THE EUROPEAN CONVENTION ON HUMAN RIGHTS AT 60:
BUILDING ON THE PAST, LOOKINGTO THE FUTURE
By Philippe Boillat,
Director General of Human Rights and Legal Affairs of the Council of Europe
The basis of democratic states is the law. The essence of law is freedom, since it is only freedom that defines the conditions that allow people to live together as free individuals. For this reason, an agreement on what comprises human rights and fundamental freedoms may even be the basis for a European constitution[1].
A Convention born in adversity
Europe in 1950 was not the Europe of today. The Second World War,the most bloody and destructive ever, had left Europein ruins. Economic activity was severely disrupted, societies profoundly disturbed and political institutions fragile. The Nuremberg trials of Nazi war criminals, charged with the most appalling war crimes, genocide and crimes against humanity,had recently concluded; memories ofthese unprecedented atrocities, as well as of countless lesser instances of brutality, betrayal and collaboration across the continent, remained painfully fresh. The Allied coalition between western powers and the Soviet Union had broken down, replaced byan“Iron Curtain”separating western from central and eastern Europe, withGermanydivided into a democratic West and a communist East.
Against this grim background, visionary politicians came together to build the foundations of a new Europe, determined to prevent another catastrophe and realising that the best way to do so was to strengthen freedom and democracy and protect them against repression and extremism. At the Hague Congress of 1948, western European leaders supported the proposal for a Council of Europe, adopting a “Message to Europeans” at the final plenary session which declared, amongst other things, that:
“2. We desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as the right to form a political opposition;
3. We desire a Court of Justice with adequate sanctions for the implementation of this Charter”.
The following year, the Council of Europe was established by the Treaty of London between Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom (Greece and Turkey joined later that year and Iceland and Germany the year after). By its founding Statute, the organisation’s aim was (and still is) “to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress”; to this end, a member State “must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council”.
In 1948, the new United Nations had adopted the Universal Declaration of Human Rights. One of the first acts of the Council of Europe was to establish a regional system for protecting certain of these rights within its member States.Based on a draft prepared by the organisation’s Consultative Assembly, the European Convention on Human Rights (“the Convention”) was opened for signature in Rome on 4 November 1950 and entered into force on 3 September 1953.
An instrument of unique importance
The Convention did not, of course, mark the birth of human rights. The development of international human rights mechanisms had, however, been greatly stimulated in response to the wars, persecutions and repressions of the first half of the twentieth century. US President Franklin D. Roosevelt, in his 1941 “Four Freedoms” speech to Congress, had put the defence of liberty and democracy at the heart of the Allies’ war aims. These same four freedoms – of speech and expression, of worship, from want and from fear – were an inspiration for (and mentioned in the preamble of) the 1948 Universal Declaration. Reference to the Universal Declaration can in turn be found in the preamble of the Convention.
The Convention’s importance lies not only in the scope of the fundamental rights that it protects. More particularly, its importance resides in the unique way in which it ensures protection of those rights. Firstly, the Convention’s provisions are binding on the States parties as a matter of international law; and secondly, States’ fulfilment of these obligations is supervised by an international control system.
Originally,the control system was composed of three bodies: the European Commission of Human Rights, the European Court of Human Rights and the Committee of Ministers of the Council of Europe. All applications lodged by individual applicants and States Parties were first examined by the Commission, which ruled on their admissibility. If a complaint was declared admissible, and no friendly settlement was subsequently reached between the parties, the Commission drew up a report establishing the facts and expressing a non-binding opinion on the merits. The Commission and/or the respondent State could then refer the case to the Court for a final, binding adjudication. If the case was not referred to the Court, it was decided by the Committee of Ministers, an essentially political body.
The central component of this system, responsible for resolving the most contentious cases, was the European Court of Human Rights. The Court began functioning in 1959, when the then-Consultative Assembly elected the Court’s first members and it held its first hearing. Its first judgmentswere delivered in 1960/61 in the case of Lawless v. Ireland[2],concerning detention without trial under anti-terrorism legislation – an issuestill relevant today.
The control system has undergone several structural and procedural reforms over the past 60 years. In 1963, Protocol No. 2 gave the Court competence to give advisory opinions on legal questions relating to the interpretation of the Convention and its protocols to the Committee of Ministers on request. Protocol No. 8 of 1985 allowed the Commission to streamline its procedures and increase its efficiency by setting up chambers forstraightforward cases and committees for applications that could be easily ruled inadmissible or struck from the list. Protocol No. 9 of 1990 extended to individual applicants the right to request the Court to deal with the case. Protocol No. 10 of 1992 reduced the majority required for the Committee of Ministers to find a violation in cases not referred to the Court from two-thirds to a simple majority.
The 1948 Hague Congress had also adopted a Resolution stating, amongst other things, that “any citizen of the [member States] shall have redress before the Court, at any time and with the least possible delay, of any violation of his rights as formulated in [the Convention].” Under the original text of the Convention, however, private individuals or non-governmental organisations could only make applications if the State concerned had accepted the Commission’s competence to hear them and could only be decided by the Court if the State had also recognised the Court’s jurisdiction.
Since the entry into force of Protocol No. 11 on 1 November 1998, all individual applicants have been entitled to submit their cases directly to the Court, which, as a now full-time body, has replaced the former two-tier system of the Commission and part-time Court. This has resulted in an entirely judicial system, with the Committee of Ministers now responsible only for ensuring that respondent States execute the Court’s judgmentsagainst them – although this in itself is an important and complicated task.
AEurope without dividing lines
Work towards Protocol No. 11 had been underway since the 1985 Vienna Conference and had overlapped with a period of momentous change in Europe.Since the fall of the Berlin Wall in 1989, the membership of the Council of Europe has enlarged to include all the states of Europe exceptBelarus.
The Convention, although not in itself a “European constitution,” now plays a central role “as a constitutional instrument of European public order on which the democratic stability of the Continent depends[3]”.It has been incorporated into the legal orders of all the Council of Europe’s member States, with more or less direct effect; in many, its provisions have constitutional status. It is a remarkable fact that this single textcan thus be applicable in all 47 States parties, with their very different legal systems.
A living and evolving instrument
The fact that the wording of its rights has remained the same since 1950 does not mean that Convention must be interpreted and applied in the same way today as
60 years ago.
The Courtis required tointerpret the Convention not in abstracto but rather in the context of the real-life factual situations found in the cases before it. In addressing these situations and the evidence presented during proceedings, the Courtcan ensure that the standards of protection afforded by the Convention evolve in line withsocial attitudes and legal standards both within and across the States parties.
In 1978, the Court delivered judgment in the case of Tyrer v. the United Kingdom, which concerned the use of corporal punishment of juvenilesas a criminal penalty on the Isle of Man. Recalling that “the Convention is a living instrument which … must be interpreted in the light of present-day conditions”, the Court stated that it “cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.” In rejecting the argument that local requirements justified the use of corporal punishment,the Court noted that “in the great majority of the member States of the Council of Europe, judicial corporal punishment is not, it appears, used and, indeed, in some of them, has never existed in modern times” and that “historically, geographically and culturally, the [Isle of Man] has always been included in the European family of nations and must be regarded as sharing fully that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble to the Convention refers.”
The “living instrument” approach to interpretation has even led the Court to reverse its own previous case law in response to developments in social and legal circumstances. In Christine Goodwin v. the United Kingdom[4], the post-operative transsexual applicant complained that the authorities’ refusal to officially recognise her new gender violated her right to respect for her private life. In previous cases, the Court had found that such a refusal was justified within the domestic authorities’ margin of appreciation. In Goodwin, however, it reviewed and reversed this position, referring to “the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.”
The scope of protection provided by the Convention has also been expanded by the adoption of additional protocols by the States Parties. These include the 1952 Protocol No. 1, protecting property rights, the right to education and the right to free elections; the 1963 Protocol No. 4, prohibiting imprisonment for debt, the expulsion of nationals and the collective expulsion of aliens and protecting freedom of movement; the 1984 Protocol No. 7, setting out procedural safeguards relating to expulsion of aliens, rights of appeal in criminal matters, to compensation for wrongful conviction and not to be tried or punished twice and equality between spouses; and the 2000 Protocol No. 12, establishing a general prohibition of discrimination.
Perhaps the most politically significant of these protocols have been the 1983 Protocol No. 6, abolishing the death penalty in peace-time, and the 2002 Protocol No. 13, abolishing the death penalty in all circumstances. As a result of the Council of Europe’s initiatives in this area, its member States now constitute a death-penalty free zone, with all having ratified Protocol No. 6 except Russia, which has signed the Protocol and where, as a result, there is a recently reconfirmed moratorium in force; 42 of the 47 member States have also ratified Protocol No. 13.
A progressive instrument
Over the past six decades, the Court has addressed an enormous range of legal and factual issues. The following, to mention but a very few, illustrate the role of the Convention, as interpreted and applied by the Court, as a unique and powerful instrument for promoting civilised values and democratic progress in such a way as to improve the lives of millions of people in Europe.
In the case of Marckx v. Belgium[5], the applicant, an unmarried mother, complained that Belgian law required her to institute legal proceedings to obtain legal recognition of her maternal relationship with her daughter, in violation of the right to respect for family life. The Court, finding that there had indeed been such a violation, recalled that, although the object of Article 8 was “‘essentially that of protecting the individual against arbitrary interference by the public authorities, … it does not merely compel the State to abstain from such interference; in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life.” Adverse differential treatment of unmarried mothers may not have been unusual when the Convention was drafted, but as times changed, so did the Court find ways to ensure that the Convention reflected new attitudes and realities. As a result, the law in Belgium was changed.
The Court also ensures that domestic authorities take into account only relevant considerations when justifying interferences with qualified rights. In the case of Dudgeon v. the United Kingdom[6], the homosexual applicant complained that the existence in Northern Ireland of laws criminalising certain homosexual acts between consenting adult males, and thus the persistent threat of his being prosecuted for engaging in such acts, violated his right to respect for his private life. The Court, in finding this interference with his rights to be unjustified, noted that changing social attitudes and the wide-spread de-criminalisation of homosexual acts in Council of Europe member States, as well as the fact that the Northern Irish authorities had in recent years refrained from prosecuting those over 21 years of age, without apparently undermining moral standards or outraging public opinion. As a result of Dudgeon – and subsequent Court judgmentsconcerning similar laws in Ireland and Cyprus–homosexual acts between consenting adults in private were decriminalised.
In Smith & Grady v. the United Kingdom[7], the Court found a prohibition on homosexuals serving in the armed forces to violate the right to respect for private life, stating that “a predisposed bias on the part of a heterosexual majority against a homosexual minority… cannot, of [itself], be considered by the Court to amount to sufficient justification for the interferences with the applicants’ rights” and once again noting “the widespread and consistently developing views and associated legal changes to the domestic laws of” other member States. The UK subsequently revised its policy on the issue in line with the Court’s judgment.
The requirement that the Convention’s provisions be interpreted so as to give practical and effective protection to individuals has been applied in other situations to give rise to positive obligations on States parties. In Airey v. Ireland[8], involving a victim of domestic violence who was unable to afford the cost of legal representation necessary to pursue separation proceedings before the High Court, the Court recalled that “[t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.” In finding a violation of the right of access to a court implicit in the right to fair trial protected by Article 6 of the Convention, the Court stated that “Article 6 para. 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court,” even if the explicit requirement to provide legal aid set out in paragraph 3(c) related only to criminal proceedings.
Such positive obligations have also been found by the Court in relation to e.g. freedom of assembly, with States being required “to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully” by protecting them from violent disruption by counter-demonstrators[9]; freedom of expression, the Court stating that “[g]enuine, effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals,” such that the State had a positive obligation to protect the staff of a newspaper against unlawful acts and violence[10]; the right to life, the Court noting that “a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the use of legal force by State authorities[11].”In other Article 2 cases, the Court has found a positive obligation to investigate and provide a satisfactory and convincing explanation of deaths of persons in custody[12]; it has also found that the authorities have a positive obligation to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual, for instance as a result of domestic violence[13].