EUROPEAN CONVENTION ON

HUMAN RIGHTS
 INTRODUCTION

• The International human rights law consists of multiple layers such as:
(a) the global system, which is micro-managed by the United Nations,
(b) the domestic system, which is micro-managed by each State,
(c) regional systems which are micromanaged by each region.

• These regional human rights systems consisting of regional instruments and mechanisms,
play an important role in the promotion and protection of human rights.
• These systems help to localise international human rights norms and standards,
reflecting the particular human rights concerns of the region.
 WHY DO WE HAVE THESE REGIONAL ORGANIZATIONS?

(a)the local needs and aspirations of people are more likely to be met by way of these
regional instruments,
(b)some regions collectively may want to commit to high human rights standards that
could possibly be agreed to under the auspices of the United Nations,
(c)global enforcement mechanisms may prove futile and a region may want stronger
monitoring and enforcement mechanisms, such as regional courts and commissions,
(d)it is likely to comfort regions with the whole concept of human rights, given that
some of these regions are vary that human rights is in fact only a western notion.
 THE BEGINNING

• The Council of Europe (CoE) is a regional inter-governmental organisation which

promotes human rights, democracy and the rule of law in its member states. The
organisation is separate from the European Union, which is a politico-economic
union.
• The Council of Europe established the European Convention on Human Rights and
Fundamental Freedoms, which entered into force in 1953, and is the main European
human rights convention.
• The said Convention was drafted by the Council of Europe after the Second World War
and was designed to protect individual’s fundamental rights and freedoms.
• Accordingly, it deals with a lot many civil and political rights, and is in that sense
similar to the ICCPR.
• Several additional Protocols have added to its substantive and procedural provisions.
 EUROPEAN COURT OF HUMAN RIGHTS

• The Court was established on 21 January 1959 on the basis of Article 19 of the Convention
when its first Members were elected by the Consultative Assembly of the Council of Europe.
• The machinery for enforcement of human rights under the ECHR is the most developed in
Europe and in fact some scholars refer to it as one of the most efficient human rights systems in
the world.
• By Protocol 11 of the European Convention on the Protection of Human Rights and
Fundamental Freedoms, a single permanent Court called the European Court of Human
Rights was established in order to maintain and improve the efficiency of protection of human
rights and fundamental freedoms.
 EUROPEAN COURT OF HUMAN RIGHTS

• In this previous classical format, once someone had pursued all avenues to have their
rights vindicated by the legal system of the country where they find themselves, they
could approach the European Commission on Human Rights.
• The commission then would give the State an opportunity to respond, and then decide
whether there has been a violation.
• This decision did not, however, by itself carry the force of law.
• To obtain such a result, the case had to proceed to the European Court of Human
Rights, where legally binding decisions were issued on whether a state party has violated
the treaty.
• The European Court of Human Rights is a judicial
body composed of a number of judges equal to the To consider cases brought
number of states that are current members of the before it, the Court sits in-
Council of Europe.
• Judges are elected by the Parliamentary
Assembly of the Council of Europe for a term of
Grand Chamber of
six years.
Seventeen Judges
• It is also important to note that judges are required
to sit on the Court in their individual capacity only.

Chambers of Seven Judges

Committees of Three Judges

 admissibility stage If Application- Not
TWO MAIN STAGES Admissible
(in consideration of cases
brought before the Court) merits stage
Committee
If Application- Admissible

Chamber Delivers Judgment

declare the case inadmissible
final only after the
Notice of the case to the by a unanimous vote, and
expiry of a three- its decision cannot be appealed
respondent Government for
their observations month period against

Written observations are

submitted by both parties Grand Chamber

Government may request Referral Only Considers serious question affecting the
for fresh consideration interpretation or application of the
Convention or the protocols thereto
• There are two main stages in consideration of cases brought before the Court:
the admissibility stage and the merits stage.
The processing of an application goes through these phases.
• A Committee finding that an application is not admissible will declare the case inadmissible, by a
unanimous vote, and its decision cannot be appealed against.
• If however, no decision is taken by the Committee on admissibility, a Chamber shall decide on its
admissibility.
• If however, the application is found admissible, a Chamber will give notice of the case to the
respondent Government for their observations.Written observations are submitted by both parties.
• Ultimately, the Chamber delivers a judgment that will become final only after the expiry of a three-
month period during which the applicant or Government may request the referral of the case to
the Grand Chamber for fresh consideration.
• The Grand Chamber only accepts these requests if the case raises a serious question affecting the
interpretation or application of the Convention or the protocols thereto, or a serious issue of
general importance.The judgment of the Grand Chamber shall be final, however.
 ENFORCEMENT MECHANISM

• The European Court of Human Rights may receive applications from any person
(including group of individuals) who claims to be a victim of a violation by one of the
State party to the ECHR.
• The only admissibility criteria for hearing such applications are:
(a) all domestic remedies must have been exhausted,
(b) the application to the ECHR must have been filed within six months from the date on
which the decision in point (a) would have been taken,
(c) the application must not be anonymous,
(d) the application must not contain a substantially same matter as has already been
examined by the Court already, and
(e) the application must not have been submitted to another procedure of
international investigation or settlement and contains no relevant new information.
ARTICLE 27
Competence of single judges
1. A single judge may declare inadmissible or strike out of the Court’s
list of cases an application submitted under Article 34, where such a
decision can be taken without further examination.
2.The decision shall be final.
3. If the single judge does not declare an application inadmissible or
strike it out, that judge shall forward it to a committee or to a Chamber
for further examination
 ENFORCEMENT MECHANISM

• Furthermore, the State parties to the Convention in fact undertake to abide by the
final judgment of the Court in any case to which they are parties.
• In any event, however, the concerned State does not abide by the decision, the Court
transmits its judgement to the Committee of Ministers which further supervises its
execution.
• The Committee of Ministers is the Council of Europe’s decision-making body, which
comprises of the Foreign Affairs Ministers of all the member states, or their permanent
diplomatic representatives.
• The Committiee’s work is carried out mainly at four regular meetings every year, which
takes the shape of Annotated Order of Business.
• The Committee completes each case by adopting a final resolution, which is made
public.
 LANDMARK JUDGMENTS BY THE
EUROPEAN COURT OF HUMAN RIGHTS

• Since 1998 it has sat as a full-time court and individuals can apply to it directly. Since its inception,
the Court has delivered more than 16,000 judgments.
• These are binding on the countries concerned and have led governments to alter their legislation
and administrative practice in a wide range of areas.
• The most violated provision of the European Convention is Article 6 which speaks of the right
to a fair trial, then the reasonable time requirement.
• The next most frequent violations are under Article 1 of Protocol No. 1 (protection of property)
and Article 5 of the Convention (right to liberty and security).
• Apart from ruling on these violations, the Court has most frequently given judgments on
abortion, assisted suicide, body searches, domestic slavery, adoption by homosexuals, wearing
religious symbols at school, the recognition of transsexuals, the protection of journalist sources
and even environmental issues.
 GURGUCHIANI V. SPAIN (15 DECEMBER 2009)

• Gurguchiani, the applicant, was sentenced to eighteen months imprisonment for an attempted
house burglary in 2002 and was later released on licence. However, his conviction was
upheld and appeal petition dismissed by the Constitutional Court.
• In the meantime, the Spain police authorities requested the judge responsible for the
enforcement of the judgment against the applicant to issue directions for the applicants
removal from the country in accordance with the applicable enforcement procedure.
• This request was accompanied by the 2002 order of a regional arm of central government
which ordered the administrative removal of the applicant according to Institutional Law of
2000, a Georgian citizen living illegally in Spain.
• Later when the matter went to the criminal court, it found it more appropriate to impose
sentence. But the appellate court accepted the Prosecutor’s contention to deport the
applicant from Spain and additionally imposed a ten-year ban on his re-entry.
 GURGUCHIANI V. SPAIN (15 DECEMBER 2009)

• According to the domestic criminal laws applicable where an illegal immigrant in Spain
was given a prison sentence of up to six years, there was an obligation to replace that
sentence by deportation, save in exceptional cases.
• The Court held that the replacement of the applicants eighteen-month prison sentence
by his deportation and ten-year exclusion from Spain, without allowing him to appear
before the court and without taking into account any circumstances, had to be regarded
as a sentence in the same sense as that originally imposed.
• A heavier penalty was imposed on him with a retrospective effect. Therefore,
the Court found Spain violating Article 7 when Gurguchiani was given a harsher
sentence than that which had originally been provided for in respect of the offence for
which he was convicted.
 SALDUZ V. TURKEY (27 NOVEMBER 2008)

• Turkish law provided for access to a lawyer for any accused as soon as he is taken
into custody unless was charged for an offence falling within the jurisdiction of the state
security courts.
• The applicant, a minor, was arrested on suspicion of aiding and abetting an illegal
organization, an offence triable by the state security courts and he gave an admission
statement to the police about his participation in the unlawful demonstration.
• This statement was made without a lawyer being present. Later, before the
investigating judge he retracted from the statement as taken by duress from where he
was remanded to custody and allowed to access a lawyer. Even at trial, he continued to deny
his statement but the court held his initial police confession to be reliable and punished
him with a thirty-month imprisonment.
 SALDUZ V. TURKEY (27 NOVEMBER 2008)

• Under Article 6(1) for a fair trial to remain sufficiently practical and effective, access to a
lawyer had to be provided, as a rule, from the first police interview of a suspect, unless it
could be demonstrated that in the particular circumstances there were compelling reasons to
restrict that right.

• In the given case, denial of access to a lawyer on the pretext of offence falling within
jurisdiction of state security courts was found unjustifiable. Applicants age was also an
important point for the Court to arrive at a decision against Turkey. Therefore, the Court
found Turkish authorities in violation of Article 6 (right to a fair trial) when the applicant was
charged and convicted for a statement admitting guilt while in custody, without a lawyer.
 SCHWABE AND M.G. V. GERMANY (1ST DECEMBER 2011)

• The German authorities detained two men for five days to prevent them from
participating in demonstrations against the G8 summit of Heads of State and Government
held in Heiligendamm near Rostock, Germany.
• They were arrested when , the police found banners bearing the inscription freedom to all
prisoners and free all now from their van while checking. The District Court and the
Appellate Court found that with their banners the applicants had intended to incite
others to free prisoners from Waldeck prison and ordered their detention. Even though
no criminal proceedings were initiated against them.
• The Court was therefore not convinced that the applicants continuing detention could
have reasonably been considered necessary to prevent them from committing a
sufficiently concrete and specific offence.
 SCHWABE AND M.G. V. GERMANY (1ST DECEMBER 2011)

• Nor could it have been justified under Article 5 (b) in order to secure the fulfilment of any
obligation prescribed by law since the police had not ordered them to report to a police
station in their town of residence or prohibited them from entering the area in which the
summit-related demonstrations were to take place.

• Therefore, the Court held German authorities responsible for violating of Article 5(1)
(right to liberty and security).

• Also, their detention for the entire duration of the G8 summit (almost 60 days) without
finding any concrete evidence of violent intentions was held to be a violation of Article 11
(freedom of assembly and association).