European Convention on Human Rights and Fundamental Freedoms

The Convention for the Protection of Human Rights and Fundamental Freedoms, commonly known as the European Convention on Human Rights (ECHR), lies at the heart of a highly sophisticated regional legal order developed under the authority of the Council of Europe based in Strasbourg, France. The Convention initially provided for a two-tier system of supervisory institutions, consisting of the European Commission of Human Rights and the European Court of Human Rights. In 1998, these two part-time institutions were replaced by a single-tier, full-time European Court of Human Rights. By 2004, the Court's jurisdiction extended to all of the Council of Europe's forty-six member states.

The origins of the ECHR may be traced back to the Western European federalist movements that gained a degree of prominence in the years immediately after the end of the Second World War in 1945. The initial proposal for the creation of a European human rights jurisdiction was made at the famous Congress of The Hague in May 1948. European governments, however, appeared singularly reserved about the possible development of this incursion into their traditional sphere of sovereignty . Indeed, the Committee of Ministers of the newly established Council of Europe initially refused to place the question of human rights on the agenda of the inaugural session of the organization's Consultative Assembly in August 1949. Nevertheless, faced with the assembly's strong insistence on the question, the Committee of Ministers recanted its initial position.

Given the opportunity to deal with the issue, the assembly proceeded to produce a draft convention of human rights based on the "Teitgen Report", so named for its principal drafter, Pierre-Henri Teitgen (1908–1997)—which it submitted to the Committee of Ministers in September 1949. A series of expert meetings and intergovernmental negotiations were then held over the course of the following year, producing the definitive text of the ECHR. The treaty was opened for signature in Rome on November 4, 1950. The ECHR entered into force, for an initial group of ten ratifying states, on September 3, 1953.

The document, as agreed in 1950, encompassed only a comparatively limited range of rights; its scope is notably narrower than that of the United Nation's 1948 Universal Declaration of Human Rights. The ECHR is focused on a core of political and procedural rights , to the exclusion of the broader social and economic rights proclaimed in the Universal Declaration. For the proponents of the European system, there was a necessary trade-off between the creation of an effective international mechanism for human rights protection and the range of rights that it might, at least initially, encompass.

Reflecting an interesting blend of English common law and continental European civil law drafting techniques, the ECHR encompassed the following rights: the right to life (Article 2); the prohibition of torture (Article 3); the prohibition of slavery and forced labor (Article 4); rights to liberty and security, significantly concerned with the conditions of detention (Article 5); the right to a fair trial (Article 6); the right for punishment to be inflicted only in terms established by law (Article 7); the right to respect for private and family life (Article 8); the right to freedom of thought, conscience, and religion (Article 9); freedom of expression (Article 10); freedom of assembly and association (Article 11); the right to marry (Article 12); the right to an effective remedy (Article 13); and a prohibition of discrimination as regards the exercise of any of the aforementioned rights (Article 14).

Further substantive rights have been incorporated into the Convention by way of six additional protocols, which bind only those states that choose to ratify them. Protocol No. 1—arguably the most important of these additional protocols—was opened for signature in March 1952 and entered into force in May 1954. This protocol essentially allowed for the optional inclusion of three provisions that had proved too controversial to be included in the initial text of the ECHR: a right to property, a right to education, and an obligation on the states' parties to hold free and fair elections at regular intervals.

the teitgen report

The Teitgen Report of September 8, 1949, is the most important document that preceded the drafting of the European Convention of Human Rights (ECHR) in 1950. The report, which was given to the Consultative Assembly of the Council of Europe, represented the conclusions of the Assembly's Committee on Legal and Administrative Questions. Pierre-Henri Teitgen (1908–1997), a French law professor and cabinet minister, was the chief author of the report.

The committee had been asked to study proposals for a European organization that would provide a collective guarantee of human rights. The Teitgen Report listed ten rights from the Universal Declaration of Human Rights that should be guaranteed. It also recommended the establishment of a European Court of Justice and a European Commission of Human Rights. The provisions of the Teitgen Report were stronger in two important respects than those of the later ECHR—the Report gave individual citizens full access to the Court and the Commission, and it did not make the Committee of Ministers the final judge of cases not referred to the Court.

Teitgen himself had suffered at the hands of the Gestapo during the German occupation of France (1940–1944); his father and brother had died in concentration camps. When some delegates to the 1949 Consultative Assembly expressed concerns about the loss of national sovereignty, Teitgen replied that "the only sovereignty worth dying for … the sovereignty of justice and the law" (Council of Europe, p. 50).

Source: Council of Europe. Collected edition of the "travaux préparatoires" of the European Convention on Human Rights volume 1. The Hague: Council of Europe, 1975.

Both Protocol No. 4 (opened for signature in 1963 and entered into force in 1968) and Protocol No. 7 (opened for signature in 1984 and entered into force in 1988) contain somewhat diverse packages of provisions that further develop and extend the core political and procedural rights of the initial ECHR text, in line with the recommendations of the expert committees established by the Council of Europe. An evolving European consensus on the abolition of the death penalty has also found expression in the addition of two protocols to the Convention. Protocol No. 6 (opened for signature in 1983 and entered into force in 1985) provides for the peacetime abolition of capital punishment; the more recent Protocol No. 13 (opened for signature in 2002 and entered into force in 2003) takes this one step further and prohibits the imposition of the death penalty in any circumstances. Finally, Protocol No. 12 (opened for signature in 2000 and entered into force in 2005) invests the European Court of Human Rights with a broader, freestanding antidiscrimination jurisdiction.

While not discounting the importance of the specific measures adopted, the development of the ECHR by the addition of further substantive rights has, overall, remained relatively limited. Most notably, more ambitious proposals to effect a qualitative expansion of the system's jurisdiction to encompass social and economic rights or minority rights have failed to win the necessary support of the contracting states. In each case, distinctive instruments have been developed within the wider Council of Europe system, such as the European Social Charter (operational since 1965 in its initial form) and the Framework Convention for the Protection of National Minorities (operational since 1998), which do not provide for a form of judicial recourse on the ECHR model.

jurisprudential development

The ECHR has been the subject of an expansive jurisprudential development by the European Court of Human Rights and (prior to 1998) by the European Commission on Human Rights. Already in the 1961 case of Austria v. Italy, the Human Rights Commission clearly set apart the interpretive principles that were to govern the development of the Convention from more traditional understandings of international law. The case concerned a complaint brought by the Austrian government related to the trial of six youths who had been convicted for the murder of an Italian customs officer in the border province of Alto Adige. The Italian government, interpreting the Convention as creating reciprocal obligations between the contracting states, argued that Austria lacked standing to bring the case as it had not been a party to the ECHR when the events took place. The Commission rejected the Italian position, stressing that the ECHR was to be interpreted as an instrument establishing a common public order for all democracies within Europe. As such, conditions of reciprocity were not applicable. The ECHR created objective rights for all those who found themselves in the jurisdiction of any one of the contracting states.

This expansive understanding of the ECHR has been further developed by the Strasbourg institutions through the use of object and purpose interpretive techniques. In the 1968 case of Wemhoff v. Germany, the Court of Human Rights pointedly rejected the view that the ECHR, as an international treaty, should be interpreted in the manner most restrictive of states' obligations. Rather, the Court argued that the Convention must be interpreted in light of its overall object and purpose, which is that of the creation of an effective system of human rights protection, in accord with the shared values and political goals of the community of contracting states.

The practical implications of this interpretive technique may be illustrated with reference to the 1975 case of Golder v. United Kingdom. This case concerned a complaint brought by a prisoner who had been prohibited from communicating with a solicitor in respect of a civil suit that he wished to bring against the prison authorities. The core issue was whether Article 6 of the ECHR, establishing the right to a fair trial, could be construed to encompass an implicit right of access to a court, in the absence of any explicit reference to this effect. The majority opinion of the Court, citing the overall object and purpose of the Convention, held that such a prior right of access does, in fact, exist, thus siding with the plaintiff.

The Strasbourg institutions have further ensured that the Convention remains a living instrument, reflective of changing social attitudes and legal practice in the community of contracting states. A technique of dynamic or evolutive

interpretation has thus been used. In keeping with this doctrine, the Court of Human Rights found the practice of judicial corporal punishment (birching) on the Isle of Man to constitute degrading punishment in the 1978 case of Tyrer v. United Kingdom. Although the Isle of Man authorities could point to overwhelming popular and parliamentary support for the practice, the Court held that it was unacceptable in light of the generally accepted standards of the Council of Europe member states. The Court has similarly pointed to an evolving consensus of member-state practice in a series of decisions, beginning with Dudgeon v. United Kingdom in 1981, which found breaches of the Convention regarding national legislation that treated homosexual acts between consenting adults as a criminal offense.

Although the jurisprudence of the European Court of Human Rights has generally been marked by a vigorous affirmation of European human rights standards, it has also displayed an awareness of the inherent limits of the Convention system. As the Court has itself repeatedly affirmed, the ECHR can provide only a subsidiary guarantee of human rights protection; national authorities must necessarily continue to hold the principal responsibility for the maintenance and development of human rights, with the European system acting only to secure a baseline minimum standard.

In keeping with this division of responsibilities, the Court has had frequent recourse to a "margin of appreciation" doctrine in its interpretation of the Convention. The margin of appreciation refers to the area of discretion enjoyed by the contracting parties as regards the discharge of their obligations under the ECHR. This doctrine recognizes that democratic societies may legitimately make different policy choices in light of differing national cultures and circumstances. The precise balance struck between state interference and individual freedom will thus not be the same across all contracting parties. Nevertheless, insofar as a common minimum standard of human rights protection is maintained, the doctrine holds that it is not properly the place of an international court to question these choices.

The margin of appreciation is differentially applied. Notably, no margin is accorded to states as regards Articles 2 through 4 of the Convention, whereas it comes most prominently into play regarding Articles 8 through 11. The application of the doctrine—and the problems that attach to it—may be illustrated with reference to the Article 10 guarantee of freedom of expression. In this area, the Court has allowed states a relatively broad margin of appreciation as regards questions of public morals (Handyside v. United Kingdom, 1976) or sensitivity toward local religious sensibilities (Otto-Preminger Institute v. Austria, 1995).

Conversely, the margin has been markedly more circumscribed in relation to questions of disclosure in the public interest (The Sunday Times v. United Kingdom, 1979), political commentary (Lingens v. Austria, 1986), or journalistic freedom of expression (Jersild v. Denmark, 1994).

For proponents of the margin of appreciation, this pattern of decisions is reflective of the necessary—if necessarily difficult—balance that the Court must strike between the acceptance of legitimate national differences and the affirmation of European standards. Yet, critics of the doctrine would argue that the use of a discretionary construct of this type leads to significant inconsistencies in the Court's case law, running the risk of producing a longer term loss of legitimacy for the European human rights system as a whole.

new challenges

The Convention system has faced major new challenges from the 1990s onward. In the mid-1990s, the Court of Human Rights was confronted with a series of cases alleging the severe and systematic abuse of human rights by Turkish authorities in their treatment of the country's Kurdish minority. Violations of the Convention were found to have taken place in relation to allegations of torture (Aksoy v. Turkey, 1996), rape (Aydin v. Turkey, 1997), and the destruction of private homes (Akdivar v. Turkey, 1996). The case of Loizidou v. Turkey (1998), concerned with the exercise of property rights in northern Cyprus, marked the first instance in the Convention's history of a state directly refusing to comply with a judgment of the Court. The Turkish government executed the Court's judgment in the Loizidou case only in 2003 after protracted negotiations and the sustained application of international pressure.

The problems raised by the Turkish cases must not, however, be seen in isolation. The progressive enlargement of the Council of Europe since the end of the Cold War to encompass the vast majority of post-communist successor states in Central and Eastern Europe has markedly changed the character of the Convention community. The Court of Human Rights must now deal with a much wider diversity of both states and issues than had previously been the case in the context of an exclusively Western European system.

In particular, although many of the new contracting states have rapidly and successfully completed processes of democratic transition, other recent adherents nonetheless continue to exhibit significant structural failings regarding their ability to comply with Convention obligations. Thus, for example, in the case of Kalashnikov v. Russia (2002), the Court of Human Rights found typical Russian prison conditions to constitute a form of inhuman treatment in violation of the ECHR.

At the same time, the growing prominence of the European Union (EU) as a human rights actor is also posing new challenges for the Convention system. The adoption by the EU of its own declaratory Charter of Fundamental Rights in 2000, which may acquire binding force as part of a new constitutional treaty, has posed the question of the relationship between the EU and the ECHR. At the limit, one could imagine that the Luxembourg-based Court of Justice of the European Communities might, on the basis of the Charter, pursue a human rights jurisprudence that diverged significantly from that of the Strasbourg-based European Court of Human Rights. This risk should not, however, be overemphasized. Although there have been occasional divergences between the two courts in the past, the Luxembourg Court has nonetheless shown a growing awareness of Strasbourg jurisprudence. Rather, the issue at stake is more that of ensuring an overall, coherent system of European human rights protection.

At present, although the implementation of EU law by national governments may give rise to a case against the government concerned under the ECHR system (for example, Matthews v. United Kingdom, 1999), there is no means by which EU acts may directly be brought before the Court of Human Rights. This would be possible only if the EU itself were to become a party to the ECHR. A broad consensus now appears to exist in principle supporting this accession, but it remains for the necessary measures to be taken.

congress of the hague, 1948

The Congress of the Hague, which was held between May 7 and May 11, 1948, was one of the most important events in the process leading to the formation of the European Union. The Congress was preceded by two meetings in July and November 1947, in which four different groups advocating closer relationships among European governments first merged and then renamed themselves the Joint International Committee for European Unity.

The Committee organized the 1948 Congress at the Hague and invited eight hundred delegates from twenty European countries as well as observers from Canada and the United States. There were three major committees at the Congress, which discussed cultural, economic and social, and political issues, respectively. The committees then drafted resolutions calling for such measures as a common European currency and economic union as well as the formation of an international court and a charter of human rights. These resolutions were submitted to the delegates in three plenary sessions and formally adopted by the Congress. Five months later, the Joint International Committee for European Unity officially changed its name to the European Movement.

The delegates to the 1948 Congress included notable figures in the arts and literature as well as politicians. In addition to well-known political leaders such as Winston Churchill, Harold Macmillan, Konrad Adenauer, François Mitterrand, and Paul-Henri Spaak, the Congress was attended by philosophers (Raymond Aron and Bertrand Russell), novelists (Ignazio Silone), and poets (Willem Asselbergs).

The ECHR has thus reached a historical turning point. The highly sophisticated system of regional human rights protection that emerged in Western Europe over the course of the post-World War II period must now, in the post-Cold War era, secure its position as a pan-European institution. As it strives to meet this challenge, the ECHR system will continue to be of central interest to students of both international human rights and European integration.

See also: European Court of Human Rights; European Union; Human Rights; International Human Rights Law.

bibliography

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Robert Harmsen