In the center of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.
Winston Churchill (The Hague, 07th May, 1948)
These were the words that led to the inception of the European Convention on Human Rights and Fundamental Freedoms. Human rights and fundamental freedoms are generally understood to be certain basic rights guaranteed to every individual regardless of their sex, caste, creed, race, religion etc. Morally guided and universally accepted, they are inherently every individual’s birthright and bestow upon them a sense of dignity. The question arises, who decided what the terms, ‘human rights’ andfundamental freedoms’, would connote and include? Who decided which rights would be fundamental to the existence of human beings?
Among a few others, it was the ECHR that defined what constituted human rights and their ambit for the very first time. There were many documents that mentioned ‘human rights’ even before, but ECHR and Universal Declaration of Human Rights were the ones to give it a new meaning, one that granted every human being the same and equal right and freedom without discrimination. Its importance is alluded to as it serves as an international standard for human rights and fundamental freedoms for many such treaties, conventions, legislation, etc.
The story of the evolution of the ECHR starts from a meeting of the European Congress at Hague in 1948 wherein people from across the continent had attended this Congress. The effects of World War II had not yet subsided and a need was felt to ensure that such an abominable annihilation of human population and human rights violation would never take place again. Another concern of the Congress was the rapid spread of Communism emanating from Central and Eastern Europe, spearheaded by Stalin. To prevent the states of the Council of Europe (CoE) from being influenced by the Communist propaganda the Western European countries wanted a Convention to emphasize upon the necessity and importance of the principles that a democratic government represents. This led to the conception of the Convention that confers and protects human rights and freedoms and promotes democracy; the ECHR.
Many parliamentarians, academicians and lawyers worked together to create this document, it largely drew inspiration from the UDHR, which had come into effect just a year ago. The document was drafted by the Council of Europe in 1949, it was made open to signatories in 1950 and came into force on 3rd September 1953. While it has been in effect since then, European Union another important European body for economic and political cooperation is yet to accede to ECHR.
Despite Article 6(2) of the Lisbon Treaty making EU’s accession a legal obligation in 2009, the last draft made in 2013, was rejected by the European Court of Justice due to reasons related to the incompatibility of the draft with the EU laws. While there have been implications of re-negotiation since then, the last scheduled negotiation was cancelled due to COVID-19. This accession is imperative because it would lead to the establishment of a single European body that protects human rights which will help in avoiding any kind of friction between two such powerful bodies.
European Convention on Human Rights
The Convention was meant to confer every individual within the CoE with certain basic rights and freedoms and raise awareness among the population about them to prevent history from ever repeating itself. The ECHR is an international treaty divided into three sections which together consists of 59 Articles. It has been amended by 16 protocols since its institution.
Article 1 of the Convention makes it mandatory for all the ‘high contracting parties’ to respect the enshrined human rights, by ensuring each and every individual’s right, as enumerated in Section I, is protected within their territorial jurisdiction. Section I (Art.2-18) puts forth the rights and freedoms that are to be guaranteed to individuals within the jurisdiction of the States that are parties to the Treaty. Section II (Art.19- 51) is solely devoted to the European Court of Human Rights and elaborates on the powers, functions and procedures of this Court. Section III (Art.52-59) consists of the miscellaneous provisions enumerating on the application, powers, reservation, etc.
fundamental rights explained in a chronological order include;
The Right to life;
The Right to be free of torture and cruel, inhuman and degrading treatment;
The Right to freedom from slavery and forced labour;
The Right to liberty and security– this article expressly provides that an individual’s liberty will not be curtailed unless the person is detained or arrested;
The Right to a fair trial;
The Right not to be punished for something that wasn’t against the law at the time– it means that an individual cannot be found guilty of an offence done in the past when it wasn’t classified as an offence and also an individual cannot be subjected to a heavier punishment if the punishment has enhanced after the date of his conviction;
The Right of respect for family and private life– which includes right to one’s own sexuality, prevention of intrusion, etc.;
Right to freedom of thought, conscience and religion;
Right to freedom of expression;
Right to freedom of assembly and association;
The Right to marry and start a family;
Right to an effective remedy– it requires the state to provide means through which we can avail legal remedies in case of violations of our rights, the right not to be discriminated against.
The Protocol I also added certain fundamental rights which include; the right to protection of property (Art.1), the right to education (Art. 2), the right to participate in free elections (Art. 3) and Protocol 13 led to the abolition of the death penalty.
The rights enumerated in this Convention have been adopted expressly or impliedly by the 47 Member States of the Council of Europe in their domestic legislation to make the local implementation of these laws easier and more practical. For example, UK’s Human Rights Act directly enacts most of the provisions from the ECHR and this makes it easier for the UK Courts to implement these laws preventing the violation of human rights at a national level and provide easier access to justice. Before the implementation of the HRA in the UK an aggrieved victim had to go all the way till the European Court of Human Rights(ECtHR) in Strasbourg to fight their case.
European Court of Human Rights
The international treaty protects the rights it confers via the European Court of Human Rights, established in 1959. An aggrieved party can approach the ECtHR only after it has exhausted all the local or domestic court remedies available to it, which basically translates to going through each level of the judicature, from the lowest to highest jurisdiction before being considered for admission into the ECtHR. This case must be filed within 6 months of the last judgment from the court of the highest jurisdiction.
This flow of trajectory is directed thus to accommodate the Doctrine of Margin of Appreciation that recognizes that a state might be able to provide the best-suited remedy to its own resident as it is familiar with the circumstances and conditions in which the individual resides. The aggrieved party may be a single person, group of people, a Company or even a State, while the respondent is always a Member State or more than one Member States. When the aforementioned case is presented before the ECtHR, it may be admitted or rejected based on certain criteria decided by ECHR and the judges.
The Court has single judge formations, Committees, Chambers (7 judges) and Grand Chambers (17 judges). The judges are elected for a term of 9 years and they cannot be re-elected. Once the Chamber passes a judgement, if an application for referral to the Grand Chambers isn’t made within 3 months the judgement passed becomes final, while if such a referral is made and accepted by the panel of judges of the Grand Chamber, then the renewed decision of the Grand Chamber becomes final with no further option of appeal.
If the hearing is made public, it is broadcasted on the website of ECtHR at 2:30 PM (local standard time). The judgements of the ECtHR are binding on the States against which they have been passed. The ECtHR ensures enforcement via the Committee of Ministers of CoE, which is in charge of executing the judgement and making certain that the victims are compensated.
With the fall of the Berlin Wall, new States began to accede to the ECHR, the direct impact of which was felt by the ECtHR due to a consequent increase in the number of cases. Sadly, the maximum number of cases filed in the ECtHR is for violations of Article 6 that is being denied the right to a fair trial, followed by violation of the right to property, right to life and freedom against torture.
Protocol 11 and 14 were introduced in the Convention to increase the efficiency of the functioning of courts and to reduce their workload. The former repealed and replaced Protocols 3, 5, 8 and 9, and obliterated the reason for the existence of Protocol 10. It merged the Commission with the ECtHR and effectively eliminated the former body. The Court’s jurisdictional power was enhanced and it was given compulsory jurisdiction, which means that now every state that is a party to the treaty will mandatorily fall under the Court’s jurisdiction, this was an aspect a ratified state could avoid before this Protocol.
Protocol 14 assumes importance as it provided for reducing the number of cases getting accepted in the court as ‘a significant disadvantage‘ became a criterion for admission in the Court. It allows Committees to ask the Court for interpretations. It also presents a mechanism to try cases with similar circumstances and against the same states. This protocol also holds special value because it introduced a provision for the accession of EU to the Convention.
It is the responsibility of the ECtHR to interpret the text of ECHR and relay the same to the member states through its judgements. Since most of the ‘Human Rights‘ provisions in the legislation of the member states have been derived from the ECHR, they are told to ‘take into account’ the judgements of the ECtHR while ruling upon human rights violation cases. They are asked to do so to ensure that the basic interpretation of the ECHR remains the same. Hence, while the rulings of ECtHR aren’t binding it would be prudent to assume them to be so.
Impact of COVID on ECHR
The havoc wrecked by COVID-19 has landed ECtHR in a predicament. The contagious nature of the virus has forced Governments around Europe to restrict and curtail many of the rights guaranteed under the Convention like that of freedom of movement (Protocol 4, Art.2), right to liberty, right to privacy, freedom of assembly, etc. The virus has already necessitated Governments of Armenia, Estonia and others to pass the notice of ‘derogation from obligations’ under Art 15 of ECHR.
Undeniably, it has fostered an emergency situation where the life of the people in the member states is in grave danger, hence, the invocation of the Article for derogation from duties is justified. While the restriction on the rights guaranteed during a world-wide pandemic may seem like a reasonable act in pursuance of common sense, there are a few who would contest these restrictions on human rights in ECtHR citing ‘human rights violation’.
It must be noted that in a pandemic like this, restriction of movement, and that too not even complete but partial restriction, that allows getting out of the house for essentials during a specified time duration, cannot be construed as deprivation of liberty. An individual’s right to liberty, as a last resort, maybe curtailed by detention and this restriction will be considered justified if the alternative is the spread of the infection to a larger population. A prisoner may also be detained for a longer period by virtue of 5(1)e if it would help in preventing further spread of infection.
In the past tuberculosis testing was not considered to infringe upon any human being’s right to privacy enshrined in Art.8 and hence the COVID-19 testing process should be given the same benefit. In case of a battle between religious beliefs and universal vaccination that could rid the world of an extremely contagious virus, the latter shall win as per previous rulings of ECtHR, for the greater good of the public. Distribution of vaccines prioritizing frontline workers who are more exposed to the virus cannot be touted to be a violation of Art.14.
Several such precedents have been set by the ECtHR that justify the restriction on rights for assembly, association, demonstration, etc. in an emergency such as this. While the states are allowed to impose restrictions, they must be done proportionately. What puts the ECtHR in a lurch, is the justification of their support of restriction of the very human rights which they are intended and empowered to protect.
The ECHR is a living document, it evolves with time and age. Though created in the 1950s, it is still in use to resolve contemporary human rights issues. It was intended by the framers to be interpreted in this way as well. It is the ECtHR that has kept this document relevant in our times with its appropriate interpretation of the application of rights pertaining to the current times. The Court’s dictum against the criminalization of homosexuality is evidenced enough of the evolving nature and relevance of the document.
document is the foundation of many human rights legislations, agreements and
treaties. It provides the states of CoE a standard by which to measure the
fundamental rights guaranteed to them and a judicial institution by which they
can ensure enforceability of these rights inherent to their existence. If the
EU also accedes to the ECHR soon, it would result in the formation of a very
powerful Convention with far greater influence.
Editor’s Note Human Rights violations are consistently observed to be increased with each and every passing day, across the globe. Human Rights provisions form an important part of each and every national and international regulatory framework. This article lays emphasis on the European Convention on Human Rights and the Fundamental Freedoms provided therein. The author has explained briefly the background of ECHR’s formation, the structure of ECHR and has also enlisted the basic fundamental freedoms provided by the same. The author has further explained the formation and role of the European Court of Human Rights (ECtHR) in enforcing the provisions of ECHR. The relevant contemporary developments in ECHR and ECtHR have also been aptly explained. The author concludes by saying that the accession of the EU to the ECHR would be a great step forward and would endow ECHR with great influencing power.