European Convention of Human Rights


IMPLEMENTATION OF EUROPEAN CONVENTION, 1950

Introduction

The European Commission for Protection of Human Rights and Fundamental Freedoms (hereinafter referred as “ECHR”) was signed at Rome on November, 1950. It entered into force in September, 1953. There are 22 parties to it. Eleven Protocols to European Convention have also been signed, either, adding the rights recognized in convention or amending the convention. The European Convention comprises of 66 Articles divided into five sections.

ECHR has been amended several times by the eleven protocols adding the rights recognized in the Convention, enabling the European Court of Human Rights to give advisory opinions on matters relating to interpretation of the Convention and allowing use of special chambers abolishing the death penalty and providing certain procedural safeguards for expulsion of aliens thereby improving the procedural efficiency of the European Commission on Human Rights.

One of the important Article found in Article 16 which provides that nothing in Article 10 (right to freedom of expression), Article 11 (right to freedom of peaceful assembly and to freedom of association) and Article 14 (non-discrimination including on the ground of national or social origin in the enjoyment of rights and freedoms set fourth in the Convention) shall be regarded as preventing, the High Contracting Parties from imposing restriction on the political activity of aliens.

Implementation

The implementation of the European Convention can be divided into following two parts:

  1. The Old System
  2. The New or Present System

1. The Old System

The old system continued up to 31st October, 1998. Protocol XI of the European Convention abolished the provisions relating to Commission in the European Convention were deleted. Under the old system which lasted up to 31st October, 1998, there were two institutions for the implementing of the Convention. They are a European Commission of Human Rights hereinafter referred as “the Commission”, and a European Court of Human Rights hereinafter referred as “the Court”.

  • European Commission of Human Rights

The Commission consisted of a number of members equal to that of the High Contracting Parties but no two members of the commission may be the nationals of the same State. The members of the Commission were elected by the Committee of Ministers of the Council of Europe by an absolute majority of votes, from a list of names driven up by the Bureau of the Assembly.

The members of the Commission were elected for a period of six years. They are entitled for re-elections. The members were to sit in their individual capacity. The election was so managed as to relieve half of the members of the original convention every three years.

The Commission received inter-state communication as well as individual communication alleging breaches of the provisions of the convention.

The most distinctive features of the European Convention for the Protection of Human Rights and Fundamental Freedoms is the optional procedure under article 25, whereby an individual claiming to be a victim of a violation of one of the rights guaranteed by the Convention could present a complaint against his own (or another) government to the Convention for investigation. Individual is given direct access to an international tribunal and is recognized as having the standing necessary to pursue his rights under International law (See Donnelly et, al. v. The United Kingdom, 1973).

In practice, the Commission was by far the most important organ established by the ECHR. It received large number of petitions every year.

As noted above, the provisions relating to European Commission on Human Rights were deleted with effect from 1st November, 1998. The present position, therefore, is that there is no European Commission on Human Rights.

  • The European Court of Human Rights

As stated above with the effect from 1st November, 1998 the only institution for the implementation of the provisions of the European Convention for the protection of Human Rights and Fundamental Freedoms (1950) is European Court of Human Rights. A detailed discussion of this court will be made below.

2. The Present System

Under the new or the present system, European Court of Human Rights is the only institution for the implementation of the European Convention. It will be desirable to discuss here in detailed the provisions of the European Convention relating to the Court.

  • Jurisdiction of the European Court of Human Rights

Article 32 of the European Convention provides that the jurisdiction of the Court shall extend to all matters concerning interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47. In the event of dispute as to whether the Court has jurisdiction, the Court shall decided.

Thus The European Court may have following three types of jurisdiction. They are:
(1) Inter-State cases (Article 33);
(2) Individual application (Article 34);
(3) Advisory Opinions (Article 47).

  • Just Satisfaction

If the Court finds that there has been a violation of the Convention o Protocols thereto, and if the internal law of the High Contracting Parties concerned allows only partial reparation to be made, the Court shall, if necessary, afford the satisfaction to the injured party.

  • Binding Force and Execution of Judgments

Under Article 46 of the Convention, the High Contracting Parties have undertaken to abide by the final judgment of the Court in any case to which they are parties. Further, the final judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution.

Some Example Cases

  • Handyside v. United Kingdom

This case was relating to right of freedom of expression contained in article 10 of ECHR. In this case seizure of the book of Handyside his conviction and fine were held to be justified under Article 10(2) on the ground of “protection of morals”.

  • Ireland v. United Kingdom

This case is also relating to Article 3 of ECHR which deals with freedom from torture and inhuman or degrading treatment. In this case the Court held that the techniques applied amount to a practice of in human and degrading treatment constituting a breach of Article 3.

  • 3. Wemhoff v. Federal Republic of Germany

This case related to the liberty of the person and involved the interpretation of Article 5(3) and Article 6(1) of ECHR.

Conclusion

Firstly, European Convention for Protection of Human Rights and Fundamental Freedoms (1950) is the first important regional convention on human rights, which goes beyond the Universal Declaration of Human Rights and gives to civil and political rights contained therein by binding commitments.

Secondly, it precisely defined civil and political rights and clarifies the contents of these rightly by adding exceptions, limitations or restrictions to which such right are subject.

Thirdly, it provides machinery for the implementation of rights, namely, (1) Commission; (2) the Court; and (3) the Committee of Ministers. Later on (i.e., in 31st October, 1988) the Commission was abolished by Protocol XI.

Lastly, as regards the European Court of Human Rights, even the chance or possibility of a case going to court is definitely a great advance.

–oOo–

Main Sources:

  1. Universal Declaration of Human Rights, 1948.
  2. European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.
  3. Dr. S.K. Kapoor, International Law and Human Rights, 15th Edition, Central Law Agency, 2004.
  4. H.O. Aggarwal, International Law and Human Rights, 13th Edition, Central Law Publications, 2006.
  5. Prof. J.K. Kaul and Prof. S.L. Bhalla, Law of International Organisation and Human Rights: Case Material (Private Circulation), 2003.
  6. etc.

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