The European Convention of Human Rights
The following is a list of the articles contained within the European Convention of Human Rights.
This list of Human Rights was created by the Council of Europe after the second world war in 1950 to protect human rights and fundamental freedoms in Europe. All Council of Europe member states are party to the Convention and the UK ratified the convention into UK law in 1998 so that UK courts could rule on breaches of this convention without recourse to the European Court of Human Rights in Strasbourg.
Article 1 – Respecting Rights
Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention “within their jurisdiction”. In exceptional cases, “jurisdiction” may not be confined to a Contracting State’s own national territory; the obligation to secure Convention rights then also extends to foreign territory, such as occupied land in which the State exercises effective control.
Article 2 – Life
Article 2 protects the right of every person to their life. The first paragraph of the article contains an exception for the lawful executions, while the second paragraph provides that death resulting from defending one self or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is “no more than absolutely necessary”.
This right does also not derogate under article 15 of the convention during peacetime. The exemption for the case of lawful executions is further restricted by Protocols 6 and 13 (see below), for those parties who are also parties to those protocols.
The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann v. United Kingdom it ruled that the exception contained in the second paragraph do not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.
The Court has ruled that states have three main duties under Article 2:
- a duty to refrain from unlawful killing.
- a duty to investigate suspicious deaths and.
- in certain circumstances, a positive duty to prevent foreseeable loss of life.
Article 3 – Torture
Article 3 prohibits torture, and “inhuman or degrading treatment or punishment“. There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention.
The Court have emphasised the fundamental nature of Article 3 in holding that the prohibition is made in “absolute terms … irrespective of a victim’s conduct.”
The Court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state.
Initially the Court took a restrictive view on what consisted of torture, preferring to find that states had inflicted inhuman and degrading treatment. Thus the court held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture. In fact the Court only found a state guilty of torture in 1996 in the case of a detainee who was suspended by his arms whilst his hands were tied behind his back.
Since then the Court has appeared to be more open to finding states guilty of torture and has even ruled that since the Convention is a “living instrument”, treatment which it had previously characterised as inhuman or degrading treatment might in future be regarded as torture.
Article 4 – Servitude
Article 4 prohibits slavery, servitude and forced labour but exempts labour:
- done as a normal part of imprisonment,
- in the form of compulsory military service or work done as an alternative by conscientious objectors,
- required to be done during a state of emergency, and
- considered to be a part of a person’s normal “civic obligations.”
Article 5 – Liberty and Security
Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a “compound” concept – security of the person has not been subject to separate interpretation by the Court.
Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides the right to be informed in a language one understands of the reasons for the arrest and any charge against them, the right of prompt access to judicial proceedings to determine the legality of one’s arrest or detention and to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article.
Article 6 – Fair Trial
Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).
The majority of Convention violations that the Court finds today are excessive delays, in violation of the “reasonable time” requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the “independent tribunal” requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. Turkey now adopted a law abolishing these courts in compliance with the Article.
Another significant set of violations concerns the “confrontation clause” of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.
Article 7 – Retrospectivity
Prohibits the retrospective criminalisation of acts and omissions. No person may be punished for an act that was not a criminal offence at the time of its commission. The article states that a criminal offence is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under their domestic law at the time, so long as it was prohibited by international law. The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed.
Article 7 incorporates the legal principle nullum crimen, nulla poena sine lege into the convention.
Article 8 – Privacy
Article 8 provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for “private and family life” that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy.
Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child).
Article 9 – Conscience and Religion
Article 9 provides a right to freedom of thought, conscience and religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”
Article 10 – Expression
Article 10 provides the right to freedom of expression, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society“. This right includes the freedom to hold opinions, and to receive and impart information and ideas.
Article 11 – Association
Article 11 protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society“.
Article 12 – Marriage
Article 12 provides a right for men and women of marriageable age to marry and establish a family.
Despite a number of invitations, the Court has so far refused to apply the protections of this article to same-sex marriage. The Court has defended this on the grounds that the article was intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to parties in this area.
Prohibiting a transsexual person from marrying somebody whose sex is different from that person’s affirmed gender is a breach of Article 12. (Goodwin v. United Kingdom; I. v. United Kingdom.) This 2002 holding represented a reversal of the Court’s previous opinion (Rees v. United Kingdom). It did not, however, alter the understanding that Article 12 protects only different-sex couples. The United Kingdom Gender Recognition Act now requires married couples, one of whom is a transsexual person, to annul their marriage before the trans partner can be granted a Gender Recognition Certificate. Although this provision is apparently in breach of the article the Court has thus far found the UK Government to be within its margin of appreciation Parry v UK (2006).
Article 13 – Effective Remedy
Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free-standing and separately actionable infringement of the Convention.
Article 14 – Discrimination
Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways, and narrow in others. On the one hand, the article protects against discrimination based on any of a wide range of grounds. The article provides a list of such grounds, including sex, race, colour, language, religion and several other criteria, and most significantly providing that this list is non-exhaustive. On the other hand, the article’s scope is limited only to discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex – Article 14 – in the enjoyment of the right to freedom of expression – Article 10). Protocol 12 extends this prohibition to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long as it is provided for in national law.
Article 15 – Derogations
Article 15 allows contracting states to derogate from certain rights guaranteed by the Convention in time of “war or other public emergency threatening the life of the nation”. The Court is quite permissive in accepting a state’s derogations from the Convention but applies a higher degree of scrutiny in deciding whether measures taken by states under a derogation are, in the words or Article 15, “strictly required by the exigencies of the situation”. Thus in A v United Kingdom, the Court dismissed a claim that a derogation lodged by the British government in response to the September 11 attacks was invalid, but went on to find that measures taken by the United Kingdom under that derogation were disproportionate.
In order for a derogation itself to be valid, the emergency giving rise to it must be:
- actual or imminent, although states do not have to wait for disasters to strike before taking preventive measures.
- involve the whole nation, although this does exclude emergencies which are confined to regions.
- threaten the continuance of the organised life of the community.
- exceptional such that measures and restriction permitted by the Convention would be “plainly inadequate” to deal with the emergency.
Article 16 – Aliens
Article 16 allows states to restrict the political activity of foreigners. The Court has ruled that European Union member states cannot consider the nationals of other member states to be aliens.
Article 17 – Abuse of Rights
Article 17 provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. This addresses instances where states seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights (for example where an individual issues a death threat).
Article 18 – Permitted Restrictions
Article 18 provides that any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided. For example, Article 5, which guarantees the right to personal freedom, may be explicitly limited in order to bring a suspect before a judge. To use pre-trial detention as a means of intimidation of a person under a false pretext is therefore a limitation of right (to freedom) which does not serve an explicitly provided purpose (to be brought before a judge), and is therefore contrary to Article 18.