states the principal rights and freedoms. In the beginning, Section II (article 19) established the Commission and the Court, Sections III (articles 20 to 37) and IV (articles 38 to 59) define, respectively, the procedures of work of the Commission and the Court, and the Section V contains various provisions.

Many articles of Section I are structured in two paragraphs: the first defines the rights or freedoms while the second states the exceptions and limitations with the basic rights (thus article 2-1 defines the right to the life, while part 2-2 states the exceptions where the use of the force can result in deaths).

Article n° 4: prohibition of slavery

The article n° 4 interdict the Slavery and the Forced labor. However this prohibition does not apply to the Conscription, the national service, work in prison, the services imposed in the event of urgency or of calamity, and to the “ normal civic obligations ”.

Article n° 5: right to freedom and safety

The article n° 5 declares the right of each one to freedom and the guarantee.

Freedom

The article n° 5 defines the right to the Liberté, only subjected to some legal exceptions which authorize the arrest in defined circumstances, such as the arrest of people suspected of criminal acts, or the imprisonment of people condemned by a Tribunal. The article lays down also the right to be informed, in a language which one understands, of the reasons of the arrest and the loads retained against oneself, right of recourse fast in front of a court to determine the legality of the arrest or detention, right to be judged within a reasonable delay or released within the framework of the procedure, as well as the right to compensation in the event of arrest or of detention in violation of this article.

Guarantee

The concept of Guarantee was not the subject yet of interpretation by the Court. It however was the subject of comments emitted by the Supreme court of Canada by distinguishing the concept of “Freedom”. In the business opposing J.G to the Minister for Health, the CSC retained that the right to the guarantee of the plaintiff had been violated by the province of the Nouveau Brunswick. The Court qualified removal by a State of the child of a person of gravely hurt to the psychological integrity of the relative. It is consequently an exceptional recourse which can be employed only in agreement with the principles of fundamental justice, and constitutes, if it is not the case, a violation of the right to the guarantee.

Article n° 6: right to a fair trial

The article n° 6 in detail defines the Droit to a fair trial, including the right to a public sitting in front of an independent and impartial court, the Présomption of innocence, and other rights secondary (of time and facilities to prepare its defense, the assistance of a lawyer, the possibility of making question witnesses, free assistance of an interpreter).

Article 6 - Right to a fair trial (1)

Any person is entitled so that its cause is heard equitably, publicly and within a reasonable delay, by an independent and impartial court, established by the law, which will decide, either of the disputes on its rights and obligations of civil nature, or of the cogency of any penal matter charge directed against it. The judgment must be returned publicly, but the access of the courtroom can be prohibited with the press and the public during totality or part of the lawsuit in the interest of morality, the law and order or the national security in an democratic society, when interests of the minors or the protection of the private life of the parts to the lawsuit require it, or in the measurement considered to be strictly necessary by the court, when in special circumstances publicity would be likely to attack the interests of justice.
Any person marked of an infringement is supposed innocent until its culpability was legally established.
Any defendant has right in particular to:
: a. informed being, as soon as possible, in a language which it understands and in a detailed way, nature and cause of the charge carried against him;
: B. to have of time and the facilities necessary to the preparation of its defense;
: C. to defend itself or to have the assistance of a defender of his choice and, if it does not have the means of remunerating a defender, to be able to be assisted free by a lawyer of office, when the interests of justice require it;
: D. to question or make question the witnesses for the prosecution and obtain the convocation and the interrogation of the witnesses for the defense under the same conditions as the witnesses for the prosecution;
: E. to be made assist interpreter free, if it does not include/understand or the language employed with the audience does not speak.

Article n° 7: legality of the sorrows

At first sight, the article n° 7 interdict very blamed retroactive. However, its short title is regarded as component a substantial part of the article.

legality of the sorrows

The article n° 7 states the principle Nullum crimen, nulla poena sine light , i.e. no one cannot be continued for an infringement which was not defined like such at the time of the facts. That implies that the law must be certain and verifiable.

Prohibition of the retroactive laws

The article n° 7 interdict the retroactive criminal qualification of acts. No one cannot be punished for an act which was not regarded as an infringement at the time when it was made. This article lays out that an infringement is established either in national right, or in international law, which authorizes the engagement of continuations against that which would have made an act not described as illegal by the laws of its country at the time of the facts, but which was a crime taking into consideration use in international law. The article n° 7 interdict also that a sorrow heavier is marked than that which was applicable to the moment of the facts complained of the accused.

Article n° 8: right to the respect of the private life

The article n° 8 defines the right to the respect “ of its family Private life and, of its residence and its correspondence ”. This right is however prone to restrictions “ envisaged by the law ” and “ necessary, in an democratic society ”. This article clearly establishes a protection against illegal research, but the Court gave to protection “ private life and family ” defined in this article a rather broad interpretation, considering for example that the prohibition of consensual and deprived homosexual acts viol this article. That can be compared with the jurisprudence of the Supreme court of the United States, which also adopted a rather broad interpretation of the right to the respect of the private life.

Article n° 9: freedom of thought, of conscience and religion

The article n° 9 defines the right to the Freedom of thought, of conscience and religion. That includes/understands also freedom to change religion or convictions, and to express its religion or its convictions by the worship, teaching, the practices and the rites.

Article n° 10: right to freedom of expression

The article n° 10 defines the right to the Freedom of expression, which is subjected to certain restrictions “ envisaged by the law ”; this right includes/understands “ the freedom of thought and freedom to receive or communicate information or ideas without there being able to be interference of public authorities and without consideration of border ”.

Article n° 11: right to freedom of meeting and association

The article n° 11 protects the right to the Right to meet and of association, including the right to form Syndicat S. It is prone however to certain restrictions “ envisaged by the law ” and which are “ necessary measures, in an democratic society ”. Article 11 also protects, at the end of the jurisprudence of CourEDH, the right of not-association.

Article n° 12: right to the marriage

The article n° 12 defines the right for the man and the woman to marry, at the age defined by the law, and to be based a family.

In spite of many sasines, the Court has until now refused to apply the provisions of this article to the homosexual marriages. The Court justified this position by considering that this article applied only to the traditional marriage, and that a broad margin of appreciation was to be left in the States in this field.

Article n° 13: right to an effective recourse

The article n° 13 defines the right to an effective recourse in front of the national authorities in the event of violation of rights protected by Convention. The incapacity to obtain a recourse in front of an national authority for a violation of rights of Convention is thus, in oneself, an infringement with Convention, likely of separate continuations.

The right to an effective recourse must always be coupled to another fundamental freedom which must be protected. Indeed, an effective recourse against minor attacks or not raising of competences of the Court does not have a value.

Article n° 14: prohibition of discrimination

The article n° 14 prohibits the Discrimination. This prohibition is at the same time broad and restricted. Indeed, on the one hand, the article prohibits any type of discrimination based on any criterion. The article states a list of these criteria, of which the sex, the race, the color, the language, the religion, the membership of a National minority and several others, and more significantly indicate than this list is not exhaustive. In addition, the field of this prohibition is limited to discrimination taking into consideration right covered by Convention. The Protocol n° 12 extends however this prohibition of discrimination to legal straight, even if those are not protected by Convention, provided that they are it in national right.

Article n° 15: exemptions

The article n° 15 authorizes the contracting States to derogate from the rights guaranteed by Convention in emergency Situation. This possibility was used, for example, by the the United Kingdom to adopt a law authorizing the detention of certain prisoners without judgment (BBC August 4th 2004).

Article n° 16: restrictions on the political activity from abroad

The article n° 16 authorizes the restrictions on the political activity from abroad.

Article n° 17: prohibition of the Abuse right

The article n° 17 lays out that no one cannot use the rights guaranteed by Convention with an aim of seeking the abolition or the limitation of these same rights.

Article n° 18: limitation of the use of the restrictions on the rights

The article n° 18 lays out that any limitation of the rights laid down in Convention can be used only with an aim for which it was defined.

Additional protocols

Protocol n°1: property, education, elections

The article n°1 establishes the protection of the private property. The article n°2 establishes the right to education, and the right of the parents to educate their children in agreement with their religious convictions or others. The article n°3 defines the right to regular, free and right elections.

Protocol n°4: civil imprisonment, displacements, expulsion

The article n°1 prohibits the internment of people due to “ incapacity to fill of the contractual obligations ”. The article n°2 guarantees the right of each one to move freely inside its country, as well as the right to leave its country. The article n°3 prohibits the expulsion of the national nationals. The article n°4 prohibits the collective eviction from abroad.

Protocol n°6: capital punishment

The protocol n°6 request with the recipients to restrict the application of the Capital punishment to the situations of war or urgently main road, which leads to prohibit it in time peace.

Protocol n°7: expulsion, calls criminal, compensation, double incrimination, equality between husband

The article n° 1 interdict the expulsion of “ foreign in regular residence ” except in the event of decisions taken within the framework of the law, and guarantees the right to them to know the reasons for their expulsion and to obtain a re-examination of their case. The article n°2 grants the right of Appel in all the criminal cases. The article n°3 grants compensations in the event of unjustified judgment. The article n°4 prohibits the Double incrimination. The article n°5 affirms the equality between husband.

Protocol n°13 - capital punishment

The protocol n°13 request the total abolition of the Capital punishment, in times of peace as in time of war.

European Convention and European Union

The European Union did not leave to Convention (it does not have the legal personality to ratify treaties, even if the debate on its possible adhesion remains open), but:

the preamble to the Charter of the basic rights of the European Union, declaration not equipped with constraining value, " reaffirm the rights which result in particular from the decisions of the European Court of the rights of the homme".
the Traité on the European Union lays out: " The Union respects the basic rights, such as they are guaranteed by the European Convention of the human rights, signed in Rome on November 4th, 1950 ".

Moreover, even if the Union itself cannot ratify Convention, that does not prevent that all the Member States of the European Union belong to Convention (the respect of the Human rights is a criterion of adhesion to the Union), even if all the Member States of Convention do not form part of the Union (Turkey, Russia…)

Random links: