The European Convention and the Court of Human Rights

The European Convention of Human Rights is an expansion of the United Nations General Assembly’s Universal Declaration of Human Rights ~an enhancement to it and all others –in its Court anyone anywhere may sue any European government with the ultimate sanction for non-compliance of expulsion.

All 47 countries of the continent of Europe are bound by this protocol, the Convention for the Protection of Human Rights and Fundamental Freedoms, commonly referred to as the European Convention on Human Rights (ECHR) -with legal effect on still more countries on other continents.

It was introduced by Europe and influenced by the European Union peoples’ decision to make themselves extinct as nations to become a single nation as a ‘United States of Europe’.

After the Universal Declaration of Human Rights in 1948 the Council of Europe in 1954 enhanced that with the European Convention of Human Rights even more to protect against abuse of any person or group of persons anywhere by any European person or government -prohibiting also co-operation by commission or omission contrary to the letter or the spirit of the Convention ~of which the essence is human dignity.

(The Council of Europe was set up in 1949 following Briand’s proposals in 1930 for the integration of Europe as envisioned, e.g., by Victor Hugo and called ‘É tats-Unis d’Europe’ [The United States of Europe -‘U.S.E’], a considerably established future name for the European Union [which in 2007 a British-French-German amendment as a Reform Treaty has removed reference to most state-like terminology and symbols of, e.g., the word ‘constitution’, its flag and anthem]).

The Convention is Europe’s peoples’ decision on the lines pursued by John Locke four centuries ago to extend the operation of human rights from their present form as civil liberties with state discretion to civil rights incorporated rather like the Magna Carta into laws at state level and directly binding on governments.

The European Convention of Human Rights is unique. It not a pressure group as the Asian Human Rights Commission; neither as the African Charter on Human & People’s Rights and the African Court of Justice, nor as the American Convention on Human Rights, nor as the United Nations’ Universal Declaration of Human Rights and the International Covenant on Civil & Political Rights, does it limit complaints of specific human rights to violations of the citizens of and within the borders of and by a member state with the specific agreement of both sides with hearings in closed meetings.

The European Convention’s member states under Protocol 11 of 1998 may not opt out of agreeing to any state’s or body’s or person’s direct and public access and evidence and argument for a desired remedy against any member state including itself for any act or omission or co-operation with any state or body or person anywhere in breach of the Convention violating any right of anyone anywhere (including in respect of rights minor by comparison, e.g., state legal aid to sue for defamation of character by another individual), to the European Court of Human Rights (ECtHR) -and are bound by the Court’s judgements, with a duty also to accordingly amend their laws.

The European Convention of Human Rights sets out peoples’ freedoms and rights to be commonly enjoyed by the individual persons in the world (Article 1) in the acts or omissions of its 47 countries. These include the right to life and prohibition of capital punishment, prohibition of extradition by any European government of anyone to a country that has not formally by legislation abolished the death penalty and life imprisonment without parole and in state security courts in any capacity the involvement of the military if it might be faced, to fair civil and criminal public court hearings, right to privacy of one’s family life and home and communications -and that one shall enjoy these freedoms and rights, with more set out in its Articles, without discrimination on grounds of, e.g., race, gender, religion, nationality, political or other opinion held or expressed.

The Convention in effect is binding on the member states ~each has undertaken (with judicial and political Russian moratorium not to use capital punishment) to abide under Article 46 (1) & (2) by the final judgements of the European Court of Human Rights supervised in their execution by the Council of Europe’s Committee of Ministers, with the ultimate sanction of expulsion.

There is an expectation that not only individuals but each member government itself also will bring before the European Court of Human Rights a signatory government to the Convention that fails in respect of these freedoms and rights.

(While governments are considered rarely to have lived up to that expectation and proposals in Protocol 14 [pending ratification] are considered capable of limiting individual redress for human rights violations, the proposals include empowering of a Committee of Ministers of the Council of Europe [without effect on states who have not yet ratified the convention in full, e.g., Britain’s position on Article 4 of Protocol 7 of the Convention in respect of double jeopardy] to bring before the Court any governments that refuse to enforce any judgements against themselves.)

Where a member state has incorporated the Convention into its laws (e.g., Britain’s Human Rights Act 1998 making its courts [as public bodies] bound by the Convention) its national courts must operate as though they were local branches of (with a right on one to directly challenge them at) the European Court of Human Rights and declare ‘not law, not of legal effect’ any national laws involved but incompatible with the Convention.

In the case of the European Union there is an expectation to seek to centralise and equalise the laws and the legal standards in respect of all of the Articles of the European Convention on Human Rights, formally adopting by 2017 also the European Union Charter of Fundamental Rights (EUCFR), to be followed by the European Union’s Court of Justice (ECJ) -where disagreed with (by the European Union Reform Treaty amendment in 2007 by British-French-German governments with an express right [Articles 1 & 2] on the part of the United Kingdom not to comply) possibly tolerably not bindingly.

(In line with this expectation has come about through the European Union Council, e.g., the repeal of the Romanian Penal Code’s Article 200 [public manifestations of homosexuality], and in the course of the processing of its application to join it the formal abolishing in Turkey of the death penalty.)

(The European Convention itself also enjoys indirect but effective influence in the upholding of those rights, and, e.g., in the constitutional Monarchies of Canada, Australia, and New Zealand [each with also a British Governor-General], and where in the British Commonwealth appeal lies to the British Monarch the United Kingdom’s membership of the Convention would normally be a consideration and indeed the Judicial Committee of the Privy Council has been responsible, e.g., for blocking death-sentences passed by the courts in Trinidad & Tobago.)

In 1950 the peoples of the signatory countries to the Convention established in Europe the European Court of Human Rights which in 1998 was instituted permanently with full-time judges equal to the number of the signatory countries elected by the Parliamentary Assembly of the Council of Europe (PACE) but with no nationality requirement (i.e., not as representatives of member countries -e.g., in respect of Liechtenstein a Swiss national) and considered impartial (also not having disregarded criticism of undue consideration for some states’ preferences in respect of, e.g., family re-unification [Article 8] –although it is difficult to see how in applying the Convention it has not been regarded incompatible with the spirit of it where the state represents the society such state interest as by prosecution appeals once those representing the society at trial level by acquittal have expressed the end of their interest in the mater, or such state interest as increase of sentence which only comes into play upon the convict’s exercise of a right given by the society by his own appeal.).

The Court rules on such issues as below:-

Civil Law: Sex discrimination also in the case of immigrants breaches Article 14, Abdulaziz -v- UK 1985… Denial of right to family reunification Article 8 breach, Şen -v- the Netherlands 2001… Right to life in Article 2 (1) does not apply to fetus as much as to pregnant woman, Paton -v- UK 1980… Lack of civil legal aid (for, e.g., libel) limits the right to fair trial and freedom of expression under Articles 6 & 10, Steele -v- UK 2005… Article 6 breach of Employment Appeal Tribunal who took nine years to decide a case, Darnell -v- United Kingdom 1993…

Criminal Law: Under Article 6 not fair to try children in adult courts, Bulger & Venables -v- UK 1999… Convict entitled to privacy in dealings with lawyer, Golder -v- UK 1975… Unlawful to beat prisoners, Ireland -v- UK, 1978… Discretionary interception of telephone communications breached Article 8, Malone -v- UK 1984… Requiring disclosure of journalistic source beached Article 10, Goodwin -v- UK 1996… Detention with delay in bringing suspect before judge in Brogan -v- UK 1998 beached Article 5 -which Britain has since opted out of…

Application of Convention: Human dignity is immanent in private life [Article 8] which includes physical and psychological integrity, Botta -v- Italy 1998… Its is “the very essence of the Convention”, Pretty -v- UK 2002… Prohibition of discrimination (Article 14) applies to all of the Articles of the Convention, Airey -v- Ireland 1979… Application of national law must not negatively affect in circumstance of vulnerability, e.g., re. the right to remain silent (Article 6 [1]) by compelling a convict to disclose information -or, e.g., re. the right to privacy (Article 8) by disproportionate search of one’s premises, Funke -v- France 1998… A State’s responsibility extends not only to individuals also outside its territory, nor only to acts or omissions of its own, but anywhere where in the eyes of the Convention in practice it has control, Cyprus -v- Turkey 2001… This responsibility exists also where a State has no control over matters which is wholly in control of another State but may be involved, e.g., re. extraditing to a jurisdiction where a possibility is foreseeable of treatment incompatible with the general spirit of the Convention, Soering -v- UK 1989…

Reparation: State laws must allow for and make reparation which is not partial and which does not fall short of being an effective remedy (Article 13) and this applies also to claims with a clearly casual connection to the violation, Mikheyev -v- Russia 2006… Just satisfaction (Article 41) includes compensation for loss of future earnings, Barberà -v- Spain 1994… There may be damages also for distress suffered and psychological trauma, M.C. -v- Bulgaria 2003… Allegations may imply remedies for the benefit of relatives, Kaya -v- Turkey 2000. (Legal costs are recoverable if they relate to violation found [Beyeler -v- Italy 2002], may cover domestic court costs [Kyprianou -v- Cyprus 2005], for non-pecuniary compensation there must be ‘real loos of opportunity’ [Ezeh -v- UK 2004] ~cost & compensation calculation is in EuroDolar convertible to complainant’s currency and include any taxes payable -default interest is at the European Central Bank lending rate plus 3%.)

The European Court of Human Rights in Strasbourg previously had a two-tier structure and involved the European Commission on Human Rights set up in 1954, but since 1998 it operates as a single court with a Grand Chamber composed of 17 members -a President and a Vice-President and the 5 Section Presidents (all for a term in such office of 3 years) and 10 justices from its gender and geographic balanced 5 Sections (each of which has 6 under its President) who rotate 9 monthly, the Court’s members sitting full-time each with a 6 year term of office, dismissable with two-thirds majority vote if and fails to meet the required criteria.

The procedure of the European Court of Human Rights has been to ascertain complaints by 3 judges (who only unanimously may reject them) to be put before 7, if precedent may be departed from or appealed 17, judges to be heard.

(Protocol 14 of the Convention awaiting ratification proposes admissibility of cases to be decided by a single judge instead of 3, and in cases arising from failure of a member state to amend its laws in line with an earlier judgement by 3 judges instead of 7 -and interpretation by the Court where it may help enable a government to determine how best accordingly to amend its laws ~also [as favoured on grounds of expediency by Britain and France and supported by Germany -more on the lines of the American and UN Conventions] less access by individual persons on significance basis at admissibility stage and un-enforcing state representation at judicial level.)

(The Holy Sea has Observer status [which also the USA has been given -together with Canada, Mexico and Japan] and membership status is enjoyed by all of the countries of Europe, i.e.: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia & Herzegovina, Britain, Bulgaria, Czechoslovakia, Croatia, Cyprus, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marine, Serbia & Montenegro, Slovenia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine –Belarus being a candidate, Kazakhstan having received confirmation that may apply.)

With such a multitude of member states of the European Convention the European Court of Human Rights is charged with the duty to reflect the common views and the shared values in the Convention as are held by and are the united will of the peoples of Europe.

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