2.3 Application of the ECHR
The ECHR places an important emphasis on individual rights whilst trying to strike a balance between individual and collective rights.
Activity 1 Drafting a charter of rights
Imagine that you are on a team representing the UK at international negotiations. The team is negotiating a new international charter with the aim of guaranteeing specific rights to individuals. What specific rights would you seek to include?
Often the specific individual rights we value are a result of our own experiences. Our education, family, social peer group, beliefs and values, societal norms and culture influence us. These influences impact on our priorities and reactions. Imagine the challenges of getting a group of 10 diverse individuals to agree something as simple as whether all would like either a hot or a cold beverage and then imagine the challenges of getting governments to agree to a binding international agreement on their citizen's rights. An agreement is much more likely to be reached if documents contain wide provisions.
Compare the rights you have listed with the list of rights contained in the ECHR in Table 1. You are unlikely to have produced a list that covers all the rights listed in the Convention and it is likely that some of the rights you may have listed may not be shown. This is because some rights are implied within other rights, for example, a suspect's right to silence is covered by the right to a fair trial (Article 6).
Table 1 European Convention articles and corresponding rights
|Article of ECHR||Right|
|2||Right to life|
|3||Right to be free from torture and from inhuman and degrading treatment|
|4||Freedom from slavery and enforced labour|
|5||Liberty of the person|
|6||Right to a fair trial|
|7||Freedom from retrospective punishment|
|8||Right to respect for private and family life, home and correspondence|
|9||Freedom of thought, conscience and religion|
|10||Freedom to receive and impart ideas and information|
|11||Freedom of association|
|12||Right to marry and found a family|
|13||Right to an effective remedy|
|14||Right to enjoy other Convention rights without discrimination|
|Protocol 1 Article 1*||Right to peaceful enjoyment of possessions|
|Protocol 1 Article 2||Right to education|
|Protocol 1 Article 3||Right to free and fair elections|
|Protocol 4 Article 1||Prohibition of imprisonment for debt|
|Protocol 6 Article 1||Abolition of the death penalty|
|Protocol 7 Article 2||Right to appeal on conviction or sentence|
|Protocol 7 Article 3||Right to compensation for victims of miscarriages of justice|
You will discover more about some of these rights. Some of the rights in the ECHR are regarded as absolute, and are fundamental human rights. Member states cannot create any exceptions to these rights. Some rights are limited; this means that limitations are allowed to certain rights if they are necessary in a democratic society and prescribed by law. To give you some examples: the right to life, the right to freedom from slavery and enforced labour and the right to a fair trial are regarded as absolute rights; the right to respect for private and family life and freedom of association are limited rights.
Any restrictions to limited rights must follow two important principles: if they are to be valid they must have legality and they must be proportionate.
The tests for legality:
Is there a legal basis for the restriction?
Can the person suffering the restriction gain access to the rule that restricts their right?
Is the restriction certain and reasonably foreseeable?
Legality is expressed in the phrases ‘in accordance with the law’, ‘lawful’ and ‘prescribed by law’.
The tests for proportionality:
What is the interest that is relied on?
Does it correspond to a pressing social need?
Is the interference proportionate to the interest?
Are the reasons given by the authorities relevant and sufficient?
These are expressed in phrases such as ‘necessary in a democratic society’. Here the rights of the individual and the whole community are being balanced.
Member states may also seek to make derogations from their obligations in times of war or national emergency that threaten ‘the nation’. They may also seek to make reservations. This is undertaken where there is an existing domestic law which does not conform to the European Convention on Human Rights (Protocol 6, the abolition of the death penalty is the only right to which a reservation cannot be made).