All posts by John Wadham

Associate, Doughty Street Chambers Chair of the UK's National Preventative Mechanism Member of the Human Rights Committee of the Law Society Visiting Fellow, Bristol University Visiting Senior Research Fellow, Kings College, London Recent projects include: • ILGA Europe (International Lesbian, Gay, Bisexual, Trans and Intersex Association): leading a strategic litigation workshop on the ECtHR in Eastern Europe • NGOs and human rights charities (Thomas Paine Initiative – UK): legal, political and strategic advice on the likely consequences for the Human Rights Act and the UK’s involvement in the European Convention of Human Rights given the proposals of the political parties (and Conservative Government) • Human Rights Implementation Project, University of Bristol: drafting interventions and amicus in cases before the African Court and Commission of Human and Peoples’ Rights • Commonwealth Secretariat: institutional needs assessment of the Seychelles National Human Rights Commission (NHRC) and the Ombudsman Council of Europe projects • Albania: Enhancing the effectiveness of the Albanian system of human rights protection and anti-discrimination • Armenia: Strengthening the capacity of lawyers and human rights defenders for domestic application of the European Convention on Human Rights and of the Revised European Social Charter: Discrimination, Article 3 and 14 • Azerbaijan: Strengthening the capacity of lawyers and human rights defenders for domestic application of the European Convention on Human Rights and of the Revised European Social Charter: Liberty and Arbitrary detention, Article 5 of the ECHR • Georgia: Strengthening the capacity of lawyers and human rights defenders for domestic application of the European Convention on Human Rights and of the Revised European Social Charter: Gender discrimination and violence • HELP platform on Pre-Trial Investigations (with Ukrainian experts): Co-ordinator, international experts • HELP platform on Article 5 (with experts from Azerbaijan): Co-ordinator, international experts • Macedonia: CoE legal assessment upon recent statutory amendments of the Law on the Police • Moldova: The Moldovan Constitutional Court: Protection of personal data through the right to respect for private and family life • Moldova: Hate speech, Discrimination and Freedom of Opinion and Expression • Moldova: Strengthening the capacity of lawyers and human rights defenders for domestic application of the European Convention on Human Rights and of the Revised European Social Charter • Sexual Orientation and Gender Identity: panel expert for CoE • Ukraine: “Effective Investigations Through Cooperation” organised by General Prosecutor Office of Ukraine with CoE; paper “Investigations: The challenges and human rights standards” and moderator • Ukraine: expert for Council of Europe opinion on the law to establish “The Special Bureau of Investigation” • Ukraine: Training on Basic Principles and Concepts of Article 6 of the ECHR in Criminal Proceedings

Article 3 and the need for investigations: short power points

Obligation to Respect Human Rights
Article 1:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
A positive duty to ensure that the rights in the rest of the ECHR are respected.

Key principles of human rights law

States have an obligation to protect people from human rights violations;
Obligation particularly applies to the most vulnerable and must be complied with without discrimination;
Any serious human rights abuses must always be investigated effectively.

Duty to investigate
There must be an effective official investigation into deaths and alleged violations resulting from the use of force. This investigative obligation is known as the ‘procedural aspect’ of Article 2 and 3 (and 4 and 8).
Purpose of an investigation
“… to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility…
Purpose of an investigation
“…not only the actions of the state agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the state complied with its obligation…”.

Independent investigation of law enforcement officials
It is necessary for the persons responsible for carrying out the investigation to be independent from those implicated in the events. This requires a lack of hierarchical or institutional connection as well as a practical independence.”

Transparency
In both Article 2 and 3 cases: although the inquiry should be transparent the degree of public scrutiny may vary from case to case,
it is necessary in all cases for the victim or his or her next of kin to be involved to the extent required to safeguard their legitimate interests.
Duty to investigate: Article 3

“…the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions.”

Independent investigations: Article 3
Where an individual raises an arguable claim that he or she has been ill-treated by the police or other agents of the state unlawfully there must be an effective official investigation.
The investigation should be capable of leading to the identification and punishment of those responsible.

Injured in custody
If victims provide evidence that they were injured at the time of release from custody but healthy at the time that they were taken into custody the burden is on the detaining authorities to provide a plausible explanation.
Judges and supervisors of such investigations should be particularly vigilant for flaws in the investigative process.

Law enforcement officials failures
To protect individuals from violations and to investigate effectively allegations made by vulnerable or abused groups:
Prisoners and others detained
Lesbian, gay, bisexual and transgendered people
Ethnic minorities
Women and those subject to domestic violence or sexual assault
People with disabilities
Victims of trafficking

Article 3: short power points

ARTICLE 3
The protection against torture, inhuman or degrading treatment or punishment is fundamental to the Convention.
It contains both substantive obligations and procedural obligations, such as the obligation to investigate alleged breaches.
Article: severity
Article 3 can be broken down into 5 elements: torture, inhuman, degrading, punishment and treatment.
The conduct must attain “minimum level of severity” for each category (Ireland v UK).

Threshold of ill-treatment
Relevant factors:
duration of the treatment,
physical or mental effects,
purpose of the treatment (to humiliate or debase the victim?)
sex, age and state of health of the victim -see for example Jalloh v Germany and Price v UK

Definition of torture (1)
The prohibition on torture also part of customary international law and many international instruments.

A high threshold applies because a special stigma attached to deliberate infliction of inhuman treatment causing very serious and cruel suffering.

Definition of torture (2)
The definition in UNCAT:

The infliction of severe mental or physical pain or suffering;
The intentional or the deliberate infliction of the pain;
The pursuit of a specific purpose (gaining information, punishment or intimidation).

Adopted for ECHR Akkoc v Turkey

The Dividing Line?
Ireland v UK : the five techniques of
wall-standing,
hooding,
subjection to noise,
deprivation of sleep, and
deprivation of food and drink
During the interrogating suspected terrorists was inhuman and degrading treatment but not torture.
Treatment on arrest or in custody
In custody the threshold for inhuman treatment is lowered.
Any recourse to physical force in respect of a person deprived of his liberty not strictly necessary is an infringement of Article 3 because it has the effect of diminishing the human dignity of the individual involved – Ribitsch v Austria.

In custody
Bouyid v Belgium, a slap in custody is breach:
“diminishes human dignity constitutes a violation… [and the] use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question.”
Deliberately cruel acts may be inhuman treatment: Selcuk & Asker v Turkey , Dulas v Turkey & Bilgin v Turkey

Discrimination and Article 3
Discrimination against an individual or group of individuals may amount to a violation of Article 3 – East African Asians v UK Comm Report, Cyprus v Turkey

Onus on state
State must provide an explanation for an injuries caused to a detainee in police custody and demonstrate that they were necessary and that no more force than was necessary was used (Tommasi v France).
Arrest and Art 3: Examples

Use of force must be strictly necessary and proportionate (Tzekov v Bulgaria).

Strip search in own home because it was invasive and debasing and not necessary and justified for security reasons – Weiser v Austria .

Restraint (1)
Handcuffing during the course of an arrest in general will not reach the minimum level of severity necessary to amount to degrading treatment, provided the arrest is lawful and does not involve any more force or public exposure than is necessary in the circumstances -Raninen v Finland .
Restraint (2)

Where handcuffs are used in the course of an unlawful detention or arrest or goes beyond what is necessary in the circumstances there may be a violation.
Gordiyenko v Ukraine violation where Court “not convinced that it was indispensable to use the force against the applicant, including his handcuffing”

Restraint (3)

Restraint accompanied by beating likely to be violation – Rehbock v Slovenia.
Handcuffing and mechanical restraint must not be used as punishment (Tyrer v UK).

Procedural Protections (1)
Judges play key role to guarantee rights to:
have the fact of detention notified to family, friend or consulate;
confidential access to a lawyer, visited by lawyer and right for lawyer presence during interrogation; and
access to doctor and medical examination, out of hearing and preferably out of sight of police officers.
(2nd General Report of CPT, Korobov v. Ukraine)

Detention
Detention conditions violate Article 3 where they degrade the prisoner (Peers v Greece; Kalashnikov v Russia).
In assessing conditions consider:
age,
sex,
health,
danger they pose,
any special needs that require special care,
and whether unconvicted prisoner.
Police Custody
cell should be reasonable size for the number of people,
adequate lighting and ventilation,
a means of rest,
clean mattress and blanket,
clean toilet facilities and access to washing,
regular food and one full meal a day and other refreshment (CPT standards).

Prison conditions: factors
length of detention,
overcrowding,
absence of sleeping facilities (Dougouz v Greece),
sanitary conditions,
natural light,
access to outdoors,
short periods in bad conditions may be violation (Fedotov v. Russia,Sizarev v Ukraine)
Solitary confinement

Solitary confinement should not be prolonged,
not imposed on a remand or juvenile prisoner,
sensory and social isolation combined are unjustifiable as these can destroy personality(X v Denmark).
Access to care in prison

Absence of healthcare could result in a violation (McFeeley v UK, Keenan v UK).
Kudla v Poland: Conditions detention should not exceed level of suffering in inherent in detention and health and well being need to be secured by provision of medical attention.

Other Conditions
Force-feeding an individual may amount to inhuman or degrading treatment (X v Germany).
Nevmerzhitsky v Ukraine force feeding on hunger strike only if necessary to save life.
Handcuffing of prisoners with terminal illnesses to a hospital bed can amount to a violation of Article 3 (Henaf v France).

Female detainees

access to sanitary and washing facilities,
provision of female hygiene items, and
safe disposal arrangements blood-stained articles.
Medical staff should have training in women’s health issues (CPT, Third General Report).

Sexual assaults in custody
Rape of detainee by official amounts to torture Aydin v Turkey.
Obligation to protect detainees from sexual and other assaults by other prisoners.
Women should be held in separate accommodation.

Searches

Intimate & Strip searches may constitute degrading treatment
must be conducted in an appropriate manner which did not unnecessarily diminish the detainees human dignity (Valasinas v Lithuania).

Treatment in detention – special needs

Price v UK and D.G. V Poland keeping a prisoner, a wheelchair user, and/or detaining for 18 months in prison that was unsuitable for persons with physical disabilities was violation.
Article 6 issues (1)

Evidence obtained by torture will not be admissible in court under any circumstances, even where it does not constitute crucial or decisive key evidence against the accused (Yusuf Gezer v. Turkey).
Article 6 issues (2)
Evidence obtained against the will of the accused may need to be excluded by Article 6 – but not where the evidence on which the conviction was based was not related to the coercion.
Use of evidence discovered by threats of ill-treatment not contrary to Article 6 where the defendant admitted his guilt later (Gäfgen).

Dignity in custody: a slap and a violation

Case analysis: see more detailed article in European Human Rights Law Review (forthcoming), summary below 

Bouyid v Belgium (App. No. 23380/09), Grand Chamber judgment of September 28, 2015

http://hudoc.echr.coe.int/eng#{“languageisocode”:[“ENG”],”documentcollectionid2″:[“GRANDCHAMBER”],”itemid”:[“001-157670”]}

This case concerns Article 3 and the precise threshold of the nature of what kinds of ill-treatment will constitute inhuman or degrading treatment on arrest and in detention. The Grand Chamber overturned the Chamber judgment in this case and declined to follow previous established case law, concluding that an unjustified and unnecessary “slap” on the face by a police officer of a person arrested or detained is sufficient to cross that threshold. Such an assault is no longer “in principle” a violation of Article 3 but is not subject to any exceptions. Three judges dissented from the majority of the Grand Chamber on this point.

The Court, unanimously, also found a violation of the procedural duty in Article 3, the duty to ensure there is an independent and effective investigation into the allegation of ill-treatment in custody. The lowering of the threshold and the nature of the relatively new procedural duty combined may require an extension of the mandate and practice of police complaints and oversight bodies.

 

Human Rights in the United Kingdom: New Jurist article 15the September 2015

In October 2014, the day after their annual conference ended, the Conservative Party announced new and radical proposals. The announcement stated:

“At the heart of the reform will be a new British Bill of Rights and Responsibilities that will restore common sense to the application of human rights in the UK. A draft of the Bill will be published for consultation before Christmas.

Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using human rights to prevent deportation. It will make it clear that people have clear responsibilities to society, and that there is a proper balance between rights and responsibilities in British law.

The Bill will remain faithful to the basic principles of human rights which the United Kingdom signed up to in the original European Human Rights Convention, but it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of society as a whole. …”

However:

a. “These proposals threaten to create domestic constitutional difficulties and to undermine our international reputation and influence for entirely illusory benefits.
“It ought to be obvious to the paper’s authors that such an outcome is impossible without destroying the Convention’s effectiveness. Why should a state subject to an adverse judgement comply with it if the UK can ignore its own? The proposal undermines entirely the principles that underpin international law. It represents a failure of ambition by the Conservative Party on the global promotion of human rights, and is contrary to the line we have previously maintained in government.”

b. “Travellers will be expected to obey planning laws and keep out of green belt land, even where no provision has been made for lawful sites for them and their families. ‘Foreign criminals’ will be unable to use rights to family life to avoid removal. Rights are not for criminals, particularly foreigners, villains, or other undeserving folk. At a stroke, the notion of universal human rights disappears. And the other thing that will disappear is judicial independence — the careful, case-by-case judicial balancing of personal rights against public interest considerations, a balancing process which lies at the heart of the Convention, but is in danger of being swept away by restrictive blanket rules.”

The Conservative proposals in summary:

For domestic law

• the repeal of the Human Rights Act;

• enactment instead of a ‘British Bill of Rights and Responsibilities’;

• the Bill will not include the requirement (currently in section 2 of the HRA) to have regard to decisions of the Strasbourg court;

• instead the Bill will require to the UK courts only to take account of the substantive text of the ECHR (not the jurisprudence of the ECtHR), so that Convention rights “are applied in accordance with the original intentions”;

• the Bill will set out some specific limitations and exemptions to the rights currently enjoyed under the Human Rights Act. In particular:

1- to limit the “use of rights to the most serious cases” (presumably right to life, torture, slavery, freedom from arbitrary detention, fair trial and freedom of expression but not privacy, protest or anti-discrimination),
2- to prevent rights applying to the “British Armed forces overseas”, terrorists and serious criminals “who pose a significant threat to the security and safety of UK citizens” would lose their right to stay in the UK, and

3- “no one will be able to claim human rights to step outside the law”, the example used here in the paper is of travelers using the right to a home to challenge planning decisions;

In relation to the European Court of Human Rights

• “Every judgement that UK law is incompatible with the Convention will be treated as advisory” and a new parliamentary procedure will be introduced to consider such judgments, which “will only be binding in law if Parliament agrees that it should be enacted as such”
• During the passage of the Bill the government will try to negotiate with the other member states in the Council of Europe “to seek recognition that our approach is a legitimate way of applying the Convention. In the event we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights.”

• In addition, the government would ensure that the current discussions over the accession of the European Union and its constituent bodies to the ECHR took account of and respected the UK’s new approach.

• In its proposed wider negotiations with the EU pending the “in or out” referendum, a new Conservative government would address anything in the relationship between the EU and the UK “which encroaches upon our new human rights framework”. This is, presumably, a reference to the EU’s Charter of Fundamental Rights and the extent of its jurisdiction and impact but would also pick up issues raised by the free movement principles of the EU treaties.

The proposals have been condemned as unworkable by many lawyers in the UK, human rights NGOs and others. The Council of Europe itself responded to the proposals by stating:

“We take note of these proposals by the Conservative Party. We also take note they are not draft legislation. As they stand, the proposals are not consistent with the ECHR.”
Commentators have made the following observations on these:

• They are based on some factual miss-statements of law: for example wrongly stating that the Strasbourg court has banned whole life sentences’ and suggesting that the Strasbourg court’s judgments are currently binding in national law;
• It is inaccurate to suggest that British courts are bound by interpretations of Convention rights by the Strasbourg courts: section 2 is only a duty to have regard to them, and indeed, section 3(2) prevents courts from interpreting law compatibly with Convention rights as interpreted by the ECtHR if legislation expressly requires this;

• The suggestion that the living instrument doctrine will be abolished – as a matter of domestic law – would have the odd and perverse effect that interpretation of the ECHR would be stuck in the 1950s when the Convention was drafted, so that situations which were not in contemplation at that time (such as legal recognition of same-sex relationships; or consideration of the legality of retaining DNA) could not be tested by reference to how the core values of the Convention apply to 21st century problems;

• The suggestion that protection of rights would be limited to ‘the most serious cases’ begs the question of who decides what are ‘the most serious cases’: it is implicit that the legislature would seek to bind the hands of the courts on what is regarded as sufficiently ‘serious’ to enjoy protection, in contrast to the present position whereby the courts decide whether infringement of a qualified right is proportionate in the circumstances, which include the extent of interference with the underlying right;

• The proposal to prevent rights applying to British Armed forces overseas would overturn the Smith judgment of the Supreme Court and the Al-Skeini judgment of the Grand Chamber of the ECtHR, so domestic law on the extent of the United Kingdom’s ‘jurisdiction’ would be at odds with the concept in international law. It would also mean that a victim of a breach of human rights abroad (whether a British soldier qua victim or victim of a British state agent) would have a direct remedy only in the ECtHR in Strasbourg;

• The suggestion that some criminals and suspected terrorists would lose their Article 2 and 3 rights in respect of removal to countries would again put domestic law on a collision course with well-established Strasbourg caselaw in cases like Soering v UK (1989) 11 EHRR 439 and Chahal v UK (1996) 3 EHRR 413. It also seems incompatible with the fundamental principle of equality before the law, and the absolute nature of the rights to life and freedom from torture. Irrespective of the position of the UK in relation to the ECHR it would be a breach of the European Convention for the Prevention of Torture, the UN Convention Against Torture and the ICCPR to allow a person to be sent out of the UK to another country if they are likely to be tortured in that other country. Therefore the idea that the proposals can create a situation where “those who pose a national security risk to this country or have entered it illegally cannot rely on questionable human rights claims to prevent their deportation” is highly questionable.

• If ‘no-one will be able to claim human rights to step outside the law’, there would be no mechanism in which a domestic court can test the compatibility of statutory provisions with human rights standards (in contrast to the present system where a court which considers that a statutory provision is incompatible with human rights standards can make a declaration to that effect). For example a law prohibiting gay sex (such as existed in Northern Ireland until the judgment in Dudgeon v UK (1981) 4 EHRR 149 would be unassailable in domestic law.

• A law which rendered Strasbourg judgments ‘advisory’ only would breach Article 46 ECHR, which requires signatory states – as a matter of international law – to abide by judgments against them. It is inconceivable that the Council of Europe could agree to this. If – as the Secretary of State for Justice suggests – Britain would then withdraw from the Council of Europe, it would be the only country in Europe not to be a member other than Belarus, and the only country ever to withdraw from a human rights instrument which it had signed apart from Venezuela, and North Korea.

• The suggestion that the government would “ensure” that the current discussions over the accession of the European Union and its constituent bodies to the ECHR took account of and respected the UK’s new approach could only mean a veto.

Following the election, and with a new Secretary of State for Justice, Michael Gove, the new government has promised a consultation document by the end of 2015. The criticisms of the October 2014 might therefore result in some slightly different proposals.

The Human Rights Act 1998 came into force fifteen years ago and the Act continues to have a profound effect on domestic law, substantially strengthening the legal protection afforded to human rights in the United Kingdom. Where citizens once had ‘negative’ liberties—no more than the residue of rights left over after the law had been obeyed—they now enjoy positive freedoms and the power to enforce them. The Human Rights Act has been used to hold the Government and public authorities to account in a multitude of contexts—preventing the indefinite detention of foreign terrorist suspects, broadening the ambit of procedural justice, recognizing the rights of transsexuals to marry someone of their original gender, protecting the right to freedom of speech, even when it offends, ensuring that the state does not retain the DNA records of innocent people. If it was ever a matter of doubt, it is now plain that the Human Rights Act can no longer be regarded as just another statute. Rather it places on an ever-speaking statutory basis an assumption that certain legal norms are fundamental and underpin all other statutory interpretation. Lord Justice Laws placed it in a category of ‘constitutional statutes’ which include the Magna Carta and the European Communities Act 1972, and the Government accepted its status as a ‘received part of our constitutional arrangements’. However the number of cases going to the Strasbourg Court has not yet been stemmed, and the decisions of appeal courts in the United Kingdom are often ‘overturned’ by the European Court of Human Rights:

“…there have been no fewer than 10 occasions on which the European Court of Human Rights has issued a judgment which is at variance with that which was earlier reached by the House of Lords.”
This can be seen as a positive mechanism of dialogue between national and international law norms, and a valuable part of the new constitutional settlement.

The Act, however, continues to be condemned by the popular press however as a ‘villains’ charter’ that privileges the rights of unpopular minorities (often the criticisms concern non-British citizens “taking advantage” of the Act) over the law-abiding majority, while the judiciary (both from the UK courts and the judges in Strasbourg) is damned for its usurpation of democratic power. These accusations are – at least when the details of the cases are analysed – unwarranted. Despite common misconceptions to the contrary, the Human Rights Act does not allow courts to strike down legislation that violates fundamental rights. Instead, the Act strikes a careful balance between parliamentary sovereignty and judicial oversight that enables the courts only to issue a declaration of incompatibility where a legislative provision is incapable of being read compatibly with Convention rights. Ministers (and Parliament) make the final decision as to whether or not to amend legislation which has been held incompatible with the Convention. Though it is under no legal obligation to do so, governments usually respond to declarations of incompatibility by changing legislation (albeit generally after an appeal and some delay). But they do not have to do so as a matter of national law: and indeed, in the celebrated impasse over prisoners’ voting rights, they have not done so.

Consequently, the Supreme Court has held that it would be inappropriate for it to make any further declaration of incompatibility on this subject: the legislature and executive now have the judicial view on this subject and its constitutional role is at an end . Rather than judicial usurpation, this model of rights protection ought to be characterized as healthy democratic dialogue, and it leaves in place the British dualist legal tradition, in which international legal obligations are applied in national courts only if and to the extent they are incorporated into national law by statute. The late Lord Bingham summed up the position in his powerful and eloquent speech in the Belmarsh case concerning detention of terrorist suspects:

I do not in particular accept the distinction between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.

The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues.

In any event, contrary to some press accusations, the application of the Human Rights Act by the judiciary has been cautious. The approach to section 2 of the Act, which demands that Strasbourg cases are ‘taken into account’ in interpreting Convention rights, illustrates the restraint with which the judiciary has approached its new powers. In an attempt to avoid being labelled judicial activists, the House of Lords and the Supreme Court have developed the ‘no more, no less’ approach to Strasbourg cases and arguably frustrated the creation of a progressive domestic rights jurisprudence on interpretation of Convention rights in the British context. It is necessary only to look at those decisions of the House of Lords and Supreme Court that have been re-considered by the Strasbourg Court to see that English courts regularly adopt a narrower interpretation of the Convention rights even than the long-stop Court in Strasbourg.

The Conservative Party went into the 2010 general election vowing to abolish the Human Rights Act and to substitute it with a ‘Bill of Rights’. The Coalition Government then set up a Commission to investigate the creation of a Bill of Rights that incorporates and builds on the European Convention. The Commission failed to reach a consensus on what, if anything, needed to change. However some members of the Commission expressed concern that the debate in the Commission was moving towards a discussion of removing rights, and particularly towards withdrawing from the ECHR.

Fury over the Human Rights Act reached fever pitch again as a result of the long-delayed legislation brought forward to give prisoners the right to vote in line with the decision of the European Court in Hirst v UK (No 2) in 2006. The media and many politicians denounced the Convention and called for the United Kingdom to remove itself from the jurisdiction of the European Court. The Government partly responded by using its chairmanship of the Council of Europe to push on with further reforms of the Court to ‘rebalance’ its relations with national courts. This resulted in the “Brighton Declaration” and in turn, two new protocols, the first of which, protocol 15, will impose (amongst other things) further restrictions on access to the Court and, might push the Court to be more “careful” in its judgments (see Chapter 9 for more details). Although the UK’s initial proposals for reform were watered down, pressure for reform has led to a wider ranging review of the long term future of the Court, the consequences of which are difficult to predict.

The judiciary has taken note of the political heat surrounding human rights law and recent domestic decisions from the Supreme Court and Court of Appeal suggest increasing judicial willingness to assert the power of the common law to resolve human rights claims. If the Human Rights Act is repealed, we can expect the courts to turn to other sources of protection for fundamental rights.

These extracts from a lecture by the recently sacked Attorney General, Dominic Grieve, best sums up the postion :

“Indeed looking carefully at the paper my Party has produced on changing our relationship to the ECHR, I am struck by the paucity of concrete examples of Strasbourg mission creep that are identified, to justify a case for change.”
“It is difficult to avoid the conclusion on reading the paper that the real problem for its authors is not so much the interpretation of the Convention by the Strasbourg Court or indeed our own domestic courts but the frustration that an international legal obligation prevents the UK government from being able to ignore judgments when it considers that they are adverse to its view of what is in the public interest.”

“Such a course may be strictly lawful, but its practical consequences are likely to be as devastating both for ourselves domestically as it will be for the future of the Convention.

Domestically, our non-compliance with the Convention calls into question the Devolution settlements for Wales, Scotland and Northern Ireland which enshrine Convention rights as governing all their actions. Parliament at Westminster could, of course, legislate to change the position, but there is evidence that this would be against the will of the devolved administrations.

In the case of Northern Ireland, it is also part of the Good Friday Agreement, an international treaty. At a time when the future of the United Kingdom is still in question and the peace settlement in Northern Ireland still fragile, it opens the prospect of a new area of political discord quite apart from the possibility of our courts having to operate different rights systems in one country.”

“That is why it is inconceivable that we can negotiate a special status for ourselves within it and why our departure as one of its principal creators and supporters will be so damaging to it. It is already the case that countries such as Russia are using the UK position to try to procrastinate on implementing judgments. Indeed the effect of our conduct will go further as the UK’s ambivalence is being cited by countries such as Venezuela in ignoring obligations under the American Convention on Human Rights arising prior to its denunciation of it in 2012 and citing Britain’s approach as a justification and by the president of Kenya over the jurisdiction of the ICC. It bodes ill for all whose lives have been or could be beneficially affected by the existence of the Convention and the work of the Strasbourg Court and by Human rights conventions generally. It flies in the face of all the good work done internationally by the UK government to promote human rights for so long. I have to say that as a Conservative this pains me. Whatever the challenges the Convention has posed and I accept that there are some proper grounds to criticise its operation, the failure of ambition represented in the Paper and the narrowness of its moral and political vision is very disappointing.”

Reform of the Human Rights Act has been under consideration almost since its inception. It was as far back as 2007 that former Prime Minister Gordon Brown published a Green Paper and a statement exploring the possibility of a British Bill of Rights as part of a wider programme of constitutional reform. The JCHR contributed to the debate by undertaking a formal inquiry into a Bill of Rights, which reported in August 2008. It found that the case for a Bill of Rights had been made out, but emphasized that the Bill could not be a vehicle for diluting the protections of the Human Rights Act; rather, it should add to those rights already protected.

In March 2009, the Labour Government formally launched the consultation process into a Bill of Rights in the publication by the Ministry of Justice of its long-awaited Green Paper, Rights and Responsibilities: Developing our Constitutional Framework. The Green Paper set out preliminary proposals for a ‘Bill of Rights and Responsibilities’, but the 2010 general election intervened before the consultation was completed. The Conservative Party went into the 2010 election with a commitment to repeal the HRA but the Liberal democrats wished to see it preserved. The founding document of the Coalition Government resolved this disagreement as follows:

“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”
The Commission that was established reported at the end of 2012 but there was, however, no consensus on what, if anything, needed to change. However there was concern by some members of the Commission that the debate in the Commission was moving away from the objectives set out in the Agreement towards a discussion of removing rights, and particularly towards withdrawing from the ECtHR.

Scotland, Wales and Northern Ireland

The extent of protection for human rights in Scotland, Wales and Northern Ireland is different from that in England because although the Human Rights Act applies in the same way as in England, the devolution legislation also requires additional compliance with the ECHR. So, for instance, in Scotland, the Scotland Act states that an Act of the Scottish Parliament

“is not law so far as any provision of the Act is outside the legislative competence of the Parliament [if] it is incompatible with any of the Convention rights or with EU law.”

There are similar restrictions on the assemblies and executive in Wales and in Northern Ireland. The repeal of the Human Rights Act itself would not change these provisions. If they remained in place then people in those jurisdictions would have different (more) rights in relation to the acts of the devolved administration (including most public services, including the police in Northern Ireland and Scotland) compared with non-devolved matters like immigration or defence. Where these provisions did not apply – in England – people would have no such rights regardless of the nature of the authority that violated them. Amendments to these devolution provisions require the consent of the relevant devolved Parliament or Assembly.

The situation in Northern Ireland is not only complicated by the law creating the devolution settlement (see above) but also because of the “Good Friday Agreement”. The settlement is an international treaty binding the UK and the Republic of Ireland and would require the consent of both to vary it, not least the political parties in Northern Ireland. The agreement states:

“The British government committed to incorporate the European Convention of Human Rights (ECHR) into the law of Northern Ireland and to the establishment of a Northern Ireland Human Rights Commission.”
The situation is more complicated because alongside this requirement was a requirement to develop a Bill of Rights for Northern Ireland, going beyond the provisions of the ECHR. The Northern Ireland Human Rights Commission consulted widely on a draft Bill and published their final draft in 2008 but there was no political consensus on their proposals and no progress has been made.

The Council of Europe

Article 58 of the ECHR allows a state party to denounce the Convention and withdraw from the jurisdiction of the Court on giving six months’ notice. For ongoing or existing cases a denunciation does not prevent the Court giving judgment or compensation being ordered.

Given the importance of the Convention for the Council of Europe (all its member states have ratified the Convention) the UK’s position as a continuing member would raise difficulties.

The Statute of the Council of Europe states:
Article 3
Every member of the Council of Europe 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 as specified in Chapter I.
Article 7
Any member of the Council of Europe may withdraw by formally notifying the Secretary General of its intention to do so. Such with¬drawal shall take effect at the end of the financial year in which it is notified, if the notification is given during the first nine months of that financial year. If the notification is given in the last three months of the financial year, it shall take effect at the end of the next financial year.

Article 8
Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

No state has ever been expelled but Greece, during the time of the military junta, withdrew. Withdrawing from the ECHR itself does not necessarily mean that the UK would not be upholding the values set out in Article 3 of the above statute but the expectation of all members states since the readmission of Greece and the admission of Portugal and Spain has been that they would ratify the ECHR and sign up to the right of individual petition and the jurisdiction of the ECtHR. It might be now that accepting the jurisdiction of the ECtHR is now seen to be implicit in Article 3 but probable this is a political not legal question. The question might well be would the effect of expulsion deter other states from pursuing the same path.

Greece, following the installation of the Colonels’ military dictatorship in 1967, withdrew from the Council of Europe in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime. Turkey was suspended, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place. Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

At present the ECtHR system is subject to a fundamental and long term review and in November 2013 the Council of Europe initiated a further consultation exercise:

“…holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights. This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court.”

About the Author
John Wadham
John Wadham is a human rights expert and solicitor; previously leading INTERIGHTS (Executive Director), Equality and Human Rights Commission (General Counsel), Independent Police Complaints Commission (Deputy Chair) and Liberty (Legal Officer, Director of Law and CEO).

Associate of Doughty Street Chambers, member of the Human Rights Committee of the Law Society, Visiting Senior Research Fellow at Kings College, London; Visiting Lecturer at the University of Auckland and the University of Leicester. Co-author of Blackstone’s Guides on: the Human Rights Act; the Freedom of Information Act; and the Equality Act.

Currently independent consultant and expert for the Council of Europe and others.

– See more at: http://newjurist.com/human-rights-in-the-uk.html#sthash.8uBTgoTY.dpuf

Accountability and independence for public bodies designed to protect and promote equality and human rights

(Article reproduced from “Beyond 2015: shaping the future of equality, human rights and social justice” http://www.edf.org.uk/blog/?p=36975 )

Accountability for arm’s-length bodies is confused, overlap- ping and neglected, with blurred boundaries and responsibil- ities. A taxonomy would simplify and rationalise the structure of the state.1

Meanwhile

The Cabinet Office has tightened controls over and moni- toring of public bodies to improve accountability, including operating the new expenditure controls system that applies
to departments and NDPBs [non-departmental public bodies]: further work needs to be undertaken to establish the impact

of these controls, including on accountability.2

This paper argues that bodies with a role in holding the govern- ment to account, protecting the rights of the citizen or promot- ing equality or human rights should be sponsored, supported and accountable directly to Parliament and not to government departments or to ministers. In ‘Read before burning: Arm’s- length government for a new administration’, the authors suggest a new classification of such bodies:

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The guiding principle is that the classification is determined by the degree of freedom from executive control on appoint- ments, strategy, decisions and budget, which the body needs to be able to discharge its functions.3

Thus:

The first category is the constitutional bodies like the Electoral Commission, the National Audit Office and the Parliamentary Ombudsman. These are deliberately put at the greatest distance from ministers to preserve the independence which is core to their ability to perform their tasks and to protect them from ministerial interference in the exercise of their judge- ment. Their primary accountability is to Parliament rather than to the executive.4

The National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman already report to Parliament. The Select Committee on Public Administration has recommended that the Information Commissioner and HM Inspectorate of Prisons should also report to Parliament.5 The author has had experience of two public bodies where such better arrangements should apply – the Equality and Human Rights Commission (EHRC) and the Independent Police Complaints Commission (IPCC).6 That experience is the basis of the arguments made here, although there are likely to be other good candidates for the enhanced status recommended.7

The EHRC has a distinctive constitutional role in Britain’s dem- ocratic system in holding the government to account. This was
the opinion of Parliament’s Joint Committee on Human Rights (JCHR) prior to the Commission’s establishment.8 The JCHR said that the EHRC has a similar role constitutionally to the Electoral Commission, the National Audit Office and the Parliamentary

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Commissioner for Administration.9 The EHRC also requires inde- pendence from government in relation to its structures, functions and the exercise of its powers as a requirement of the UN’s Paris Principles for National Human Rights Institutions.10 The EHRC also needs to be seen to be independent: without proper distance the EHRC might be perceived as less likely to take legal action against a government.

In June 2011, when the government was suggesting that
it might amend (reduce) the EHRC’s powers, Rosslyn Noonan, Chair of the United Nations International Coordinating Committee (ICC) (the international co-ordinating body for human rights commissions), wrote to the Home Secretary stating:

Given the particular constitutional place of national human rights institutions in the architecture of the State, it is critical that any amendment to their mandate, structure, powers and functions be carried out through a parliamentary process which is open, transparent and with opportunity for public submissions. Secondary legislation does not meet those criteria and places undue power over the EHRC in the hands of the Executive, whose compliance with human rights standards the EHRC is required to monitor.11

The Joint Committee for Human Rights took a similar view when it was considering the original proposals for the setting up the EHRC, stating:

… the standard model of NDPB accountability is [not] a suffi- ciently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission).12

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In relation to the IPCC, the European Court of Human Rights, when assessing the independence of its predecessor, the Police Complaints Authority, and the nature of the government appoint- ment of board members (which follow the same model as the IPCC) said:

The Court also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the Police Complaints Authority. In particular, the Court observes that under section 105(4) of the Act the Police Complaints Authority is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

Accordingly, the Court finds that the system of investi- gation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. There has therefore been a violation of Article 13 of the Convention [the right to an effective remedy].13

The ‘Police Oversight Principles’ developed by police oversight bodies across Europe (and modelled on the Paris Principles) also recommend that police oversight bodies like the IPPC are accountable to parliaments and not to the executive.14

In 2014, Nick Hardwick, then Chief Inspector of Prisons, illustrated the problems with the current arrangements between independent inspectorates and their sponsors:

Told MoJ ministers & officials I won’t be reapplying for my post. Can’t be independent of people you are asking for a job.

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This was his response in a tweet after Chris Grayling (then Secretary of State for Justice) made public his decision not to renew Hardwick’s five-year contract after it’s expiry in July 2015.15

The Public Accounts Committee reviewed the issue of the independence of the criminal justice inspectorates in March 2015 and concluded:

There is a risk that the independence of the inspectorates
is undermined by the current arrangements for appointing Chief Inspectors and setting their budgets. Chief Inspectors were clear that the independence of how they conducted inspections was not in doubt. However, decisions on the appointment of Chief Inspectors, the length of their tenure, and the size of their budgets, are taken by the relevant secretar- ies of state responsible for the sectors under inspection, rather than by bodies independent of that responsibility, such as the Cabinet Office or Parliament. Current arrangements poten- tially pose a significant threat to inspectorate independence.16

and

Changes made by the Home Office to the publication arrange- ments for reports by the Chief Inspector of Borders and Immigration undermine his independence and have delayed publication of his reports. The Chief Inspector of Borders

and Immigration is in a unique position amongst home
affairs and justice inspectorates of directly inspecting his own sponsoring department, the Home Office. The independence of the inspectorate relies on the actions of the Chief Inspector, principally through preparation of well-evidenced and thor- ough reports. But this independence is undermined by current arrangements whereby the Home Secretary now decides when to publish his reports. Since the inspectorate was established

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in 2008, the Chief Inspector decided when to publish his own reports, but this changed from January 2014 to the Home Secretary in the light of legal advice sought by the Home Office on how to interpret the UK Borders Act 2007. Contrary legal advice suggests that the Home Office’s interpretation is neither the obvious nor the only interpretation.17

The IPCC: examples of the need for
greater independence
Immediately after the shooting of Jean Charles de Menezes
at Stockwell underground station the Chief Constable of the Metropolitan Police, Sir Ian Blair wrote a letter to the Home Office (the IPCC’s sponsor) stating that ‘the shooting that has just occurred at Stockwell is not to be referred to the IPCC and that they will be given no access to the scene at the present time’.18 Despite the fact that this refusal by the police to give the IPCC access was unlawful, the IPCC then had to enter into three-way negotiations with its sponsor (the Home Office) and the police before access was granted, leading to a delay of three days.

In the same case the Deputy Chair of the IPCC was summoned one early evening to see one of the three Permanent Secretaries of the Home Office to discuss the merits or otherwise of its decision to disclose crucial information the next day to the family of the deceased at a time when the media was awash with speculation and erroneous accounts of how Jean Charles de Menezes had died.19 The IPCC ignored the advice proffered but the fact that the Home Office felt it could take such a step creates its own difficul- ties and conflicts. It was, of course, this same Home Office that would later decide whether or not the Chair, Deputy Chair and other Commissioners would be re-appointed to their posts.

A last example from the IPCC, follows the investigation of the shooting of Azelle Rodney by the Metropolitan Police. It was clear to the IPCC that, for legal reasons, there had to be a formal inquiry

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into his death under the Inquiries Act 2005 (rather than merely an inquest). However, when the IPCC put this to the Home Office, the feedback from the sponsor unit (also in the Home Office) was that the IPCC was wrong about the law and that no formal inquiry was required.20

These examples suggest that there are two separate problems with the current constitutional arrangements. The first is that the government sponsors for these bodies are too closely concerned with the substance of what they do, rather than with ensuring financial and other procedural accountabilities. There is an obvi- ous conflict of interest in, for instance, the Government Equalities Office (the sponsor for the EHRC), having both a governance
and a parallel (and sometimes conflicting) policy role. Secondly, and more fundamentally, there will always be significant conflicts of interest between such bodies and their government masters because these bodies have a duty to hold government to account and in many cases, to litigate to ensure compliance.

The EHRC: examples of the need for
greater independence
The EHRC suffered from similar pressures from sponsoring civil servants and ministers to those discussed above. Under the Labour government, the author’s experience was that sponsor ministers encouraged the EHRC to use its investigatory powers
in specific and particular areas.21 Although these suggestions were generally viewed as helpful and the resulting reports were important, they originated from the very same people who decided on the appointments and re-appointments of the board and the budget of the organisation as a whole. How happy would the government sponsors have been if the EHRC had refused their suggestions?

The EHRC was caught by budgetary restrictions at the begin- ning of the period of austerity in the public service immediately

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following the 2010 election of the Coalition Government. The government went further than many expected in imposing cuts
in the budget by assuming that the EHRC was merely another
part of the government and that the EHRC would be obliged to follow the recruitment freeze imposed by government on its own departments. Permission from the government had to be obtained before vacant posts could be filled and was only usually permitted by recruiting staff from elsewhere within the civil service. This of course raised issues of independence and also assumed that staff seconded or transferred from government departments would

be able to easily switch their loyalty to a body whose function required a critical assessment of fundamental government policies.22 This in turn created tensions with the United Nations Paris Principles.23 It also raised questions about whether such a restriction on recruitment was indirectly discriminatory (given the age and ethnic minority profile of the majority of civil servants) – a difficult issue for an equality body set up to promote greater fairness and diversity.

At the most fundamental level one of the EHRC’s primary functions was to promote human rights (and specifically the Human Rights Act 1998)24 but at the same time its most senior sponsor was the Secretary of State at the Home Department,
the Rt Hon Teresa May, whose party is on record as intending
to ‘scrap the Human Rights Act’.25 It was her department’s civil servants (as the sponsors) that had the job of helping the EHRC
to do its job, decide its budget, advise her on the appointment
or re-appointment of its Commissioners and Chief Executive. Crucially, they also had responsibility for authorising publication of the Commission’s formal review and report of the UK’s human rights record. Publication of the report was initially delayed in order to correct inaccuracies it contained – and in fact EHRC staff found civil servants very helpful in making suggestions to improve the content, and felt that the report was much better as a result

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of their input. The report was finally published in March 201226 and immediately met with detailed and hostile criticism from some sections of the media – criticism of both the report and the Commission itself.27

It is important that bodies that have a constitutional and democratic role in ensuring that other public bodies, including the government, comply with the law including human rights obligations are – and are perceived to be – completely independ- ent from any government influence. Parliamentary accountability would provide them with the appropriate independence to fulfil this role impartially.

Under the current arrangements, the Government depart- ment that sponsors such non-departmental public bodies
often has a policy role that overlaps with the work of the body
in question and ministers and officials often have a particular interest in the substance of that body’s work, not merely in
issues of governance and financial accountability. There are
no mechanisms to ensure that this does not lead to attempts at different levels to interfere or influence the independent body’s actions. There is a risk that the short-term agendas of government are given precedence over long term and necessary changes to the bodies being regulated or inspected.

Chairs, commissioners and chief executives that are appointed (and subject to re-appointment) by government28 can be pre- sented with real difficulties and conflicts of interest which, in
high profile or controversial cases, can cause considerable soul searching and do not always create the rights circumstances for independent decision making.

It is also likely that a more politically plural board would result from greater independence in the appointments process
as appointments would no longer be made by the majority administration and longer term consistency could be established. In addition, the EHRC had four different sponsor departments in

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its first few years merely because it had to follow its lead minister – the minister for equality – as she or he was relocated, and that minister also had a series of other, larger responsibilities which were attached to a series of different major departments of state.

It is important to note that in the United Kingdom the practice of reporting to Parliament is being effectively used elsewhere for human rights commissions. For instance, The Scottish Human Rights Commission reports directly to (but remains independ- ent from) the Scottish Parliament and has its budget set by the Scottish Parliament.

In England, the Office of the Children’s Commissioner has been made more accountable to Parliament in addition to increasing the powers of the office. However these changes stop short of making the Commissioner directly accountable to Parliament (rather than to a government minister).29

Conclusion

The new government after May 2015, however it is made up, should be encouraged to enhance the theoretical and practical independence of those bodies which promote and protect rights, remove the ability of the government to influence them ‘infor- mally’ and ensure that they are accountable directly to parliament. The review by the Public Bodies Review Team of the classifications of arm’s-length bodies and the report from the Public Accounts Committee provide a perfect opportunity to do this although
the specific legislation which creates those bodies will require significant amendment.

Endnotes

1. Public Administration Select Committee (2014). Who’s accountable? Relationships between Government and arm’s-length bodies. PASC.

2. Skelcher, C. et al (2013). Public Bodies Reform by the UK Government 2010–2013:

Initial Findings. Shrinking the
State. Research Paper 1, p.9. University of Birmingham and University
of Sheffield.

3. Institute of Government, July 2010, p. 55.

4. Op. cit., p. 56.

5. Public Administration Select Committee (2014), Op. cit.

6. The author was previously the Group Director, Legal and was General Counsel of the Equality and Human Rights Commission from 2007 to
2012. He was the Deputy Chair of
the Independent Police Complaints Commission until 2007.

7. Such as the Chief Inspector of Prisons, the Children’s Commissioner and others.

8. Joint Committee on Human Rights, Eleventh report of session 2003–04, 2 April 2004, and Sixteenth report session 2003–04, 21 July 2004.

9. Ibid, Eleventh report, paragraphs 113–143 and Sixteenth report, para- graphs 44–52.

10. OHCHR (1993). Principles relating to the status and functioning of national institutions for protection and promo- tion of human rights. Office of the High Commissioner for Human Rights.

11. Equality and Human Rights Commission (2011). Parliamentary briefing: Public Bodies Bill Committee stage, House of Commons, September 2011. EHRC.

12. Joint Committee On Human Rights, Sixth report of session 2002–03.

13. Khan V UK, 12 May 2001, paragraphs 47 and 48.

14. European Partners Against Corruption/European contact-point network against corruption (2011). Police Oversight Principles. European Partners Against Corruption.

15. The Guardian, 2 December 2014.

16. Public Accounts Committee (2015). Inspection in Home Affairs and Justice, recommendation 1.

17. Ibid, recommendation 2.

18. The Daily Telegraph, 8 November 2007, the letter (‘Letter from Sir Ian Blair to Sir John Gieve following
the shooting of Mr Jean Charles de Menezes’) is available on the Home Office National Archive website webarchive.nationalarchives.go.uk.

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19. IPCC (2007). Stockwell Two:
An investigation into complaints
about the Metropolitan Police Service’s handling of public statements following the shooting of Jean Charles de Menezes on 22 July 2005. IPCC.

20. The public inquiry was sub- sequently held finding that the shooting was unlawful and implicitly criticising the IPCC’s initial investi- gation. See The Azelle Rodney Inquiry report, 5 July 2013, available at http:// azellerodneyinquiry.independent.gov. uk/docs/The_Azelle_Rodney_Inquiry_ Report_(web).pdf. A police officer

has been charged with murder and the trial is pending (The Independent, 30 July 2014).

21. The then sponsor minister suggested three inquiries and these became the EHRC’s first three inquir- ies: Sex Discrimination in the Finance Industry, Race Discrimination in the Construction Industry and Recruitment and employment in the meat and poultry industry.

22. For instance, the EHRC’s assessment of the government’s financial decisions and the extent that they properly took into account the public sector equality duty: EHRC (2012). Section 31 Assessment of the Spending Review.

23. ‘2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding.
The purpose of this funding should
be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might
affect its independence.’ (OHCHR, 1993, Op. cit).

24. Section 9, Equality Act 2006.

25. For example, ‘Tories to Scrap the Human Rights Act’, 30 September 2013, BBC (www.bbc.co.uk/news/uk-poli- tics-24338921) and ‘Home Secretary Theresa May wants Human Rights Act axed’, 2 October 2011, BBC (www.bbc. co.uk/news/uk-politics-15140742).

26. Equality and Human Rights Commission (2012). Human Rights Review: How fair is Britain? An assess- ment of how well public authorities protect human rights. EHRC.

27. ‘It’s time to shut down this factory of meddling and nincompoopery’, Daily Mail, 6 March 2012.

28. The government does not appoint- ment the CEO of the EHRC but has a veto over appointments made by the board of commissioners.

29. Schedule 5, Children and Families Act 2014.

The Conservative Party’s Proposals for human rights: The Council of Europe and the ECHR

Introduction

 

The October 2014 Conservative Party proposals promised to:

 

“End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement. It will only be binding in UK law if Parliament agrees that it should be enacted as such.

During the passage of the British Bill of Rights and Responsibilities, we will engage with the Council of Europe, and seek recognition that our approach is a legitimate way of applying the Convention.

In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point
at which our Bill comes into effect. We would do so safe in the knowledge that the text of the Convention itself is enshrined in our own statutes, protecting human rights in line with the will of the British Parliament and the rulings of British Courts.”[1]

The Conservative Party’s manifesto included a much shorter summary of the proposals without the specific details about the relationship with the ECtHR of the Council of Europe and some commentators have taken this as an indication that those proposals have been ditched. This note proceeds on the basis that it is likely that the threat to the link with the ECtHR in the October proposals will be pursued by the new government.

The manifesto, published in April 2015, stated:

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

The Queen’s Speech on 27th May included the words “My Government will bring forward proposals for a British Bill of Rights” and the briefing notes stated:

“The Government will bring forward proposals for a Bill of Rights to replace the Human Rights Act.

This would reform and modernise our human rights legal framework and restore common sense to the application of human rights laws. It would also protect existing rights, which are an essential part of a modern, democratic society, and better protect against abuse of the system and misuse of human rights laws.”[2]

The new Secretary of State in the first debate following the Queen’s speech refused to rule out withdrawal from the ECHR.[3]

A law which rendered ECtHR judgments ‘advisory’ would breach Article 46 ECHR, which requires signatory states – as a matter of international law – to abide by the ECtHR judgments against them. It is very unlikely that the Council of Europe could agree to changes in the ECHR to allow this. If the UK withdraws from the Council of Europe, it would be the only country in Europe not to be a member other than Belarus, and the only country ever to withdraw from a human rights instrument apart from Venezuela, and North Korea.

Council of Europe

The European Convention of Human Rights is an international treaty drafted by the Council of Europe and signed and ratified by its members imposing a number of duties on member states – primarily compliance with the rights set out and accepting the jurisdiction of the European Court of Human Rights. The ECHR has been subject to a number of procedural amendments and a number of substantive rights have been added to the original list – both change processes initiated by “protocols”. The latest changes in 15th and 16th Protocols were agreed following the “Brighton Declaration” and at the time the UK held the Chair of the Council of Europe.[4] The UK has always ratified the procedural protocols and has already ratified protocol 15, which attempts to reduce the number of cases arriving with the ECtHR and increases the likelihood that the ECtHR will not rule against a state. In relation to the ratification of additional rights the UK has previously agreed protocols 1, 6 and 13 but not 4, 7 and 12.[5]

Regardless of their likely success, negotiations by the UK to amend the ECHR with other Council of Europe member states to relegate judgments from the ECtHR to the status of advisory opinions and to allow some kind of “democratic override” could begin immediately. These “negotiations” are likely to take some time although the proposals might be rejected pretty quickly by the Council leading to a decision by the new Conservative government to withdraw from the ECHR.[6] There are, apparently, some people in the Conservative Party who would wish to withdraw from the ECHR immediately, some that would prefer to construct a scenario where the UK might be forced to leave because the Council of Europe will not negotiate and some who want the negotiations to be genuine and ultimately want the UK to stay within the system. The key objectives which appears to link all the groups (and some members of other parties) are:

  • the wish to see a “democratic override” which allows those democratically elected (the UK Parliament) to have the final say over what the law should be and on the balance between the rights of the individual and the wider interests of society;
  • that the UK Supreme Court should have the final say over what human rights mean in practice, not the ECtHR; and
  • a wish to see more of the details of how the courts should address privacy, family life and fair trial issues set out in legislation (rather than as a result of the “whims” of the ECHR) (the majority of those involved would still wish to retain the prohibition of torture and retain compliance with articles 2 and 3 – the more “serious” rights).

Withdrawal from the ECHR is relatively easy procedurally because it is in the hands of the government although this would probably require the consent of Parliament.[7] Those wishing to “trigger” expulsion rather than to initiate it immediately might wish to wait to be able to argue that the new UK government had tried to negotiate a better deal and one that respects Parliament’s place in the UK’s constitutional system but that “Europe” refused to budge.   The rejection of the proposal will not obviously lead to the UK’s expulsion from the ECHR itself or from the Council of Europe more generally. What is a more likely scenario is that a final judgment in a pending case by the ECtHR will require legislative change. Parliament, given the new majority and October proposals, might be more likely than in the past to choose to reject the proposed changes in UK domestic law required by the judgment and as a result the Committee of Ministers, who are charged with ensuring that judgments of the Court are implemented[8], will first put pressure on the UK to comply and eventually will need to consider sanctions.

The ministers and civil servants in this scenario would not then have much room for negotiation with other member states on the Committee of Ministers about the implementation of the judgment. All those involved in the negotiations over the implementation of the judgment will be aware of exactly how Parliament has voted and how it wants (not) to deal with the judgment. In practice, the blanket ban on votes for prisoners is still pending could easily be the trigger case for a challenge.[9]

The Committee of Ministers of the Council of Europe has the power (which it has not yet ever used) to refer a refusal by a state to implement a judgment back to the European Court of Human Rights Itself. The Committee of Ministers needs a two-thirds majority to take this action and the representatives from the member states will be very reluctant to take this step.[10] The Court, if it finds that the member state has not, in fact, complied with the judgment following such a referral, then sends the matter back to the Committee of Ministers for them to take action. An intentional and blatant failure to implement a judgment from the Court will be a clear and obvious breach of the ECHR requiring some kind of action – the obvious sanction in the face of a clear and intentional refusal will be expulsion from the ECHR.

However all of this will take a long time and will not be something that the Council of Europe will wish to do. Obviously there are always several pending cases against the UK (including votes for prisoners) and, it is likely that the new proposed Bill of Rights will contain the requirement that the consent of Parliament is obtained before any judgment requiring legislative change are implemented, it could apply immediately the Bill comes into force as an Act. This will trigger a conflict with the Committee of Ministers pretty quickly.

In practice, any change in the law as a result of a judgment by the ECtHR requires the consent of Parliament anyway because it is only Parliament that can change the law. So, in one sense, this particular new proposal from the Conservative Party changes nothing. However creating a new process focused on the implementation of a judgment seems likely to engage the interest of Parliamentarians in a way it has not done so thus far. In the past changes to UK law resulting from judgments of the ECtHR have usually been seen as relatively uncontroversial and the proposed provisions have been added to another, unrelated, government bill and often passed without any serious debate.[11]

The current procedure contained in the Human Rights Act does, however, allow the government to amend legislation more quickly following a judgment from the ECtHR or a declaration of incompatibility from a UK court. This procedure allows the government to use secondary legislation to amend the offending primary legislation.[12] The instrument needed to change in the law does not then need to be in the form of an ordinary bill and to go through all the three stages and in both Houses of Parliament. The “Remedial Order” still needs to be approved by both Houses but usually there is no possibility of amendment and the debate is short.[13] However following the judgments in the ECtHR on the right of prisoners to vote in elections some Parliamentarians arranged for a debate and vote on the judgment and the possible proposals to amend UK law. This debate would not have led to changes in the law itself but the strength of the opposition to the idea of given prisoners the vote had a significant political affect.[14] It is likely that those in the Conservative Party who drafted the October proposals have had this example in mind when considering the mechanisms to ensure consideration by Parliament of judgments from the ECtHR.

Senior civil servants will have started to consider the Conservative Party’s proposals six months ago and will, by now, have drafted detailed papers setting out various scenarios with pros and cons for the new Secretary of State, Michael Gove. Those same civil servants will have also considered how, exactly, the proposals might work in practice and probably already suggested tweaks, amendments and alternative options to those contained in the October proposals to ensure easier implementation. In this context the new government will have been advised that the idea of relegating the judgments of the ECtHR to the status of advisory opinions is unlikely to obtain support from member states but other, less aggressive, options might be more likely to find favour.

One such option would be for some enhanced and sophisticated Parliamentary procedure for dealing with judgments from the ECtHR. The Council of Europe would not object (and might welcome) a process where all judgments have to be considered by the UK Parliament (or a committee of Parliament such as the Joint Human Rights Committee). Nor would there be any opposition to judgments requiring a change in the law being dealt with by Parliament in the usual way (by a bill or part of a bill going through the three stages in each House).

At present the ECtHR system is subject to a fundamental and long-term review and in November 2013 the Council of Europe initiated a further consultation exercise:

“…holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights. This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court.”[15]

This gives a new UK government an opportunity to make proposals to change the current system. Certainly some of the discussions about the future of the ECHR in the context of this review have focused on “subsidiarity” and the need for greater democratic input into the current system and it is therefore an opportune time for the UK to suggest changes. However, other states will be wary of dogmatic and Euro-sceptic proposals which are not based on a wish for genuine dialogue.[16]

Insiders in the Council of Europe do not want to see the UK withdraw from the ECHR or to see it forced to leave the system. Their position is based on a number of factors including the fact that the UK is generally:

  • a model of compliance with the ECHR;
  • supports the aims and objectives of the ECHR and the Council of Europe;
  • UK civil servants put in more than their share of the effort to make the systems work and pays its contributions and;
  • if the UK left the ECHR, it would make a large dent in the comprehensive coverage by the ECHR across Europe and send a particularly powerful negative message to states with very poor records of compliance.

It is said that other states like Switzerland might also rapidly follow suit and quit the ECHR and might soon be followed by others like Russia.

No one connected with the Council of Europe appears to be willing to contemplate the idea that the UK would be sanctioned or that there could ever be a two-thirds majority (needed to refer a case that has not be properly implemented back to the ECtHR).

The Council of Europe and the European Court of Human Rights in 2015

There are a number of other factors that might be relevant in the next few months:

  • The Committee of Ministers agreed to put off any further action on the very controversial prisoners’ voting case until September 2015;
  • The UK judge to the ECtHR is coming to the end of his term and the selection process must begin now; and
  • Many of the other judges on the ECtHR are up for renewal and by 2016 half of the ECtHR will be composed of new judges – creating some uncertainty about the direction of the Court.

The Parliamentary Assembly of the Council of Europe (PACE) is a much-neglected body but it is made up of members from the Council of Europe’s constituent parliaments. The delegates from the UK made up of MPs and peers from the majority parties in the UK Parliament are likely to be important as they are already relatively knowledgeable about Council of Europe processes, including the ECtHR, elect the judges for the court and might well provide a conduit for informal communication and negotiations.

Council of Europe and the ECHR’s rules and procedures

 

The UK is both a member of the Council of Europe itself and has ratified many of its specific conventions including, of course, the ECHR, which requires compliance with the judgments of the Court.

Article 58 of the ECHR itself allows a state party to denounce the Convention and withdraw from the jurisdiction of the Court on giving six months’ notice. For on-going or existing cases a denunciation does not prevent the Court giving judgment or compensation being ordered. Withdrawal from the ECHR does not, however, automatically require withdrawal for the Council of Europe.

However, the Statute of the Council of Europe states:

Article 3

Every member of the Council of Europe 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 as specified in Chapter I.

Article 7

Any member of the Coun­cil of Europe may withdraw by formally notifying the Secre­tary General of its intention to do so. Such with­drawal shall take effect at the end of the financial year in which it is noti­fied, if the notification is given during the first nine months of that financial year. If the notification is given in the last three months of the finan­cial year, it shall take effect at the end of the next finan­cial year.

Article 8

Any member of the Coun­cil of Europe which has seriously vio­lated Article 3 may be suspended from its rights of repre­sentation and re­quested by the Committee of Ministers to withdraw under Arti­cle 7. If such member does not comply with this request, the Commit­tee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

No state has ever been expelled from the ECHR but Greece, during the time of the military junta, chose to withdraw (it is likely to have been expelled anyway). Withdrawing from the ECHR itself does not necessarily mean that the UK would not be upholding the values set out in Article 3 of the above statute but the expectation of all new Council of Europe member states since the readmission of Greece and the admission of Portugal and Spain some years ago has been that they would ratify the ECHR and sign up to the right of individual petition and the jurisdiction of the ECtHR (since 1998 the last two requirements are no longer optional). It might be now that accepting the jurisdiction of the ECtHR is now seen to be implicit in Article 3 of the Statute but probably this is a political not legal question. However it might well be that the fact of an expulsion on a member state would deter other states from pursuing the same path.

Greece, following the installation of the Colonels’ military dictatorship in 1967, withdrew from the Council of Europe in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime. Turkey was suspended, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place. Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

The European Union

A failure to protect the rights under the ECHR might also be a violation of the law of the EU and, potentially, lead to sanctions from the EU Court or Commission.

Membership of the EU was originally never specifically conditional on compliance with the ECHR or ratification of that treaty. However all of the other EU member states are parties to the ECHR and new members of the EU have all been parties to the ECHR long before they were allowed in to the EU. Membership of the ECHR and compliance with ECtHR judgments are indicators of respect for human rights and the rule of law – key pre-accession issues. The Copenhagen Criteria state:

“To join the EU, a new Member State must meet three criteria:

  • political: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
  • economic: existence of a functioning market economy and the capacity to cope with competitive pressure and market forces within the Union;
  • acceptance of the Community acquis: ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union.”

The question of continued membership of the EU following withdrawal from the ECHR is a political question not a legal question. The likelihood any scenario is complex and will depend on bigger political factors. Experts from the House of Commons have suggested:

“Regarding EU membership, initially candidate states had to have a “firm intention” or a “declared willingness” to ratify the Convention. Under the Copenhagen Criteria for EU enlargement agreed in 1993, adherence to human rights principles is a condition of membership for aspiring members. However, it is not possible to say conclusively that continued membership of the EU requires the UK to remain a member of the Council of Europe or a signatory to the Convention.”[17]

 

In fact, exclusion from the EU would be unlikely unless human rights in the UK were being violated regularly and the UK had a human rights record significantly worse that the other members states. The test for expulsion is respect for rights in practice rather than the acceptance of a particular treaty although withdrawal might be seen as a significant sign of likely violations in the future.

[1] Protecting Rights in the UK: The Conservative Proposals for Changing Britain’s Human Rights Laws.

[2]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/430149/QS_lobby_pack_FINAL_NEW_2.pdf

[3] http://www.mirror.co.uk/news/uk-news/michael-gove-fails-rule-out-5780915

[4] http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf

[5] See http://www.echr.coe.int/Documents/Convention_ENG.pdf, see Appendix 2 of the Blackstone’s Guide to the Human Rights Act, 7th edn. 2015, OUP for a copy of the ECHR text with the amendments made by protocols 15 and 16 included.

[6] Though there might be some support amongst other member states, for instance, the Parliament, Duma, of the Russian Federation in 2011 supported the idea that judgments from the ECtHR should be merely advisory.

[7] The Constitutional Reform and Governance Act 2010, part II, requires the government to lay new treaties before Parliament in advance of ratification giving Parliament the opportunity to object.

[8] ECHR, article 46, see http://www.coe.int/t/dghl/monitoring/execution/default_en.asp

[9] The Committee of Ministers is to review the UK’s position on prisoners’ voting at its meeting in September 2015. The issue of the lawfulness of the imposition of life sentences where the defendant is given a “whole life tariff” has been partially resolved by the ECtHR changing its position but there will be more cases to test the details of this in the ECtHR in the near

[10] ECHR Article 46(4).

[11] See the work and reports of Parliament’s Joint Human Rights Committee, http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13002.htm

[12] Section 10.

[13] See the Human Rights Act, Schedule2. Up 31 July 2013, of the 19 final declarations of incompatibility, three were resolved by the remedial order process.

[14] The vote was 234 to 22 in favour of retaining the current ban, col 493, 10 February 2011.

[15] Council of Europe, November 2013.

[16] Original UK drafts of the Brighton Declaration were considerably “watered down” by the majority of other member states.

[17] Parliamentary Sovereignty and the European Convention on Human Rights, House of Commons Library, 6th November 2014, Alexander Horne and Vaughne Miller.

The European Convention of Human Rights (with the amendments to be made by Protocols 15 and 16 set out)

Convention for the Protection of Human Rights and Fundamental Freedoms including the additional substantive Protocols Nos. 1, 4, 6, 7, 12 and 13 and as amended by Protocols Nos. 11, 14, 15 and 16

The Convention and Protocols below contains both the substantive fundamental rights created by the Convention as well as the provisions dealing with the creation, procedures and workings of the Court.  The rights set out in Protocols 4, 7 and 12 have not, however, been ratified by the United Kingdom Government and are not included in the Human Rights Act and therefore cannot form the basis for either applications to the European Court of Human Rights or for breaches of section 6 of the Act.

 

The amendments to the Convention made by Protocols 15 and 16 are not yet, at the time of writing, in force.  The amendments that will be made by Protocol 15 to the Convention are highlighted in the text below in italics and within brackets [ ].  It is likely that Protocol 15 will be in force some time in 2015 but because it requires the consent of all member states before it applies the timing is difficult to predict.[1]  Protocol 16 (obtaining advisory opinions from the Court) will be found at the end.  The provision will both need to be ratified by at least 10 member states to come into force and, then specifically, by the United Kingdom government to be available to the UK courts.

 

 CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Rome, 4.XI.1950

The governments signatory hereto, being members of the Council of Europe,

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;

Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;

Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;

Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend;

Being resolved, as the governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration,

[Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention][2]

 Have agreed as follows:

Article 1

Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

SECTION I. RIGHTS AND FREEDOMS

Article 2

Right to life

1.         Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.         Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a)        in defence of any person from unlawful violence;

(b)       in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)        in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3

Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4

Prohibition of slavery and forced labour

1.         No one shall be held in slavery or servitude.

2.         No one shall be required to perform forced or compulsory labour.

3.         For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a)        any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b)       any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c)        any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d)       any work or service which forms part of normal civic obligations.

Article 5

Right to liberty and security

1.         Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)        the lawful detention of a person after conviction by a competent court;

(b)       the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)        the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)       the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)        the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of un-sound mind, alcoholics or drug addicts or vagrants;

(f)        the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2.         Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.         Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.         Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.         Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Article 6

Right to a fair trial

1.         In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2.         Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.         Everyone charged with a criminal offence has the following minimum rights:

(a)        to be informed promptly, in a language which he understands and detail, of the nature and cause of the accusation against him;

(b)       to have adequate time and facilities for the preparation of his defence;

(c)        to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)       to examine or have examined witnesses against him and to obtain the attendance and examination of wit-nesses on his behalf under the same conditions as witnesses against him;

(e)        to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 7

No punishment without law

1.         No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.         This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 8

Right to respect for private and family life

1.         Everyone has the right to respect for his private and family life, his home and his correspondence.

2.         There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9

Freedom of thought, conscience and religion

1.         Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.         Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

 Article 10

Freedom of expression

1.         Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.         The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11

Freedom of assembly and association

1.         Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.         No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 12

Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 13

Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Article 14

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 15

Derogation in time of emergency

1.         In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2.         No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 § 1 and 7 shall be made under this provision.

3.         Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

Article 16

Restrictions on political activity of aliens

Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

Article 17

Prohibition of abuse of rights

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Article 18

Limitation on use of restrictions on rights

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

SECTION II. EUROPEAN COURT OF HUMAN RIGHTS

Article 19

Establishment of the Court

To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as “the Court”. It shall function on a permanent basis.

Article 20

Number of judges

The Court shall consist of a number of judges equal to that of the High Contracting Parties.

Article 21

Criteria for office

1.     1.         The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.

[     [2.  Candidates shall be less than 65 years of age at the date by which the list of three candidates has been requested by the Parliamentary Assembly, further to Article 22][3]

 

2.         The judges shall sit on the Court in their individual capacity.

3.         During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office; all questions arising from the application of this paragraph shall be decided by the Court.

Article 22

Election of judges

The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.

Article 23

Terms of office and dismissal

1.         The judges shall be elected for a period of nine years. They may not be re-elected.

2.         [The terms of office of judges shall expire when they reach the age of 70.][4]

3.  The judges shall hold office until replaced. They shall, however, continue to deal with such cases as they already have under consideration.

4.         No judge may be dismissed from office unless the other judges decide by a majority of two-thirds that that judge has ceased to fulfil the required conditions.

Article 24

Registry and rapporteurs

1.         The Court shall have a Registry, the functions and organisation of which shall be laid down in the rules of the Court.

2.         When sitting in a single-judge formation, the Court shall be assisted by rapporteurs who shall function under the authority of the President of the Court. They shall form part of the Court’s Registry.

Article 25

Plenary Court

The plenary Court shall

(a)        elect its President and one or two Vice-Presidents for a period of three years; they may be re-elected;

(b)       set up Chambers, constituted for a fixed period of time;

(c)        elect the Presidents of the Chambers of the Court; they may be re-elected;

(d)       adopt the rules of the Court;

(e)        elect the Registrar and one or more Deputy Registrars;

(f)        make any request under Article 26 § 2.

Article 26

Single-judge formation, Committees, Chambers and Grand Chamber

1.         To consider cases brought before it, the Court shall sit in a single-judge formation, in Committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges. The Court’s Chambers shall set up Committees for a fixed period of time.

2.         At the request of the plenary Court, the Committee of Ministers may, by a unanimous decision and for a fixed period, reduce to five the number of judges of the Chambers.

3.         When sitting as a single judge, a judge shall not examine any application against the High Contracting Party in respect of which that judge has been elected.

4.         There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge.

5.         The Grand Chamber shall also include the President of the Court, the Vice-Presidents, the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court. When a case is referred to the Grand Chamber under Article 43, no judge from the Chamber which rendered the judgment shall sit in the Grand Chamber, with the exception of the President of the Chamber and the judge who sat in respect of the High Contracting Party concerned.

Article 27

Competence of single judges

1.         A single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination.

2.         The decision shall be final.

3.         If the single judge does not declare an application inadmissible or strike it out, that judge shall forward it to a Committee or to a Chamber for further examination.

Article 28

Competence of Committees

1.         In respect of an application sub-mitted under Article 34, a Committee may, by a unanimous vote,

(a)        declare it inadmissible or strike it out of its list of cases, where such decision can be taken without further examination; or

(b)       declare it admissible and render at the same time a judgment on the merits, if the underlying question in the case, concerning the interpretation or the application of the Convention or the Protocols thereto, is already the subject of well-established case-law of the Court.

2.         Decisions and judgments under paragraph 1 shall be final.

3.         If the judge elected in respect of the High Contracting Party concerned is not a member of the Committee, the Committee may at any stage of the proceedings invite that judge to take the place of one of the members of the Committee, having regard to all relevant factors, including whether that Party has contested the application of the procedure under paragraph 1 (b).

Article 29

Decisions by Chambers on admissibility and merits

1.         If no decision is taken under Article 27 or 28, or no judgment rendered under Article 28, a Chamber shall decide on the admissibility and merits of individual applications submitted under Article 34. The decision on admissibility may be taken separately.

2.         A Chamber shall decide on the admissibility and merits of inter-State applications submitted under Article 33. The decision on admissibility shall be taken separately unless the Court, in exceptional cases, decides otherwise.

Article 30

Relinquishment of jurisdiction to the Grand Chamber

Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber[, unless one of the parties to the case objects].[5]

Article 31

Powers of the Grand Chamber

The Grand Chamber shall

(a)        determine applications submitted either under Article 33 or Article 34 when a Chamber has relinquished jurisdiction under Article 30 or when the case has been referred to it under Article 43;

(b)       decide on issues referred to the Court by the Committee of Ministers in accordance with Article 46 § 4; and

(c)        consider requests for advisory opinions submitted under Article 47.

Article 32

Jurisdiction of the Court

1.         The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.

2.         In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.

Article 33

Inter-State cases

Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.

Article 34

Individual applications

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

Article 35

Admissibility criteria

1.         The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of inter-national law, and within a period of six [four][6] months from the date on which the final decision was taken.

2.         The Court shall not deal with any application submitted under Article 34 that

(a)        is anonymous; or

(b)       is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.

3.         The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a)        the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or

(b)       the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits [and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal].[7]

4.         The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

Article 36

Third party intervention

1.         In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings.

2.         The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.

3.         In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings.

Article 37

Striking out applications

1.         The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)        the applicant does not intend to pursue his application; or

(b)       the matter has been resolved; or

(c)        for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2.         The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.

Article 38

Examination of the case

The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.

Article 39

Friendly settlements

1.         At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.

2.         Proceedings conducted under paragraph 1 shall be confidential.

3.         If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached.

4.         This decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision.

Article 40

Public hearings and access to documents

1.         Hearings shall be in public unless the Court in exceptional circumstances decides otherwise.

2.         Documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise.

Article 41

Just satisfaction

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

Article 42

Judgments of Chambers

Judgments of Chambers shall become final in accordance with the provisions of Article 44 § 2.

Article 43

Referral to the Grand Chamber

1.         Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

2.         A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.

3.         If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

Article 44

Final judgments

1.         The judgment of the Grand Chamber shall be final.

2.         The judgment of a Chamber shall become final

(a)        when the parties declare that they will not request that the case be referred to the Grand Chamber; or

(b)       three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or

(c)        when the panel of the Grand Chamber rejects the request to refer under Article 43.

3.         The final judgment shall be published.

Article 45

Reasons for judgments and decisions

1.         Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.

2.         If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

Article 46

Binding force and execution of judgments

1.         The High Contracting Parties under-take to abide by the final judgment of the Court in any case to which they are parties.

2.         The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

3.         If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Committee.

4.         If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two-thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

5.         If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.

Article 47

Advisory opinions

1.         The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols thereto.

2.         Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the Protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention.

3.         Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the Committee.

Article 48

Advisory jurisdiction of the Court

The Court shall decide whether a request for an advisory opinion submitted by the Committee of Ministers is within its competence as defined in Article 47.

Article 49

Reasons for advisory opinions

1.         Reasons shall be given for advisory opinions of the Court.

2.         If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

3.         Advisory opinions of the Court shall be communicated to the Committee of Ministers.

Article 50

Expenditure on the Court

The expenditure on the Court shall be borne by the Council of Europe.

Article 51

Privileges and immunities of judges

The judges shall be entitled, during the exercise of their functions, to the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder.

SECTION III. MISCELLANEOUS PROVISIONS

Article 52

Inquiries by the Secretary General

On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention.

Article 53

Safeguard for existing human rights

Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.

Article 54

Powers of the Committee of Ministers

Nothing in this Convention shall prejudice the powers conferred on the Committee of Ministers by the Statute of the Council of Europe.

Article 55

Exclusion of other means of dispute settlement

The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.

Article 56

Territorial application

1.         Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.

2.         The Convention shall extend to the territory or territories named in the notification as from the thirtieth day after the receipt of this notification by the Secretary General of the Council of Europe.

3.         The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.

4.         Any State which has made a declaration in accordance with paragraph 1 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided by Article 34 of the Convention.

Article 57

Reservations

1.         Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article.

2.         Any reservation made under this Article shall contain a brief statement of the law concerned.

Article 58

Denunciation

1.         A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.

2.         Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.

3.         Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a party to this Convention under the same conditions.

4.         The Convention may be denounced in accordance with the provisions of the preceding paragraphs in respect of any territory to which it has been declared to extend under the terms of Article 56.

Article 59

Signature and ratification

1.         This Convention shall be open to the signature of the members of the Council of Europe. It shall be ratified. Ratifications shall be deposited with the Secretary General of the Council of Europe.

2.         The European Union may accede to this Convention.

3.         The present Convention shall come into force after the deposit of ten instruments of ratification.

4.         As regards any signatory ratifying subsequently, the Convention shall come into force at the date of the deposit of its instrument of ratification.

5.         The Secretary General of the Council of Europe shall notify all the members of the Council of Europe of the entry into force of the Convention, the names of the High Contracting Parties who have ratified it, and the deposit of all instruments of ratification which may be effected subsequently.

Done at Rome this 4th day of November 1950, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatories.

PROTOCOL TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Paris, 20.III.1952

The governments signatory hereto, being members of the Council of Europe,

Being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”),

Have agreed as follows:

Article 1

Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Article 2

Right to education

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

Article 3

Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

Article 4

Territorial application

Any High Contracting Party may at the time of signature or ratification or at any time thereafter communicate to the Secretary General of the Council of Europe a declaration stating the extent to which it undertakes that the provisions of the present Protocol shall apply to such of the territories for the international relations of which it is responsible as are named therein.

Any High Contracting Party which has communicated a declaration in virtue of the preceding paragraph may from time to time communicate a further declaration modifying the terms of any former declaration or terminating the application of the provisions of this Protocol in respect of any territory.

A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 56 of the Convention.

Article 5

Relationship to the Convention

As between the High Contracting Parties the provisions of Articles 1, 2, 3 and 4 of this Protocol shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly.

Article 6

Signature and ratification

This Protocol shall be open for signature by the members of the Council of Europe, who are the signatories of the Convention; it shall be ratified at the same time as or after the ratification of the Convention. It shall enter into force after the deposit of ten instruments of ratification. As regards any signatory ratifying subsequently, the Protocol shall enter into force at the date of the deposit of its instrument of ratification.

The instruments of ratification shall be deposited with the Secretary General of the Council of Europe, who will notify all members of the names of those who have ratified.

Done at Paris on the 20th day of March 1952, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatory governments.

PROTOCOL NO. 4 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS SECURING CERTAIN RIGHTS AND FREEDOMS OTHER THAN THOSE ALREADY INCLUDED IN THE CONVENTION AND IN THE FIRST PROTOCOL THERETO

Strasbourg, 16.IX.1963

The governments signatory hereto, being members of the Council of Europe,

Being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as the “Convention”) and in Articles 1 to 3 of the First Protocol to the Convention, signed at Paris on 20 March 1952,

Have agreed as follows:

Article 1

Prohibition of imprisonment for debt

No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.

Article 2

Freedom of movement

1.         Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2.         Everyone shall be free to leave any country, including his own.

3.         No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.         The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

Article 3

Prohibition of expulsion of nationals

1.         No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.

2.         No one shall be deprived of the right to enter the territory of the State of which he is a national.

Article 4

Prohibition of collective expulsion of aliens

Collective expulsion of aliens is prohibited.

Article 5

Territorial application

1.         Any High Contracting Party may, at the time of signature or ratification of this Protocol, or at any time thereafter, communicate to the Secretary General of the Council of Europe a declaration stating the extent to which it undertakes that the provisions of this Protocol shall apply to such of the territories for the international relations of which it is responsible as are named therein.

2.         Any High Contracting Party which has communicated a declaration in virtue of the preceding paragraph may, from time to time, communicate a further declaration modifying the terms of any former declaration or terminating the application of the provisions of this Protocol in respect of any territory.

3.         A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 56 of the Convention.

4.         The territory of any State to which this Protocol applies by virtue of ratification or acceptance by that State, and each territory to which this Protocol is applied by virtue of a declaration by that State under this Article, shall be treated as separate territories for the purpose of the references in Articles 2 and 3 to the territory of a State.

5.         Any State which has made a declaration in accordance with para-graph 1 or 2 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided in Article 34 of the Convention in respect of all or any of Articles 1 to 4 of this Protocol.

Article 6

Relationship to the Convention

As between the High Contracting Parties the provisions of Articles 1 to 5 of this Protocol shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly.

Article 7

Signature and ratification

1.         This Protocol shall be open for signature by the members of the Council of Europe who are the signatories of the Convention; it shall be ratified at the same time as or after the ratification of the Convention. It shall enter into force after the deposit of five instruments of ratification. As regards any signatory ratifying subsequently, the Protocol shall enter into force at the date of the deposit of its instrument of ratification.

2.         The instruments of ratification shall be deposited with the Secretary General of the Council of Europe, who will notify all members of the names of those who have ratified.

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at Strasbourg, this 16th day of September 1963, in English and in French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatory States.

PROTOCOL NO. 6 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS CONCERNING THE ABOLITION OF THE DEATH PENALTY

Strasbourg, 28.IV.1983

The member States of the Council of Europe, signatory to this Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”),

Considering that the evolution that has occurred in several member States of the Council of Europe expresses a general tendency in favour of abolition of the death penalty;

Have agreed as follows:

Article 1

Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Article 2

Death penalty in time of war

A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

Article 3

Prohibition of derogations

No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

Article 4

Prohibition of reservations

No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

Article 5

Territorial application

1.         Any State may at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply.

2.         Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the date of receipt of such declaration by the Secretary General.

3.         Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the date of receipt of such notification by the Secretary General.

Article 6

Relationship to the Convention

As between the States Parties the provisions of Articles 1 and 5 of this Protocol shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly.

Article 7

Signature and ratification

The Protocol shall be open for signature by the member States of the Council of Europe, signatories to the Convention. It shall be subject to ratification, accept-ance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol unless it has, simultaneously or previously, ratified the Convention. Instruments of ratification, acceptance or approval shall be de-posited with the Secretary General of the Council of Europe.

Article 8

Entry into force

1.         This Protocol shall enter into force on the first day of the month following the date on which five member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the pro-visions of Article 7.

2.         In respect of any member State which subsequently expresses its con-sent to be bound by it, the Protocol shall enter into force on the first day of the month following the date of the deposit of the instrument of ratification, acceptance or approval.

Article 9

Depositary functions

The Secretary General of the Council of Europe shall notify the member States of the Council of:

(a)        any signature;

(b)       the deposit of any instrument of ratification, acceptance or approval;

(c)        any date of entry into force of this Protocol in accordance with Articles 5 and 8;

(d)       any other act, notification or communication relating to this Protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at Strasbourg, this 28th day of April 1983, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.

PROTOCOL NO. 7 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Strasbourg, 22.XI.1984

The member States of the Council of Europe signatory hereto,

Being resolved to take further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 Nov-ember 1950 (hereinafter referred to as “the Convention”),

Have agreed as follows:

Article 1

Procedural safeguards relating to expulsion of aliens

1.         An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a)        to submit reasons against his expulsion,

(b)       to have his case reviewed, and

(c)        to be represented for these purposes before the competent authority or a person or persons designated by that authority.

2.         An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.

Article 2

Right of appeal in criminal matters

1.         Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2.         This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.

Article 3

Compensation for wrongful conviction

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

Article 4

Right not to be tried or punished twice

1.         No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2.         The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3.         No derogation from this Article shall be made under Article 15 of the Convention.

Article 5

Equality between spouses

Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.

Article 6

Territorial application

1.         Any State may at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which the Protocol shall apply and state the extent to which it undertakes that the provisions of this Protocol shall apply to such territory or territories.

2.         Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date of receipt by the Secretary General of such declaration.

3.         Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn or modified by a notification addressed to the Secretary General. The withdrawal or modification shall become effective on the first day of the month following the expiration of a period of two months after the date of receipt of such notification by the Secretary General.

4.         A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 56 of the Convention.

5.         The territory of any State to which this Protocol applies by virtue of ratification, acceptance or approval by that State, and each territory to which this Protocol is applied by virtue of a declaration by that State under this Article, may be treated as separate territories for the purpose of the reference in Article 1 to the territory of a State.

6.         Any State which has made a declaration in accordance with paragraph 1 or 2 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided in Article 34 of the Convention in respect of Articles 1 to 5 of this Protocol.

Article 7

Relationship to the Convention

As between the States Parties, the provisions of Article 1 to 6 of this Protocol shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly.

Article 8

Signature and ratification

This Protocol shall be open for signature by member States of the Council of Europe which have signed the Convention. It is subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol without previously or simultaneously ratifying the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 9

Entry into force

1.         This Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date on which seven member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 8.

2.         In respect of any member State which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date of the deposit of the instrument of ratification, acceptance or approval.

Article 10

Depositary functions

The Secretary General of the Council of Europe shall notify all the member States of the Council of Europe of:

(a)        any signature;

(b)       the deposit of any instrument of ratification, acceptance or approval;

(c)        any date of entry into force of this Protocol in accordance with Articles 6 and 9;

(d)       any other act, notification or declaration relating to this Protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at Strasbourg, this 22nd day of November 1984, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.

PROTOCOL NO. 12 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Rome, 4.XI.2000

The member States of the Council of Europe signatory hereto,

Having regard to the fundamental principle according to which all persons are equal before the law and are entitled to the equal protection of the law;

Being resolved to take further steps to promote the equality of all persons through the collective enforcement of a general prohibition of discrimination by means of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”);

Reaffirming that the principle of non-discrimination does not prevent States Parties from taking measures in order to promote full and effective equality, provided that there is an objective and reasonable justification for those measures,

Have agreed as follows:

Article 1

General prohibition of discrimination

1.         The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2.         No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

Article 2

Territorial application

1.         Any State may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply.

2.         Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt by the Secretary General of such declaration.

3.         Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn or modified by a notification addressed to the Secretary General of the Council of Europe. The withdrawal or modification shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.

4.         A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 56 of the Convention.

5.         Any State which has made a declaration in accordance with para-graph 1 or 2 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided by Article 34 of the Convention in respect of Article 1 of this Protocol.

Article 3

Relationship to the Convention

As between the States Parties, the provisions of Articles 1 and 2 of this Protocol shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly.

Article 4

Signature and ratification

This Protocol shall be open for signature by member States of the Council of Europe which have signed the Convention. It is subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol without previously or simultaneously ratifying the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 5

Entry into force

1.         This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which ten member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 4.

2.         In respect of any member State which subsequently expresses its con-sent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.

Article 6

Depositary functions

The Secretary General of the Council of Europe shall notify all the member States of the Council of Europe of:

(a)        any signature;

(b)       the deposit of any instrument of ratification, acceptance or approval;

(c)        any date of entry into force of this Protocol in accordance with Articles 2 and 5;

(d)       any other act, notification or communication relating to this Protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at Rome, this 4th day of November 2000, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.

PROTOCOL NO. 13 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS CONCERNING THE ABOLITION OF THE DEATH PENALTY IN ALL CIRCUMSTANCES

Vilnius, 3.V.2002

The member States of the Council of Europe signatory hereto,

Convinced that everyone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings;

Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”);

Noting that Protocol No. 6 to the Convention concerning the abolition of the death penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war;

Being resolved to take the final step in order to abolish the death penalty in all circumstances,

Have agreed as follows:

Article 1

Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Article 2

Prohibitions of derogations

No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

Article 3

Prohibitions of reservations

No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

Article 4

Territorial application

1.         Any State may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply.

2.         Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt by the Secretary General of such declaration.

3.         Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn or modified by a notification addressed to the Secretary General. The withdrawal or modification shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.

Article 5

Relationship to the Convention

As between the States Parties the provisions of Articles 1 to 4 of this Protocol shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly.

Article 6

Signature and ratification

This Protocol shall be open for signature by member States of the Council of Europe which have signed the Convention. It is subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol without previously or simultaneously ratifying the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 7

Entry into force

1.         This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which ten member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 6.

2.         In respect of any member State which subsequently expresses its con-sent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.

Article 8

Depositary functions

The Secretary General of the Council of Europe shall notify all the member States of the Council of Europe of:

(a)        any signature;

(b)       the deposit of any instrument of ratification, acceptance or approval;

(c)        any date of entry into force of this Protocol in accordance with Articles 4 and 7;

(d)       any other act, notification or communication relating to this Protocol;

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at Vilnius, this 3rd day of May 2002, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe

 

Protocol No. 16 to the Convention on the Protection  of Human Rights and Fundamental Freedoms[8]

 

Preamble

 

The member States of the Council of Europe and other High Contracting Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”), signatories hereto,

 

Having regard to the provisions of the Convention and, in particular, Article 19 establishing the European Court of Human Rights (hereinafter referred to as “the Court”);

 

Considering that the extension of the Court’s competence to give advisory opinions will further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity;

 Having regard to Opinion No.285 (2013) adopted by the Parliamentary Assembly of the Council of Europe on 28 June 2013,

 Have agreed as follows:

 Article 1

 1 Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.

 2 The requesting court or tribunal may seek an advisory opinion only in

the context of a case pending before it.

 3 The requesting court or tribunal shall give reasons for its request and shall provide the relevant legal and factual background of the pending case.

 Article 2

 1 A panel of five judges of the Grand Chamber shall decide whether to accept the request for an advisory opinion, having regard to Article 1. The panel shall give reasons for any refusal to accept the request.

 2 If the panel accepts the request, the Grand Chamber shall deliver the advisory opinion.

 3 The panel and the Grand Chamber, as referred to in the preceding paragraphs, shall include ex officio the judge elected in respect of the High Contracting Party to which the requesting court or tribunal pertains. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge.

Article 3

 The Council of Europe Commissioner for Human Rights and the High Contracting Party to which the requesting court or tribunal pertains shall have the right to submit written comments and take part in any hearing. The President of the Court may, in the interest of the proper administration of justice, invite any other High Contracting Party or person also to submit written comments or take part in any hearing.

 Article 4

 1 Reasons shall be given for advisory opinions.

 2  If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

 3  Advisory opinions shall be communicated to the requesting court or

tribunal and to the High Contracting Party to which that court or tribunal pertains.

 4  Advisory opinions shall be published.

 Article 5

 Advisory opinions shall not be binding.

 Article 6

 As between the High Contracting Parties the provisions of Articles 1 to 5 of this Protocol shall be regarded as additional articles to the Convention, and all the provisions of the Convention shall apply accordingly.

Article 7

 1  This Protocol shall be open for signature by the High Contracting Parties to the Convention, which may express their consent to be bound by:

a signature without reservation as to ratification, acceptance or approval; or

b signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.

2 The instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 8

1 This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which ten High Contracting Parties to the Convention have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 7.

2 In respect of any High Contracting Party to the Convention which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Protocol in accordance with the provisions of Article 7.

Article 9

No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

Article 10

Each High Contracting Party to the Convention shall, at the time of signature or when depositing its instrument of ratification, acceptance or approval, by means of a declaration addressed to the Secretary General of the Council of Europe, indicate the courts or tribunals that it designates for the purposes of Article 1, paragraph 1, of this Protocol. This declaration may be modified at any later date and in the same manner.

Article 11

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe and the other High Contracting Parties to the Convention of:

a any signature;

b the deposit of any instrument of ratification, acceptance or approval;

c any date of entry into force of this Protocol in accordance with Article 8;

d any declaration made in accordance with Article 10; and

e any other act, notification or communication relating to this Protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at Strasbourg, this 2nd day of October 2013, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe and to the other High Contracting Parties to the Convention.


[1] On 21st May 2015, 26 states had signed but only 14 (including the UK) had ratified.

[2] Amendment made by Article 1 of Protocol 15, not yet in force.

[3] Amendment made by Article 2 of Protocol 15, not yet in force.  Once the new provision takes effect the next two sub-articles are re-numbered.

[4] Provision removed by amendment by Article 2 of Protocol 15, not yet in force.  Once the provision takes effect the next two sub-articles are re-numbered

[5] Words in italics removed by Article 3 of Protocol 15, not yet in force.

[6] Period of four months substituted by Article 4 of Protocol 15, not yet in force

[7] Words in italics removed by Article 2 of Protocol 15, not yet in force.

[8] Protocol 16 (obtaining advisory opinions from the Court) will need both to be ratified by at least 10 member states of the Council of Europe and, specifically, by the United Kingdom government for this procedure to be available to the UK courts.  The government’s intention is to see how it operates in practice before considering whether or not to ratify it.

Article 5 of the ECHR: A quick Guide

ARTICLE 5 – RIGHT TO LIBERTY AND SECURITY

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

  1. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
  2. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
  3. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
  4. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The meaning and importance of the right to liberty and security

The importance of the right to liberty and security has been recognised for centuries. It finds expression in a number of important antecedents to international human rights treaties, such as the Magna Carta of 1215, and the American and French Constitutions of the 1700s. The essential purpose of Article 5 is to guarantee the protection of the individual’s physical liberty against arbitrary detention. It is not concerned with mere restrictions on a person’s freedom of movement, which is governed by Article 2 of Protocol 4.

The right to liberty and security is guaranteed to everyone, without distinction on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status (Article 14, see also Protocol No. 12).

The Court has stressed the importance of the right to liberty and security in a democratic society. For example, in De Wilde Ooms and Versyp v Belgium (1971), where the applicants had voluntarily given themselves into police custody, the Court held that the right to liberty and security is too important in a democratic society for a person to lose the benefit of its protection on account of having given himself up to be taken into detention.

Article 5 offers protection not only at the point when a person is first detained, but also periodically thereafter until the person is released, or is sentenced to a period of imprisonment by a criminal court.

The notion of “security of person”

The Court has made clear in a number of cases, including in the case of Altun v Turkey (2004), that the notion of security of person in Article 5 is not to be given any independent (i.e. separate) interpretation from the right to liberty. The Court noted that the primary concern of Article 5 is protection from arbitrary deprivation of liberty. The applicant in Altun alleged that he was compelled to abandon his home and village in breach of the right to the exercise of liberty and the enjoyment of security of person. The Court considered that the applicant’s insecure personal circumstances arising from the loss of his home did not fall within the notion of “security of person” under Article 5.

In other cases, the Court has suggested the notion of “security of person” can be equated to the obligation to prevent the arbitrary deprivation of liberty: see, for example, the cases of Bozano v France and Ocalan v Turkey (2005), which are both discussed below.

The right and its permissible restrictions

The first sentence of Article 5 sets out the right to liberty and security, a right guaranteed to everyone; the second sentence permits exceptions only in carefully prescribed circumstances. First, any detention must have followed a “procedure prescribed by law” and second, it must have been authorised on the basis of one of sub-paragraphs (a)–(f) of paragraph 1. The list of grounds of detention under these sub-paragraphs is exhaustive; no other basis of detention is lawful under Article 5. Accordingly, a deprivation of a person’s liberty which does not take place in accordance with a procedure prescribed by law, or on the basis of sub-paragraphs (1)(a)–(f), is arbitrary and unlawful. Authorities holding persons detained in circumstance contrary to Article 5 are under an obligation to release them immediately (as to redress before the European Court, see further Assanidze v Georgia (2004) and Ilascu and others v Moldova and Russia (2004) which are discussed below at 5.4). Persons detained in violation of any aspect of Articles 5(1) to 5(4) are entitled to compensation, by virtue of Article 5(5).

The right to liberty and security can be subject to derogation in times of national emergency in accordance with Article 15 of the Convention, providing certain procedures are followed.

Factors indicating deprivation of liberty

The Court has made a fundamental distinction between a deprivation of liberty, which attracts the protection of Article 5, and a mere restriction on movement which does not, as mentioned above. The difference between deprivation of liberty and mere restriction on a person’s movement is a question of degree or intensity rather than nature or substance (see Guzzardi v Italy (1980)). Account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.

The following points are relevant to this assessment:

  • the degree of coercion used;
  • the area of confinement (the smaller, the more the likelihood of a finding of deprivation of liberty);
  • the degree of security with which confinement is ensured;
  • the frequency and degree of intrusiveness of the means of supervision;
the extent to which contact with the outside world is permitted, and supervised; and
  • the length of time for which such measures are applied.

Exceptions

A person can only be lawfully deprived of their liberty when this is done in accordance with law, is proportionate and carried out in the following circumstances:

  • detention following court conviction;
  • arrest or detention for failing to observe a lawful court order or to fulfil a legal obligation;
  • arrest or detention on remand – i.e. to bring a person before the courts if reasonably suspected of having committed an offence; if reasonably necessary to prevent the commission of an offence; or to prevent a person escaping justice (but not preventative detention).  Detention must be proportionate in the circumstances;
  • detention of children by lawful order for educational supervision or in secure accommodation, care etc;
  • detention which is lawful, necessary and proportionate to prevent, as a matter of last resort, the spread of infectious diseases, lawful detention on mental health grounds or other like grounds;
  • arrest or detention to prevent unauthorised entry into the country or for deportation or extradition.  Detention will cease to be lawful if proceedings for deportation or extradition are not actually in process or not carried out diligently.

 

Procedural safeguards

Article 5 also includes a number of procedural safeguards for anyone who is arrested or detained.

Reasons

Article 5(2) requires that anyone arrested must be promptly informed as to why he or she has been arrested and what the charge against them is.  This must be conveyed to them in a language which he or she understands.  The purpose of this requirement is to enable the person to challenge the lawfulness of their arrest.  This requirement is not only limited to the criminal context but also applies to detention on mental health grounds and immigration detention etc.

Lawfulness tested

Article 5(3) gives everyone arrested or detained on suspicion of having committed an offence the right to be promptly brought before a judge.  This is intended to impose a strict time limit on pre-charge detention.

There is also an entitlement to trial within a reasonable time and release on bail.  The presumption is that bail should be granted and if it is to be denied it must be justified by relevant and sufficient reasons.

Review by court

Article 5(4) provides that everyone deprived of their liberty is entitled to bring court proceedings to challenge the lawfulness of the detention.  Such a challenge must be speedily decided by a court and if the detention is ruled unlawful his or her release must be ordered.  If detention is going to continue this provision requires regular review of the lawfulness of the detention.

Victims of unlawful detention entitled to compensation

Article 5(5) provides that victims of unlawful arrest or detention have an enforceable right to compensation.

Applying to the European Court of Human Rights: A Quick Guide

Applications to the European Court of Human Rights

It is now necessary to make the application on and in the form provided by the Court (available from its website). It is also necessary to ensure that all the questions on the form are answered correctly and all of the documentation required is sent with the form before the expiry of the time limit for applications.

The following information is required by the Court:

(a) the applicant’s name, date of birth, nationality, sex, occupation, and address;

(b) the name, address, and occupation of anyone acting as the representative;

(c) the respondent country;

(d) a clear and concise statement of the facts, including, of course, the exact dates;

(e) a succinct statement of each and every alleged violation of the Convention and the relevant arguments (this should include the relevant domestic law and any relevant Convention case law);

(f) a succinct statement of compliance with the admissibility criteria, including the six months (soon to be four-months) rule and the details of all remedies (including any appeal) which have been pursued within the country concerned and, where appropriate, an explanation of why any available remedies have not been pursued;

(g) the object of the application (for example, the repeal or amendment of certain legislation, or the reversal of a decision and compensation); and

(h) copies of the judgments, decisions, and any other documents relating to the application.

Only a fully completed application along with all the relevant documents will have the effect of instigating a case. It will not be possible to amend or supplement the application after it has been submitted.

Urgent cases, interim measures and the Court’s priorities

The Court’s full procedures take some time (five years or more in many cases), but it will give priority to very urgent cases (for example, where a person’s life or well-being is immediately threatened). The Court can also be asked to implement its interim measures procedure. In rule 39 the Chamber or its President may indicate to the parties interim measures which it considers should be adopted.

The Court’s priority policy

The Court approaches its workload on the basis of the following priorities:

  • urgent applications—threats to life or health;
  • applications raising questions about the effectiveness of the Convention system: structural or endemic situations or raising questions of general interest (including ones with possible major implications for domestic legal systems or the European system);
  • applications which raise as their main complaint Articles 2, 3, 4, or 5(1) and which have given rise to direct threats to the physical integrity and dignity of human beings;
  • potentially well-founded applications based on other articles;
  • applications raising issues already dealt with by pilot or leading judgments;
  • applications identified as giving rise to a problem of admissibility; and
  • applications which are manifestly inadmissible.

Admissibility

The Court’s jurisdiction is limited and applications can be considered only if they meet the admissibility criteria set out in Article 35 of the Convention, which are rigorously applied and which are set out in turn below. It is therefore critically important to ensure that an application complies with the admissibility requirements, and contains all the facts and arguments of law. To have a real chance of success, it is necessary for the application to set out the facts, the relevant domestic law, and detailed submissions on the law of the Convention. One of the best ways of setting out the application is to model it on a judgment of the Court.

Article 34 provides that an application under the Convention can be brought by ‘any person, non-governmental organization or group of individuals claiming to be
the victim of a violation’. Neither individuals nor legal persons have to be citizens
of the state concerned, nor of any Member State. They do not have to be resident or physically present in the territory. Applications may not be brought by governmental organizations or other ‘emanations of the state’. Although applications may be brought by groups of individuals and non-governmental organizations (NGOs), the organization or group must itself be a victim of a violation.

Who is a ‘victim’?

An applicant must be one of three types of victim: actual, potential, and indirect.

An actual victim is someone who is personally affected by the alleged violation. It
is not necessary to show that any detriment has been suffered, although this will
be relevant to the remedy.

A potential victim is one who is at risk of being directly affected by a law or administrative act.

An indirect victim is one who is immediately affected by a violation which directly affects another, such as a family member of someone imprisoned or killed. Family members of those killed or imprisoned can also successfully include in their cases applications about direct violations of their rights—for example Article 3 in disappearance cases. Another example of an indirect victim is a family member of someone deported or facing deportation.

Against whom can an application be brought?

Only states are parties to the Convention, and therefore only those states can commit violations. Where there are several state organs involved, it will not be necessary for this purpose to identify which level of the state organization is responsible. Applications cannot be brought against private persons or institutions. However, the application may be based on the state’s failure to fulfill positive obligations to ensure that human rights are respected by private persons within the state’s jurisdiction.

Extent of jurisdiction

Under Article 1, signatory states are required to ‘secure to everyone within their jurisdiction’ the rights and freedoms protected by the Convention. This means that states are liable for all events that take place in the territory for which they are responsible, not just those affecting their own nationals, and even if the effects of the events might be felt outside the Council of Europe area.

The application must concern a Convention issue

The Court’s jurisdiction extends only to applications relating to the rights and freedoms contained in the Convention and the Protocols that the Member State in question has ratified.

Exhaustion of domestic remedies

The ECtHR has consistently held that it ‘may only deal with the matter after all domestic remedies have been exhausted’.

This rule is applied strictly in practice. It applies only to the remedies that are available, sufficient, and which relate to the breaches alleged. In considering the nature of the remedy, the Court takes into account ‘the principles of flexibility and avoidance of undue formalism developed in its case-law on Article 35, in particular that it is sufficient if the applicant has raised the substance of his Convention application before the domestic authorities’. If a potential applicant to the Court is in doubt as to whether alternative remedies have been exhausted, it is usually sensible for the remedy to be pursued, though a ‘protective’ application to the ECtHR could be lodged simultaneously to avoid falling foul of the four-month time limit should the Court subsequently decide that the remedy was not effective and did not need to be pursued.

Four-month time limit

Once Protocol 15 is in force (later in 2015?), applications to the ECtHR must be made within four months of the final decision of the domestic proceedings (or the date that
the victim was informed about the final decision) or, where there are no effective domestic remedies, of the violation of the Convention. This is a reduction from the previous six-month limit. There is very little flexibility for cases brought outside this time limit, though lack of knowledge of the violation may make a later application possible.

Other inadmissibility grounds

Under Article 35(2) and (3), the Court may declare an application inadmissible on 
further grounds, which are dealt with in turn below.

(a) Anonymity

Anonymous applications are inadmissible; although the complainant may request 
on the application form that he or she wishes his or her identity to be kept confidential (apart from disclosure to the Member State itself).

(b) Petition is ‘substantially the same as’ previous applications

This restriction prevents successive applications by the same applicant in respect of 
the same facts, and is not interpreted by the Court to restrict applications in respect of different instances even if the issues are substantially the same. Similarly, the provision does not act to bar a second application where new facts have arisen since the first application.

(c) Examination by another international body

If the matter has already been submitted to, and dealt with by, some other inter- 
national procedure and contains no new information, it will be inadmissible.

(d) Incompatible with the provisions of the Convention

This ground covers applications which do not concern the rights and freedoms protected by the Convention, as well as situations in which the applicant is not within the jurisdiction of a Member State, or where the application is not directed against the state at all.

(e) Manifestly ill-founded

This is the most difficult criterion to assess. Ostensibly, this term is applied to applications that, on a preliminary examination, do not disclose any possible ground on which a violation could be established. Although the test is a prima facie one used to screen out clearly unmeritorious applications, it is applied very strictly. In effect, the Court’s assessment of whether an application is ‘ill-founded’ is a strict merits test. The Court’s assertion that a case is ‘manifestly ill-founded’ is not the same as 
saying that it is unarguable. Many cases that are plainly arguable are excluded on this ground.

(f) No significant disadvantage


The Court can declare the case inadmissible if ‘the applicant has not suffered a significant disadvantage’. If the Court makes this initial assessment it then needs
to consider whether or not the application should be examined ‘to ensure respect
for human rights’ before it can declare the case inadmissible. All these criteria
have to be met before a case can be declared inadmissible:

  • the applicant must not have suffered a significant disadvantage;
  • respect for human rights does not require an examination of the application on the merits; and
  • the issue in the case has already been considered by a domestic tribunal (this last condition will be removed once Protocol 15 comes into force).

The Court has helpfully set out the principles that can be derived from the cases decided under this provision in its ‘Admissibility Guide’.

(g) Abuse of the right of petition


The fact that an applicant does not come to the Court with ‘clean hands’ or for a proper motive will not itself be a reason to reject the application. An inadmissibility ruling on this ground may arise, rather, if the application contains obviously untrue evidence, or where the applicant is demonstrably vexatious.

Decision on admissibility

A decision on admissibility will take several months and usually takes much longer. The ECtHR will give its decision on admissibility in writing. Clearly inadmissible
cases will go to the Single Judge within a few weeks, but where the issue is less clear
the decision will be made by a Committee or the Chamber. This question may be decided without further contact with the applicant or without communicating the case to the government concerned, however, it may seek the Government’s observations, and even seek a hearing before deciding the issue of admissibility (although this is very rare). In the majority of cases the inadmissibility decision will be made only on the basis of the application and the material provided by the applicant. The Court is not required to seek any further submissions or alert the applicant that this approach is being taken, and is unlikely to do so.

For more details see, Chapter 5, The Blackstone’s Guide to the Human Rights Act, 7th edition, OUP, 2015

African human rights systems: Amicus and Interventions

Cases in the African Commission and Court on Human and Peoples’ Rights

At the Human Rights Implementation Centre at the University of Bristol in the UK we are today launching a new project on interventions in the African Court and Commission on Human and Peoples’ Rights and we would appreciate feedback from those involved in litigation before those bodies.

We recognise the value of amicus interventions in cases before the African regional human rights bodies (including the African Commission and Court on Human and Peoples’ Rights) to highlight additional issues and support litigants’ arguments. We would be interested in cases where it might be useful for us to produce an amicus brief. The Centre has a number of lawyers and academics who have expertise in the relevant jurisprudence and also have wider knowledge of human rights authorities from other jurisdictions and, we hope, there may be opportunities where we might be able to support you in litigation before the African human rights bodies or indeed in cases before the Sub-Regional courts.

We are obviously conscious of the recent demise of INTERIGHTS (the International Centre for the Legal Protection of Human Rights), where I was the previous Executive Director, which regularly undertook such a function.  Please pass this on to anyone else you think might have similar cases or know about them.