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Edit]Protocol 4 - civil imprisonment, free movement, expulsion

Article 1 prohibits the imprisonment of people for breach of a contract. Article 2 provides for a right to freely move within a country once lawfully there and for a right to leave any country. Article 3 prohibits the expulsion of nationals and provides for the right of an individual to enter a country of his or her nationality. Article 4 prohibits the collective expulsion of foreigners.

Spain, Turkey and the United Kingdom have signed but never ratified Protocol 4. Andorra, Greece and Switzerland have neither signed nor ratified this protocol.

The United Kingdom's failure to ratify this protocol is due to concerns over the interaction of Article 2 and Article 3 with British nationality law. Specifically, several classes of "British national" (such as British National (Overseas)) do not have the right of abode in the United Kingdom and are subject to immigration control there. In 2009, the UK government stated that it had no plans to ratify Protocol 4 because of concerns that those articles could be taken as conferring that right.[26]

[edit]Protocol 6 - restriction of death penalty

Requires parties to restrict the application of the death penalty to times of war or "imminent threat of war".

Every Council of Europe member state has signed and ratified Protocol 6, except Russia who has signed but not ratified.[27]

[edit]Protocol 7 - crime and family

· Article 1 provides for a right to fair procedures for lawfully resident foreigners facing expulsion.

· Article 2 provides for the right to appeal in criminal matters.

· Article 3 provides for compensation for the victims of miscarriages of justice.

· Article 4 prohibits the re-trial of anyone who has already been finally acquitted or convicted of a particular offence (Double jeopardy).

· Article 5 provides for equality between spouses.

Despite having signed the protocol more than twenty years ago, Germany, the Netherlands and Turkey have never ratified it. Belgium, which signed the protocol in 2005, ratified it in 2012, becoming the latest member state to do so. The United Kingdom has neither signed nor ratified the protocol.[28]

[edit]Protocol 12 - discrimination

Applies the current expansive and indefinite grounds of prohibited discrimination in Article 14 to the exercise of any legal right and to the actions (including the obligations) of public authorities.

The Protocol entered into force on 1 April 2005 and has (As of July 2009) been ratified by 17 member states. Several member states — namely Bulgaria, Denmark, France, Lithuania, Malta, Monaco, Poland, Sweden, Switzerland and the United Kingdom — have not signed the protocol.[29]

The United Kingdom Government has declined to sign Protocol 12 on the basis that they believe the wording of protocol is too wide and would result in a flood of new cases testing the extent of the new provision. They believe that the phrase "rights set forth by law" might include international conventions to which the UK is not a party, and would result in incorporation of these instruments by stealth. It has been suggested that the protocol is therefore in a kind of catch-22, since the UK will decline to either sign or ratify the protocol until the European Court of Human Rights has addressed the meaning of the provision, while the court is hindered in doing so by the lack of applications to the court concerning the protocol caused by the decisions of Europe's most populous states — including the UK — not to ratify the protocol. The UK Government, nevertheless, "agrees in principle that the ECHR should contain a provision against discrimination that is free-standing and not parasitic on the other Convention rights".[30] The first judgment finding a violation of Protocol No. 12 was delivered in 2009 — Sejdić and Finci v. Bosnia and Herzegovina.



[edit]Protocol 13 - complete abolition of death penalty

Provides for the total abolition of the death penalty.[31] Currently the majority of the Council of Europe has ratified Protocol 13. Poland and Armenia have signed but not ratified the protocol, whilst Russia and Azerbaijan have not signed it.[32]

[edit]Procedural and institutional protocols

The Convention's provisions affecting institutional and procedural matters has been altered several times by mean of protocols. These amendments have, with of the exception of Protocol 2, amended the text of the convention. Protocol 2 did not amend the text of the convention as such, but stipulated that it was to be treated as an integral part of the text. All of these protocols have required the unanimous ratification of all the member states of the Council of Europe to enter into force.

Protocol 11

Protocols 2, 3, 5, 8, 9 and 10 have now been superseded by Protocol 11 which entered into force on 1 November 1998.[33] It established a fundamental change in the machinery of the convention. It abolished the Commission, allowing individuals to apply directly to the Court, which was given compulsory jurisdiction and altered the latter's structure. Previously states could ratify the Convention without accepting the jurisdiction of the Court of Human Rights. The protocol also abolished the judicial functions of the Committee of Ministers.

Protocol 14

Protocol 14 follows on from Protocol 11 in proposing to further improving the efficiency of the Court. It seeks to "filter" out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member state. Furthermore a case will not be considered admissible where an applicant has not suffered a "significant disadvantage". This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject-matter of the application had already been considered by a national court.

A new mechanism was introduced by Protocol 14 to assist enforcement of judgements by the Committee of Ministers. The Committee can ask the Court for an interpretation of a judgement and can even bring a member state before the Court for non-compliance of a previous judgement against that state. Protocol 14 also allows for European Union accession to the Convention. The protocol has been ratified by every Council of Europe member state, Russia being last in February 2010. It entered into force on 1 June 2010.[34]

A provisional Protocol 14bis had been opened for signature in 2009.[35] Pending the ratification of Protocol 14 itself, 14bis was devised to allow the Court to implement revised procedures in respect of the states which have ratified it. It allowed single judges to reject manifestly inadmissible applications made against the states who have ratified the protocol. It also extended the competence of three-judge chambers to declare applications made against those states admissible and to decide on their merits where there already is a well-established case law of the Court. Now that all Council of Europe member states have ratified Protocol 14, Protocol 14bis has lost its raison d'être and according to its own terms ceased to have any effect when Protocol 14 entered into force on 1 June 2010.

Summary of the treaty

The "European Convention on Human Rights" sets forth a number of fundamental rights and freedoms (right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination). More rights are granted by additional protocols to the Convention (Protocols 1 (ETS No. 009), 4 (ETS No. 046), 6 (ETS No. 114), 7 (ETS No. 117), 12 (ETS No. 177) and 13 (ETS No. 187)).

Parties undertake to secure these rights and freedoms to everyone within their jurisdiction.The Convention also establishes an international enforcement machinery. To ensure the observance of the engagements undertaken by the Parties, the European Court of Human Rights in Strasbourg has been set up. It deals with individual and inter-State petitions. At the request of the Committee of Ministers of the Council of Europe, the Court may also give advisory opinions concerning the interpretation of the Conventions and the protocols thereto.

Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 (1), the control machinery established by the Convention has been restructured. All alleged violations of human rights are referred directly to the Court. In the majority of cases the Court sits in Chambers of seven judges. It decides on the admissibility and merits of applications and if necessary undertakes an investigation. The Court will also place itself at the disposal of the parties 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. Hearings are public unless the Court in exceptional circumstances decides otherwise.

Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases (serious questions affecting the interpretation or application of the Convention or the protocols thereto, or serious issues of general importance), request that the case be referred to the Grand Chamber. If the request is accepted, the resulting judgment of the Grand Chamber will be final. Judgments of Chambers will become final when the parties declare that they will not request that the case be referred to the Grand Chamber, or have made no request for reference three months after the date of the judgment, or, if such a request is made, when the panel of the Grand Chamber rejects the request to refer.

The parties to a case must abide by the judgments of the Court and take all necessary measures to comply with them. The Committee of Ministers supervises the execution of judgments. The Secretary General may request Parties to provide explanations on the manner in which their domestic law ensures the effective implementation of the Convention.

The European Convention on Human Rights (Unofficial summary)
  Under the Convention, which was signed in Rome on 4 November 1950 and came into force in 1953, the States Parties guarantee the basic civil and political rights of a state governed by the rule of law, not only to their own citizens but to all persons "within their jurisdiction". States or individuals can bring a complaint before the Court set up by the Convention. However, the Convention is not necessarily incorporated into each state's national legal system. The theory of international law whereby human rights have a fundamental character placing them above the legislation and practices of sovereign states is thus brought into practice.
The rights guaranteed The right to life (Article 2) Article 2 protects the individual against death inflicted arbitrarily by the State; but it does not exclude the use of the death penalty if carried out in accordance with the law. Protocol No. 6, abolishing the death penalty in time of peace, was adopted in 1985. A new protocol, abolishing death penalty is being prepared. The right to liberty and security of person (Article 5) Article 5 guarantees people physical liberty by protecting them from arbitrary arrest and detention and according them certain basic procedural rights. Its provisions are extended by Article 1 of Protocol No. 4 which prohibits imprisonment for debt. The right to a fair trial in civil and criminal matters (Article 6) This right is complemented by Article 13, which ensures the right to an effective remedy before a national authority. Article 6 includes the condition that the proceedings must take place within a "reasonable time". Complaints of violations of this provision are those most frequently brought by applicants. The notion of a fair trial is completed by the principle that criminal law should not be retroactive (Article 7), the right of appeal in criminal cases, the right to compensation for wrongful conviction, and the right not to be tried or punished twice for the same offence (Articles 2, 3 and 4 of Protocol No. 7). Respect for private and family life, home and correspondence (Article 8), which may be linked to the right to marry and found a family (Article 12). The equality of rights and responsibilities of spouses during marriage (Article 5 of Protocol No. 7). The right to freedom of expression (including freedom of the press) (Article 10) The requirements of this basic right are a logical development of the rights guaranteed by Article 9 (freedom of thought, conscience and religion). Freedom of peaceful assembly and association (Article 11). The right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1). The right to education (Article 2 of Protocol No. 1). The right to free elections (Article 3 of Protocol No. 1). The Council of Europe and the protection of human rights Liberty of movement and freedom to choose where to live (Article 2 of Protocol No. 4). What is prohibited Torture and inhuman or degrading treatment and punishment (Article 3). Slavery, servitude and forced labour (Article 4). Discrimination in the enjoyment of rights and freedoms guaranteed by the Convention (Article 14). Expulsion of a state's own nationals or denying them entry, and the collective expulsion of aliens. (Articles 3 and 4 of Protocol No. 4) Procedural safeguards also protect foreigners under threat of expulsion from a country (Article 1 of Protocol No. 7).
The Convention provides for a European Court of Human Rights to deal with individuals' petitions and inter-state cases. The Judges are entirely independent and are elected by the Parliamentary Assembly. The Committee of Ministers of the Council of Europe supervises the execution of the judgment where a violation has been found, ensuring that the state takes appropriate remedial action, for example by means of new administrative procedures or by legislation Source: Council of Europe Directorate General of Human Rights www.humanrights.coe.int

 

 

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The European Convention on Human Rights (ECHR) was signed in Rome on 4 November 1950 by 12 European countries, including Denmark. Its full name is the Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention entered into force on 3 September 1953. So far, the ECHR is the only human rights instrument which has been incorporated into Danish law. It was implemented by Act No. 285 of 29 April 1992 and is accordingly applicable Danish law.


Contents of the Convention
Articles 1-14 of the Convention set out certain fundamental civil and political rights and freedoms: Article 2: the right to life; Article 3: prohibition of torture and other inhuman or degrading treatment or punishment; Article 4: prohibition of slavery and forced labour; Article 5: right to liberty and security; Article 6: right to a fair trial; Article 7: no punishment without law; Article 8: right to respect for private and family life; Article 9: right to freedom of thought, conscience and religion; Article 10: freedom of expression; Article 11: freedom of assembly and association; Article 12: right to marriage; Article 13: right to an effective remedy; and Article 14: prohibition of discrimination.

Articles 15-18 deal with certain limitations in human rights which the Member States may prescribe in special circumstances.

Articles 19-51 describe the complaints system associated with the Convention.


Additional protocols
The European Convention on Human Rights was adopted in 1950, and society has changed in Europe since then, both as regards values and legal perception. The Additional Protocols reflect attempts by the Council of Europe to incorporate these changes into its human rights system. Human rights developments in the UN system also impact on the development of human rights by the Council of Europe.

Protocols Nos. 1, 4, 6, 7, 12, 13 and 14 are so-called Additional Protocols, which means that they comprise an expansion of one or more of the human rights of the Convention, or that they contain human rights not included in the Convention itself.

Protocol No. 14 streamlines the work of the Court. It introduces a new mechanism to assist the Committee of Ministers in executing decisions. The Committee may ask the Court to rule on an interpretation of a decision and may even institute proceedings before the Court if a Member State fails to comply with a previous ruling in its disfavour. This Protocol entered into force on 1 June 2010.

The other protocols (Nos. 2, 3, 5, 8, 9 and 10) are so-called amending protocols concerning the work of the former Commission and the Court. Protocol No. 11 has replaced those protocols and has been incorporated into the Convention itself. Protocol No. 11 abolished the Commission, and the Court is now the only complaints body.

Protection against the death penalty and racism
The first Additional Protocol was adopted already in 1952, and the most recent one in 2000.

Additional Protocols Nos. 1, 4, 6 and 7 stipulate some more civil and political rights.

Additional Protocol No. 1: Article 1: protection of property; Article 2: right to education; Article 3: right to free elections.

Additional Protocol No. 4: Article 1: prohibition of imprisonment for debt; Article 2: freedom to choose one’s residence; Article 3: prohibition of expulsion of nationals; Article 4: prohibition of collective expulsion of aliens.
Additional Protocol No. 6: Article 1: abolition of the death penalty.
Additional Protocol No. 7: Article 1: procedural safeguards relating to expulsion of aliens; Article 2: right of appeal in criminal matters; Article 3: compensation for wrongful conviction; Article 4: right not to be tried or punished twice; Article 5: equality between spouses.

Additional Protocol No. 11, which simplifies the complaints system, has been incorporated into the most recent version of the Convention.
Additional Protocol No. 12 is to strengthen the prohibition of discrimination. This Protocol entered into force on 1 April 2005.
Additional Protocol No. 13 completely abolishes the death penalty.

When an additional protocol has entered into force (Nos. 1, 4, 6, 7 and 11), it is an integral part of the Convention and applies with the same strength. This means that it binds the Member States just as much as the actual Convention, and citizens can complain to the European Court of Human Rights when they believe that a Member State has infringed upon one of their rights according to an Additional Protocol.

 

DEVELOPMENT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, 1950

 

In the aftermath of the Second World War the countries Europe had come to the conclusion that there was a need to prevent any recurrence of the atrocities of the Second World War, to prevent the creation of dictatorships. This gave rise to the creation of the Council of Europe in 1949 (not to be confused with the Council of Ministers in the EU). The Council of Europe set to work on negotiation and formulation of what was intended to become a legally binding convention on human rights for the nations of Europe. The intention was that for the first time human beings within Europe should have human rights enforceable under international law, before a court independent of the nation states, against public authorities. At the same time there was also a movement towards what subsequently become known as the EU.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, known simply as the European Convention on Human Rights (ECHR), was the COE's first legal treaty to protect human rights, as well as the first international human rights treaty with enforceable mechanisms. It was inspired by the United Nations'Universal Declaration of Human Rights (1948), which was signed in Rome on November 4, 1950, and entered into force on September 3, 1953. Only member states of the COE can become a party to the ECHR.

The ECHR's preamble provides for "the maintenance and further realization of human rights and 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."

The treaty deals mainly with civil and political rights, which are found in articles 1-18. Articles 19-51 list the working mechanisms of the European Court and Commission, while Protocol 1, 4, 6, 7, and 12include additional rights. The right of individual complaint (article 25) obliges the states to accept the Court as having authority to rule over issues from within that state.

Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 (1), the control machinery established by the Convention has been restructured. All alleged violations of human rights are referred directly to the Court. In the majority of cases the Court sits in Chambers of seven judges. It decides on the admissibility and merits of applications and if necessary undertakes an investigation. The Court will also place itself at the disposal of the parties 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. Hearings are public unless the Court in exceptional circumstances decides otherwise.

Differences between the ECHR and EU treaties

It is important to remember that the European Convention on Human Rights and the treaties of the EU are quite separate. The European Convention on Human Rights deals with human rights and their enforcement by the institutions created by the Convention. The EU treaties originally dealt with issues connected with trade between the member states. Subsequent treaties have expanded the area of activities covered by the EU treaties, creating laws and regulations which only apply to treaty matters; there are separate institutions created by the EU treaties for dealing with enforcement of these laws and regulations. The European Convention on Human Rights and the EU treaties are separate and distinct. However it should be noted that the member states of the EU agreed that no state would be admitted to membership of the EU unless it accepted the fundamental principles of the European Convention on Human Rights and agreed to declare itself bound by it.

The European Convention on Human Rights was drafted taking the Universal Declaration of Human Rights 1948 as its starting point, but with the pursuit of the aims and objectives of the Council of Europe, through the maintenance and further realisation of human rights and fundamental freedoms, firmly in mind. Once its terms had been agreed it was opened for signature in Rome on 4 November 1950 and took effect once ten of the subscribing states, described as ‘high contracting parties’ (HCPs) in the document, had executed and deposited with the Secretary General of the Council of Europe the necessary instrument of ratification. It entered into force in September 1953.

The European Convention on Human Rights represented the first steps for the collective enforcement of certain of the rights set out in the Universal Declaration since, in addition to defining a list of civil and political rights and freedoms, it created a means of enforcement of the obligations entered into by HCPs. Three institutions or organisations were set up to discharge this responsibility, namely the European Commission of Human Rights (usually referred to as the Commission, which was set up in 1954), the European Court of Human Rights (which was not set up until 1959) and the Committee of Ministers of the Council of Europe (i.e. the respective Minister of Foreign Affairs of each of the member states or their representative).

Whilst the Convention as originally drafted provided for complaints to be brought against HCPs either by another HCP or by individual applicants (which might be either individuals, groups of individuals or non-governmental organisations), the right of individuals to bring complaints was an option for the individual HCP, so that, unless the state opted in, the individual would be prevented from bringing a complaint against the particular state.

The European Court of Human Rights

The Convention establishes the European Court of Human Rights. The European Court of Human Rights is an international court based in Strasbourg. It consists of a number of judges equal to the number of member states of the Council of Europe that have ratified the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court's judges sit in their individual capacity and do not represent any state. In dealing with applications, the Court is assisted by a Registry consisting mainly of lawyers from all the member states (who are also known as legal secretaries). They are entirely independent of their country of origin and do not represent either applicants or states.

The Court applies the European Convention on Human Rights. Its task is to ensure that states respect the rights and guarantees set out in the Convention. It does this by examining complaints (known as applications) lodged by individuals or, sometimes, by states. Where it finds that a member state has violated one or more of these rights and guarantees, the Court delivers a judgment. Judgments are binding: the countries concerned are under an obligation to comply with them.

An individual may lodge an application with the Court if they consider that they have personally and directly been the victim of a violation of the rights and guarantees set out in the Convention or its Protocols. The violation must have been committed by one of the states bound by the Convention.

Full text see:


Date: 2015-02-16; view: 298


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