How is that balance promoted in the Convention itself, and how satisfactory, in your view, has the European Commission on Human Rights and the European Court of Human Rights pursued that aim?"
RESTRICTIONS ON HUMAN RIGHTS IN THE EUROPEAN CONVENTION
HOW TO KEEP BALANCE BETWEEN
RIGHTS OF THE INDIVIDUALS AND THE
INTRESTS AND RIGHTS OF THE WHOLE SOCIETY?
Martijn Brinkhuis
2a Marley Court
Parkwood
University of Kent
Canterbury
[email protected]
Human rights and English law
Michaelmas term, December 17th 1998
"The European Convention on Human Rights seeks to balance the rights of the
individual with various other rights and interests in society.
How is that balance promoted in the Convention itself, and how satisfactory,
in your view, has the European Commission on Human Rights and the European
Court of Human Rights pursued that aim?"
INDEX
Page 4 - Introduction
- The Convention in short
Page 5 - The problem to balance
Page 6 - Limitations on the rights
Page 7 - The doctrine of margin appreciation
- Article 64
Page 8 - How does it work?
- Enforcing the Convention
Page 9 - Conclusion
Page 10 - Bibliography
INTRODUCTION
After the Second World War, an international (European) organisation, called the Council of Europe, was formed. The Council drafted the European Convention on Human Rights1. It was signed in 1950 and entered into force in 1953.
Intentionally as a means of preventing the kind of violation of human rights seen in Europe during and before the war. Another reason was the wish to protect Western Europe against communism, which had spread into the states in Central and Eastern Europe. The Convention provided both a symbolic statement of the principles for which Western European states stood and "a remedy that might protect those states from communist subversion2".
The Convention transformed the abstract human rights ideals into a concrete legal framework. Although the concerns over 'sovereignty' and the reluctance on the concept of a state's accountability in the early days, more than 303 state's signed and ratified the Convention. Nowadays, the Convention has evolved into a European bill of rights, with the European Court of Human Rights having a role akin to that of a constitutional court in a federal legal system.
The Convention in short
The term 'human rights', in the usual sense, covers everything which in the language of the Convention is a 'freedom'. Under Article 1, these Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention. Articles 2 to 18 of Section I list and define these rights (and freedoms).
Articles 2 to 5 and 7 to 11 all concern protection of live, respect for the human being and personal freedom. These so-called 'classical' human rights entail that the individual shall be safeguarded against state interference of one kind of another.
They are 'negative' rights (i.e. designed to prohibit certain actions), while another, smaller group are called 'positive' rights. They impose upon the states a duty to take positive action, for instance Article 6 (right to a 'fair hearing' by the courts) and Article 13 (the right to an effective remedy to any one whose 'rights or freedoms' under the Convention have been violated).
Some particularly important provisions are those who apply to all rights and freedoms covered by the Convention. Except for one4 all of these Articles are about limitations and restrictions on the Convention. Article 15 entitles Member States to derogate from a number of provisions of the Convention during time of war or other (real) public emergency. Article 16 gives the state the right to impose restrictions on the political activity of aliens5. Article 17 stipulates that none of the provisions of the Convention implies any justification for actions aimed at the destruction of any rights or freedoms recognised in the Convention. Article 18 lays down an important principle, which states that although certain restrictions are permitted, they may only be applied for purposes for which they have been prescribed.
Furthermore, general restrictions are possible in the Articles 8 to 11. These Articles have a second paragraph enumerating certain restrictions on the primary right stated in the first paragraph. In short, the second paragraph allows restrictions on these rights when they are 'prescribed by law' and 'necessary in a democratic society'.
The problem to balance
On occasion, the rights of the individual and those of the state may conflict. A state is, and should be, in a more superior position than the citizen. The Convention is there -among other reasons seen above- to make sure the ...
This is a preview of the whole essay
Furthermore, general restrictions are possible in the Articles 8 to 11. These Articles have a second paragraph enumerating certain restrictions on the primary right stated in the first paragraph. In short, the second paragraph allows restrictions on these rights when they are 'prescribed by law' and 'necessary in a democratic society'.
The problem to balance
On occasion, the rights of the individual and those of the state may conflict. A state is, and should be, in a more superior position than the citizen. The Convention is there -among other reasons seen above- to make sure the does not abuse that position.
So, on the one hand the Convention gives rights to the individual, and allows state's to restrict these rights on the other hand. The difficulty is to balance these rights with the other rights and interests in society as a whole. I will take a look on how that balance is promoted in the Convention itself -the theory- and how satisfactory the European Commission on Human Rights and the European Court of Human Rights pursued that aim -the practice-.
...some compromise between the requirements for defending democratic
society and individual rights is inherent in the system of the Convention6...
LIMITATIONS ON THE RIGHTS
There are exceptions on almost7 all Articles in the Convention. For instance Article 2, which prohibits the taking of live, contains the exception regarding the death penalty. That limitation on the right to live is expressly permitted if imposed as a 'sentence of a court following...conviction for a crime for which this penalty is provided by law'.
Furthermore, in the second paragraph more exceptions have been made. Although it should be 'absolutely necessary8' deprivation of live shall not be regarded as inflicted in contradiction of this Article when in defence of any person from unlawful violence, in order to effect a lawful arrest (or to prevent the escape of a person lawfully detained) or in action lawfully taken for the purpose of quelling a riot or insurrection. Notice the word lawful in every exception of Article 2. Similar to Article 2, the exceptions on Article 5 are only valid when they are 'in accordance with a procedure prescribed by law'.
Another way to limit a right can be seen in Article 4, where a particular term is defined in such a way as to indicate the limits of the right guaranteed; thus 'forced or compulsory labour' is defined so as to allow for certain forms of work which might otherwise have been prohibited.
Articles 8 to 11 don't have, in contrast to the previous Articles, any built-in exceptions. Articles 8 to 11 recognise that state intervention will be common. Therefore, paragraph 2 of these Articles lists restrictions and limitations on the rights to be guaranteed to ensure that this interference is carefully controlled. In every one of these Articles, the second paragraphs take's a similar form. First of all, any interference by the state must be "in accordance with the law", or "prescribed by law". According to the Sunday times v. UK 9case, two requirements flow from the expression. The first is that the law must be adequately accessible, and secondly, there must be sufficient precision for the citizen to regulate his conduct. Where it is accepted that the interference with the right is "in accordance with the law", it must then be shown that it is "necessary in a democratic society". It may be necessary when it covers (it almost always does) one of the following interests: national security, public safety, public order, the prevention of crime, the protection of health and morals, the rights and freedoms of others, the prevention of the disclosure of information and the maintenance of the authority and impartiality of the judiciary.
The Court's understanding of the term "necessary in a democratic society" has been developed through the cases: necessary means that there is a "pressing social need", which must always be proportionate to the legitimate aim being pursued10.
THE DOCTRINE OF MARGIN APPRECIATION
But who is to decide whether an action is 'necessary'; the Court of Human Rights or the government that has been mandated by the people? In many matters a national government is in a better position to respond to the problems in their country, than a group of international judges in a Court far away. To solve this problem, both the Commission and the Court are granting states an area of discretion, which has been called the "margin of appreciation". This means they recognise that the state has a certain margin of political and practical control within it may operate. Although it started as a response to a claim to derogation under Article 1511, it has not been confined to this Article. Since the Lawless12 case the "margin of appreciation" has been applied in the consideration of all the limitations and restrictions that the Convention allows13.
The doctrine is quite a controversial one. When it is applied widely, so as to appear to give states a blank cheque, it may be argued that the Convention authorities have abdicated their responsibilities. However, the margin is also known in most systems of national law and it serves as a tool to keep the balance between individual rights and public interest. Several authors even claim that 'the doctrine is essential to retain state confidence in the system14'. In its absence, Strasbourg might be seen as imposing solutions from outside without regarding the expertise and responsibilities of local decision-makers. The problem with the doctrine is the breath of the margin of discretion; precisely when and how widely should it be applied on the particular cases15? Although that decision is made by the state at first, it is subject to the supervision of the Convention organs, since it is for the Court to determine whether the derogation goes beyond the extent strictly required by the facts in that situation.
Article 64
International law recognises that a state, in accepting a treaty, may (in circumstances)
Attach a reservation. Under Article 64 the state can declare when signing the Convention it cannot abide by a particular provision because domestic law then in force is not in conformity with it. The Court will review the reservation in order to see if it is specific enough. Any far-reaching reservations have been made to the Convention would be illegal16 as being incompatible with the object and purpose of the treaty.
HOW DOES IT WORK?
Like said before, the Convention was drafted by the Council of Europe, which is run by three main organs. They are the Committee of Ministers, the Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe. The Committee, composed of the Ministers of Foreign Affairs of all Member States, the Convention's executive organ, is the most important.
Enforcing the Convention
The Convention created two organs 'to ensure the observance of the engagements undertaken by the High Contracting Parties17': the European Commission of Human Rights and the European Court of Human Rights18.
The most important function of these organs is to deal with applications brought against the Member States by other states or by individuals under Article 24 or 25 of the Convention. Under Article 2519 any person who feels that he or she has a grievance which might be remedied by the Convention can write to the Secretary of the European Commission in Strasbourg20.
If an individual application is declared admissible by the Commission, the final decision on the question whether there has been a breach of the Convention is taken by the Court, if the case is referred to it, if not, by the Committee of Ministers.
The Committee normally endorses the Commissions opinion without any new investigations of the merits of the case. If the case is referred to the Court, the Commission and the States concerned are represented, but the individual is not21. The judgement of the Court is final and binding, and its interpretations of the Convention have great authority among the national Courts and will normally be followed by the Commission.
CONCLUSION
The Commission in its decisions and reports developed a notion of inherent limitations to the rights laid down in the Convention provisions. According the Commission, certain groups of people22 did not have the same rights (to the Convention) as the rest of the population. The scope of the protections afforded by the Convention could be limited by circumstances that were not stated in the Convention itself. The approach of the Commission has not generally found favour with the Court, who has emphasised that a person's right can only be subject to interference if the conditions set out in the expressed limitations in the Article are met.
A right can be limited by its very definition, in the articulation of the right, or by separate express provisions. In practice, it does not make any difference how a right is limited. Two basic principles are important in this matter, the first is that only the restrictions expressly authorised by the Convention are allowed23, and the second is
stated by Article 18, which tells us that the restrictions permitted under the Convention 'shall not be applied for any purpose other than those for which they have been prescribed'. The Restrictions should therefore always be seen in consideration with the scope of the rights provided in the Convention.
Although the Courts and the Commission still have a lot to improve, especially the machinery24, they have done quite good in my point of view. The fact that the Court is restrained in many cases might be necessary as seen in the 'doctrine of margin appreciation' above. Nevertheless, we can agree that too much discretion given to the State is undesirable. Therefore, the Court as well as the Commission should always strive to the narrowest possible margin of appreciation to preserve and protect the rights given in the Convention.
The Convention has had considerable effect on the national law of the Contracting Parties. Many changes in law occurred following judgements and decisions of the Court or Committee. Sometimes, however, it is uncertain whether the steps taken by the defendant state go far enough. In other cases a state may be slow in putting the necessary measures in place. This a problem hard to overcome, because the overall scheme of the Convention is that the initial and primary responsibility for the protection of human rights lies with the Contracting Parties.....
BIBLIOGRAPHY
HF Helen Fenwick CIVIL LIBERTIES
Second edition, 1998
Cavendish, London
BD Brice Dickson HUMAN RIGHTS AND THE
EUROPEAN CONVENTION
First edition, 1997
Sweet & Maxwell, London
RB Ralph Beddard HUMAN RIGHTS AND EUROPE
Third edition, 1993
Grotius, Cambridge
FJ Francis Jacobs THE EUROPEAN CONVENTION
Robin White ON HUMAN RIGHTS
Second edition, 1996
Clarendon, Oxford (O.U.P.)
HBW D. Harris LAW OF THE EUROPEAN CONVENTION
M. O'Boyle ON HUMAN RIGHTS
C. Warbrick
First edition, 1995
Butterworths, London
The European Convention for the Protection of Human Rights and Fundamental Freedoms
2 See page 2 Law of the E.C.H.R.
3 34 Member State's on March 1, 1995 ; it has been estimated that the Convention community could
grow to as many as 40 to 45 Contracting Parties over the next decade.
4 Article 14, which requires the recognition of the rights and freedoms "without discrimination on any
ground...."
5 Which is greatly criticised, because of the clash with the Articles 10, 11 and 14. See page 80 HF.
6 Klass v. Federal Republic of Germany, Series A, No 28, and 2 EHRR 214 at par. 59
7 Article 3 can never be derogated and does not allow exceptions. Articles 4(1) and 6(2) neither have
any exceptions
8 Stewart v. UK, No 10044/82, 39 DR 162 at 171 (1984) - if it is strictly proportionate to the
achievement of the permitted purpose.
9 (No 1) (1979) Series A, No 30, and 2 EHRR 245
0 The classic formulation of the necessity test is given in Silver v. UK (1983) Series A, No 61, and 5
EHRR 347
1 In the Greek Case, (1969) II Yearbook, 72
2 Lawless v. Ireland, (1961) Series A, No 3 and 1 EHRR 15
3 Especially with respect to par. 2 Articles 8 to 11
4 See page 183 RB and page 15 HBW
5 For example see the Sunday times case where little margin was allowed and Handyside v. UK,
(1979) Series A, No 24 and 1 EHRR 737, where the margin allowed was wide
6 In Belilos v. Switzerland (1988) EHRR 466 the Court stated that a reservation falls within this
prohibition if it is "couched in terms that are too vague..."
7 i.e. the Member's to the Convention
8 Article 19
9 All states that had ratified the Convention, recognise the competence of the Commission to receive
such petitions under Article 25 and is now expected of all (new) Contracting Parties.
20 The address is 'the Council of Europe', F-67075 Strasbourg.
21 Unless Protocol No 9 applies
22 Convicted prisoners, members of the armed forces and mental patients
23 That principle is nowhere stated in the Convention, but is presupposed by the whole system of
the Convention. See page 302 FJ
24 The need to reform is obvious, under the present system it takes years for a case to be finally be
determined by the Court or the Committee. Protocol 11, which will change the machinery from a
blend of judicial and political decision making into a single compulsory and wholly judicial
procedure, which shortens the procedure, will enter into force one year after every state ratified it.
(1995 just 8 of the -then- 30 parties to the Convention ratified the Protocol)
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