3.4 The development of the European Convention on Human Rights
The aftermath of the Second World War was a time of great activity in the realms of human rights throughout the world, and the United Nations Charter itself, signed on 26 June 1945, included an obligation on states to respect fundamental human rights and freedoms. The development of an International Bill of Rights was significantly influenced by the commencement of the Cold War. However, that did not prevent the signing of the Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights, both in 1948.
Meanwhile the countries of Western Europe had come to the conclusion that there was a need to prevent any recurrence of the atrocities of the Second World War, to prevent the creation of powerful dictatorships and to set an example of liberty and freedom in contrast to the totalitarianism of the USSR. This gave rise to the creation of the Council of Europe in 1949 (not to be confused with the Council of Ministers in the EU). The Council of Europe energetically set to work on negotiation and formulation of what was intended to become a legally binding convention on human rights for the nations of Europe. The intention was that for the first time human beings within Europe should have human rights enforceable under international law, before a court independent of the nation states, against public authorities. At the same time there was also a movement towards what subsequently become known as the EU.
Box 2: Differences between the ECHR and EU treaties
It is important to remember that the European Convention on Human Rights and the treaties of the EU are quite separate. The European Convention on Human Rights deals with human rights and their enforcement by the institutions created by the Convention. The EU treaties originally dealt with issues connected with trade between the member states. Subsequent treaties have expanded the area of activities covered by the EU treaties, creating laws and regulations which only apply to treaty matters; there are separate institutions created by the EU treaties for dealing with enforcement of these laws and regulations. The European Convention on Human Rights and the EU treaties are separate and distinct. You should, however, note that the member states of the EU agreed that no state would be admitted to membership of the EU unless it accepted the fundamental principles of the European Convention on Human Rights and agreed to declare itself bound by it.
The European Convention on Human Rights was drafted taking the Universal Declaration of Human Rights 1948 as its starting point, but with the pursuit of the aims and objectives of the Council of Europe, through the maintenance and further realisation of human rights and fundamental freedoms, firmly in mind. Once its terms had been agreed it was opened for signature in Rome on 4 November 1950 and took effect once ten of the subscribing states, described as ‘high contracting parties’ (HCPs) in the document, had executed and deposited with the Secretary General of the Council of Europe the necessary instrument of ratification. It entered into force in September 1953.
The European Convention on Human Rights represented the first steps for the collective enforcement of certain of the rights set out in the Universal Declaration since, in addition to defining a list of civil and political rights and freedoms, it created a means of enforcement of the obligations entered into by HCPs. Three institutions or organisations were set up to discharge this responsibility, namely the European Commission of Human Rights (usually referred to as the Commission, which was set up in 1954), the European Court of Human Rights (which was not set up until 1959) and the Committee of Ministers of the Council of Europe (i.e. the respective Minister of Foreign Affairs of each of the member states or their representative).
Whilst the Convention as originally drafted provided for complaints to be brought against HCPs either by another HCP or by individual applicants (which might be either individuals, groups of individuals or non-governmental organisations), the right of individuals to bring complaints was an option for the individual HCP, so that, unless the state opted in, the individual would be prevented from bringing a complaint against the particular state.
The Convention commences with a number of recitals of the aims to be met, and defines the intentions of the HCPs to achieve these aims in recognition of the various rights and freedoms which are set out in the European Convention on Human Rights. The recitals are followed by a number of paragraphs called ‘articles’.
Article 1 of the Convention addresses the obligation cast upon each HCP to ensure that every person within its jurisdiction is granted the rights and freedoms set out in Section I of the Convention.
Activity 3 helps you to revise the articles of the European Convention on Human Rights.
Activity 3: The articles of the European Convention on Human Rights
Drawing on your previous knowledge and the information you have been provided with in this course, please download and print the PDF table below then complete the table by adding a brief summary of the human rights covered by each article. You do not need to use the precise wording of the article and you may not be able to complete all the entries, but try and complete as many as you can.
Click here [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] to open the blank table.
Discussion
Section I of the Convention sets out seventeen articles defining the fundamental rights and freedoms accorded under the European Convention on Human Rights.
Article 2 covers the right to life. This did not originally prohibit the death penalty. Protocol 6 subsequently abolished the death penalty in times of peace. Protocol 13 abolished the death penalty in times of war (and has yet to be ratified by the UK) and provides an example of how the European Convention on Human Rights has responded to social and political change. As you may have seen in the case of Diane Pretty, the European Court of Human Rights ruled that there was no corollary right to die, either with the assistance of a third party or a public authority.
Article 3 covers the prohibition of torture. Case law here has considered the use of hooding, deprivation of sleep, the use of prolonged assaults, deportation, and serious and prolonged mistreatment of children who were in local authority care.
Article 4 covers the prohibition of slavery and forced labour. The court has rarely considered cases brought under Article 4. Cases considered include individuals who have complained about the work they were required to do while they were in detention. In 2019, the Court published a guide on Article 4.
Article 5 covers the right to liberty and security, and many cases have been considered in this area. It covers matters such as bail pending trial, the review of life sentences and parole, and the detention of terrorists or suspected terrorists.
Article 6 covers the right to a fair trial. This is one of the fundamental principles of the European Convention on Human Rights as it relates to the fair administration of justice. Case law has covered the meaning of a criminal charge, access to legal advice, evidence and procedural impartiality.
Article 7 covers the right not to be punished without law. This requires that punishment can only follow from proper proceedings.
Article 8 covers the right to respect for family and private life. Case law here has been wide ranging and has considered questions of rights in relation to choice in sexual relations, press intrusion, prisoners’ letters, police surveillance, the refusal of planning permission, noise pollution, transsexuals and adoption.
Article 9 covers freedom of thought, conscience and religion. Case law here has covered limitations on the practising of religion in prison. This right does not include a right to be free from criticism.
Article 10 covers freedom of expression. Case law here has included injunctions against the printing of stories in newspapers, the seizure of film, the dissemination of information on abortion and pre-trial publicity.
Article 11 covers freedom of assembly and association. Case law here has generally involved union membership, closed shops, and a ban on joining unions.
Article 12 covers the right to marry. The court has always been reluctant to interfere with domestic laws that regulate marriage although it has done so recently in cases involving same sex couples, transsexuals and prisoners.
Article 13 provides the right to an effective remedy. The remedy of judicial review has been challenged under this article. This article was not included in the Human Rights Act 1998.
Article 14 covers the prohibition of discrimination in relation to other rights laid down by the European Convention on Human Rights; it does not provide a right not to be discriminated against.
Article 15 covers derogations in times of emergency. Derogations are permitted in limited circumstances – member states may derogate from their obligations in times of war or public emergency. It is not, however, possible for a state to derogate from Articles 2 (except in lawful deaths resulting from acts of war), 3, 4 and 7.
Article 16 provides for restrictions on political activity of aliens. This is often criticised as it seems contrary to the spirit of the European Convention on Human Rights and implies that it is acceptable to discriminate against a particular group.
Article 17 covers a prohibition of abuse of rights.
Article 18 covers a limitation on use of restrictions on rights.
It is important to bear in mind that the above brief descriptions are simply the headings to the respective rights and freedoms. It is necessary to look at the description of each of them as set out in the Convention to gain a clearer picture of what is encompassed within the particular right or freedom. Furthermore, case law in the form of the decisions made by the European Court of Human Rights, which sits in Strasbourg, has further defined the application and scope of these articles. As a result it is not possible simply to think in terms of a breach of the article. It is also necessary to examine the substantial body of case law (frequently referred to as the Strasbourg jurisprudence or the European Convention on Human Rights jurisprudence) which has been built up over the years.