ECHR in Strasbourg, Cedex, France
The European Court of Human Rights
(ECtHR; French: Cour européenne des droits de l’homme) is a supra-national or international court established by the European Convention on Human
Rights, itself a version of the Universal
Declaration of Human Rights. It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols. An application can be lodged by an individual, a group of individuals or one or more of the other contracting states, and, besides
judgements, the Court can also issue advisory opinions. The Convention was adopted within the context of the Council of Europe, and all of its 47 member states are contracting parties to the Convention. The Court is based in Strasbourg, France.
the European Court is a law unto itself. Where case have been in the queue
for many years and additional evidence is provided, this sometimes has the
effect of eliciting a response from the Court ruling the case invalid with
no explanation or recourse - in denial of Article 13 and
Prior to the adoption of Protocol no.14, judges were elected for a six-year term, with the option of renewal of this term. Now judges are elected for a non-renewable nine year term. The number of full-time judges sitting in the Court is equal to that of the contracting states to the European Convention on Human Rights. The Convention requires that judges are of high moral character and to have qualifications suitable for high judicial office, or be a jurisconsult of recognised competence. Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from the three candidates nominated by each contracting state. Judges are elected whenever a sitting judge's term has expired or when a new state accedes to the Covenant. The retiring age of judges is 70, but they may continue to serve as judges until a new judge is elected or until the cases in which they sit have come to an end. The judges perform their duties in an individual capacity and are prohibited from having any institutional or other type of ties with the contracting state on behalf of whom they were elected. To ensure the independence of the Court judges are not allowed to participate in activity that may compromise the Court's independence. A judge cannot hear or decide a case if he has a family or professional relationship with the parties. Judges can only be dismissed from office if the other judges decide, by two-thirds majority, that the judge has ceased to fulfil the required conditions. Judges enjoy, during their term as judges, the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe.
Plenary court and administration
The plenary court is an assembly of all of the Court's judges. It has no judicial functions. It elects the court's president, vice-president, registrar and deputy registrar. It also deals with administrative matters, discipline, working methods, reforms, the establishment of Chambers and the adoption of the Rules of Court.
The jurisdiction of the court is generally divided into inter-state cases, applications by individuals against contracting states, and advisory opinions in accordance with Protocol No.2. Applications by individuals constitute the majority of cases heard by the Court. A Committee is constituted by three judges, Chambers by seven judges and a Grand
Chamber by 17 judges.
Applications by individuals
Applications by individuals against contracting states, alleging that the state violates their rights under the European Convention on Human Rights, can be made by any person, non-governmental organisation or group of individuals. Although the official languages of the Court are English and French applications may be submitted in any one of the official languages of the contracting states. An application has to be made in writing and signed by the applicant or by the applicant's representative. Once registered with the Court, the case is assigned to a judge
rapporteur, which can make the final decision that the case is inadmissible. A case may be inadmissible when it is incompatible with the requirements of ratione
materiae, ratione temporis or ratione personae, or if the case cannot be proceeded with on formal grounds, such as non-exhaustion of domestic remedies, lapse of the six months form the last internal decision complained of, anonymity, substantial identity with a matter already submitted to the Court, or with another procedure of international investigation. If the rapporteur judge decides that the case can proceed, the case if referred to a Chamber of the Court which, unless it decides that the application is inadmissible, communicates the case to the government of the state against which the application is made, asking the government to present its observations on the case. The Chamber of Court then deliberates and judges the case on its admissibility and its merit. Cases which raise serious questions of interpretation and application of the European Convention on Human Rights, a serious issue of general importance, or which may depart from previous case law can be heard in the Grand Chamber if all parties to the case agree to the Chamber of the Court relinquishing jurisdiction to the Grand Chamber. A panel of five judges decides whether the Grand Chamber accepts the referral.
piece of the Berlin Wall in front of the ECHR
Any contracting state to the European Convention on Human Rights can sue another contracting state in the Court for alleged breaches of the Convention, although in practice this is very rare.
The Committee of Ministers may, by majority vote, ask the Court to deliver an advisory opinion on the interpretation of the European Convention on Human Rights, unless the matter relates to the content and scope of fundamental rights which the Court already considers.
Procedure and decisions
After the preliminary finding of admissibility the Court examines the case by hearing representations from both parties. The Court may undertake any investigation it deems necessary on the facts or issues raised in the application and contracting states are required to provide the Court with all necessary assistance for this purpose. The European Convention on Human Rights requires all hearings to be in public, unless there are exceptional circumstances justifying the holding of a private hearing. In practice the majority of cases are heard in private following written pleadings. In confidential proceedings the Court may assist both parties in securing a settlement, in which case the Court monitors the compliance of the agreement with the Convention. However, in many cases, a hearing is not held. The judgement of the Grand Chamber is final. Judgements by the Chamber of the Court becomes final three months after they are issued, unless a reference to the Grand Chamber for review or appeal has been made. If the panel of the Grand Chamber rejects the request for referral, the judgement of the Chamber of the Court becomes final.
The Court's chamber decides both issues regarding admissibility and merits of the case. Generally, both these issues are dealt with in the same
judgement. In final judgements the Court makes a declaration that a contracting state has violated the Convention, and may order the contracting state to pay material and/or moral damages and the legal expenses incurred in domestic courts and the Court in bringing the case. The Court's judgements are public and must contain reasons justifying the decision. Article 46 of the Convention provides that contracting states undertake to abide by the Court's final decision. On the other hand, advisory opinions are, by definition, non-binding. The Court has to date decided consistently that under the Convention it has no jurisdiction to annul domestic laws or administrative practices which violate the Convention. The Committee of Ministers of the Council of Europe is charged with supervising the execution of the Court's
judgements. The Committee of Ministers oversees the contracting states' changes to their national law in order that it is compatible with the Convention, or individual measures taken by the contracting state to redress violations. Judgements by the Court are binding on the respondent states concerned and states usually comply with the Court's
Chambers decide cases by a majority. Any judge who has heard the case can attach to the judgement a separate opinion. This opinion can concur or dissent with the decision of the Court. In case of a tie in voting, the President has the casting vote.
Relationship with other courts - The European Court of Justice
The Court of Justice of the European Union (ECJ) is not related to the European Court of Human Rights. However, since all EU states are members of the Council of Europe and have signed the Convention on Human Rights, there are concerns about consistency in case law between the two courts. The ECJ refers to the case-law of the European Court of Human Rights and treats the Convention on Human Rights as though it was part of the EU's legal system, since it forms part of the legal principles of the EU member states. Even though its member states are party to the Convention, the European Union itself is not a party, as it did not have competence to do so under previous treaties. However, EU institutions are bound under article 6 of the EU Treaty of Nice to respect human rights under the Convention. Furthermore, since the Treaty of Lisbon took effect on 1 December 2009, the EU is expected to sign the Convention. This would mean that the Court of Justice is bound by the judicial precedents of the Court of Human Rights's case law and thus be subject to its human rights law, avoiding issues of conflicting case law between these two courts.
Most of the Contracting Parties to the European Convention on Human Rights have incorporated the Convention into their own national legal systems, either through constitutional provision, statute or judicial decision.
History and structure
The Court was established on the 21 January 1959 on the basis of Article 19 of the European Convention on Human Rights when its first members were elected by the Consultative Assembly of the Council of Europe. The Convention charges the Court with ensuring the observance of the engagement undertaken by the contracting states in relation to the Convention and its protocols, that is ensuring the enforcement and implementation of the European Convention in the member states of the Council of Europe. The jurisdiction of the Court has been recognised to date by all 47 member states of the Council of Europe. In 1998, the Court became a full-time institution and the European Commission of Human Rights, which used to decide on admissibility of applications, was abolished by Protocol 11.
The accession of new states to the European Convention on Human Rights following the fall of the Berlin Wall in 1989 led to a sharp increase in applications filed in the Court. The efficiency of the Court was threatened seriously by the large number of pending applications, which were accumulating and increasing steadily. In 1999 8,400 applications were allocated to be heard. In 2003 27,200 cases were filed and the number of pending applications rose to approximately 65,000. In 2005, the Court opened 45,500 case files. In 2009 57,200 applications were allocated, with the number of pending applications rose to 119,300. At the time more than 90 percent of them, were declared to be inadmissible, and the majority of cases decided, around 60 percent of the decisions by the Court related to what is termed repetitive cases, where the Court has already delivered judgement finding a violation of the European Convention on Human Rights or where well established case law exists on a similar case. Protocol 11 was designed to deal with the backlog of pending cases by establishing the Court and its judges as a full-time institution, by simplifying the procedure and reducing the length of proceedings. However, as the workload of the Court continued to increase, the contracting states agreed that further reforms were necessary and in May 2004 the Council of Europe Committee of Ministers adopted Protocol 14 to the European Convention on Human Rights. Protocol 14 was drafted with the aim of reducing the workload of the Court and that of the Committee of Ministers of the Council of Europe, which supervises the execution of
judgements, so that the Court could focus on cases that raise important human rights issues.
Protocol no.14 reforms
Protocol no.14 entered into force on 1 June 2010, three months after it was ratified by all 47 contracting states to the Convention. Between 2006 and 2010, Russia was the only contracting state to refuse to ratify Protocol 14. In 2010, Russia ended its opposition to the protocol, in exchange for a guarantee that Russian judges would be involved in reviewing complaints against
Russia. Protocol no.14 led to reforms in three areas: The Court's filtering capacity was reinforced to deal with clearly inadmissible applications, new admissibility criteria were introduced so that cases where the applicant has not suffered a significant disadvantage would be declared inadmissible, and measures were introduced to deal more effectively with repetitive
Protocol 14 amended the Convention so that judges would be elected for a non-renewable term of nine years, whereas previously judges served a six year term with the option of renewal. Amendments were also made so that a single judge could reject plainly inadmissible applications, while prior to this protocol only a three judge committee could make this final decision. In cases of doubt, the single judge refers the applications to the Committee of the Court. A single judge may not examine applications against the state which nominated him. The three judge committee has jurisdiction to declare applications admissible and decide on the merits of the case if it was clearly well founded and based on well established case law. Previously the three judge committee could only declare the case inadmissible, but could not decide on the merits of the case, which could only be done by a chambers of seven judges or the Grand Chamber. Protocol no.14 also provides that when a three judge committee decides on the merits of a case, the judge elected to represent that state is no longer a compulsory member of this committee. The judge can be invited by the committee, to replace one of its members, but only for specific reasons, such as when the application relates to the exhaustion of national legal remedies.
Protocol 14 empowered the Court to declare applications inadmissible where the applicant has not suffered a significant disadvantage and which do not raise serious questions affecting the application or the interpretation of the Convention, or important questions concerning national law. The European Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written comments and taking part in hearings. In order to reduce the workload of the Court, Protocol 14 states that the Court should encourage the parties to reach a settlement at an early stage of the proceedings, especially in repetitive cases. The Committee of Ministers supervises the settlement's execution. Protocol no.14 also allows the Committee of Ministers to ask the Court to interpret a final judgement if there are difficulties in the execution of a final
judgement. In order to prevent repetitive applications concerning structural problems in contracting states on which the Court has previously made a final decision, the Committee of Ministers can in exceptional circumstances and with a two-thirds majority, initiate proceedings for non-compliance with a final decision in the Grand Chamber of the Court. Article 17 of protocol no.14 allows the European Union to become party to the Convention. In turn the Lisbon Treaty, which entered force in December 2009, provides that the European Union should accede and become a party to the Convention. The Committee of Ministers is to evaluate in 2012 to 2015 the extent to which the implementation of Protocol no.14 has improved the effectiveness of the Court. The Committee of Ministers is to decide before 2019 whether more reforms of the Court are necessary.
The court's interpretation of the Convention's reach is at times subject to criticism as either too narrow or too wide. For instance, the former judge in respect of Cyprus, Loukis
Loucaides, criticised the Court for a "reluctance to find violations in sensitive matters affecting the interests of the respondent States". On the other hand, the British Law Lord, Lord Hoffmann argued in 2009 that the Court has not taken the doctrine of the margin of appreciation far enough, being "unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe". Lord Hoffman considered that the ability of the court to interfere in the detail of domestic law ought to be curtailed. He was joined in the criticism by the president of the Belgian Constitutional Court, Marc
Criticism from Russia, a country held to be in violation of the Convention by the Court in many decisions, is frequent. The Court's judge in respect of Russia, Anatoly
Kovler, explaining his frequent dissenting opinions, noted that "I dislike when the Court evaluates non-European values as reactionary
(Refah v. Turkey)". The chairman of the Russian Constitutional Court Valery
Zorkin, pointing to the Markin v. Russia case, stated that Russia has the right to create a mechanism of protection from Court decisions "touching the national sovereignty, the basic constitutional principles".
There has also been criticism of the Court's structure. Loucaides wrote that by introducing in its Rules a Bureau, the Court created "a separate collective organ that had nothing to do with the structure of the Court organs according to the Convention".
The building, which houses the court chambers and Registry (administration and référendaires), was designed by the Richard Rogers Partnership and completed in 1995. The design is meant to reflect, amongst other things, the two distinct components of the Commission and Court (as it was then). Wide scale use of glass emphasises the openness of the court to European citizens.
Article 1 – respecting rights
Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a Contracting State's own national territory; the obligation to secure Convention rights then also extends to foreign territories, such as occupied land in which the State exercises effective control.
In Loizidou v Turkey, the European Court of Human Rights ruled that jurisdiction of member states to the convention extended to areas under that state's effective control as a result of military action.
Article 2 – life
Article 2 protects the right of every person to their life. The right to life extends only to human beings, not to non-human animals, or to "legal persons" such as corporations. In Evans v United Kingdom, the Court ruled that the question of whether the right to life extends to a human embryo fell within a state's margin of appreciation. In Vo v France, the Court declined to extend the right to life to an unborn child, while stating that "it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention".
The Court has ruled that states have three main duties under Article 2:
a duty to refrain from unlawful killing,
a duty to investigate suspicious deaths, and
in certain circumstances, a positive duty to prevent foreseeable loss of life.
The first paragraph of the article contains an exception for lawful executions, although this exception has largely been superseded by Protocols 6 and 13. Protocol 6 prohibits the imposition of the death penalty in peacetime, while Protocol 13 extends the prohibition to all circumstances. (For more on Protocols 6 and 13, see below).
The second paragraph of Article 2 provides that death resulting from defending oneself or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary".
Signatory states to the Convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war.
The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann and Others v United Kingdom it ruled that the exception contained in the second paragraph does not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.
Article 3 – torture
Article 3 prohibits torture and "inhuman or degrading treatment or punishment". There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention.
The Court has emphasized the fundamental nature of Article 3 in holding that the prohibition is made in "absolute terms ... irrespective of a victim's conduct". The Court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state.
Initially, the Court took a restrictive view on what consisted of torture, preferring to find that states had inflicted inhuman and degrading treatment. Thus the court held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture. In fact the Court only found a state guilty of torture in 1996 in the case of a detainee who was suspended by his arms while his hands were tied behind his back. Since then the Court has appeared to be more open to finding states guilty of torture and has even ruled that since the Convention is a "living instrument", treatment which it had previously characterized as inhuman or degrading treatment might in future be regarded as torture.
Article 4 – servitude
Article 4 prohibits slavery, servitude and forced labour but exempts labour:
done as a normal part of imprisonment,
in the form of compulsory military service or work done as an alternative by conscientious objectors,
required to be done during a state of emergency, and
considered to be a part of a person's normal "civic obligations".
Article 5 – liberty and security
Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept – security of the person has not been subject to separate interpretation by the Court.
Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on reasonable suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides those arrested with the right to be informed, in a language they understand, of the reasons for the arrest and any charge they face, the right of prompt access to judicial proceedings to determine the legality of the arrest or detention, to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article.
Assanidze v. Georgia, App. No. 71503/01 (Eur. Ct. H.R. Apr. 8, 2004)
Article 6 – fair trial
Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).
The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. In compliance with this Article, Turkey has now adopted a law abolishing these courts.
Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.
Steel v. United Kingdom (1998) 28 EHRR 603
Assanidze v. Georgia, App. No. 71503/01 (Eur. Ct. H.R. Apr. 8, 2004)
Othman (Abu Qatada) v. United Kingdom (2012) – Abu Qatada could not be deported to Jordan as that would be a violation of Article 6 "given the real risk of the admission of evidence obtained by torture". This was the first time the court ruled that such an expulsion would be a violation of Article 6.
Article 7 – retroactivity
Article 7 prohibits the retroactive criminalisation of acts and omissions. No person may be punished for an act that was not a criminal offence at the time of its commission. The article states that a criminal offence is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under domestic law at the time, so long as it was prohibited by international law. The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed.
Article 7 incorporates the legal principle nullum crimen, nulla poena sine lege into the convention.
Relevant cases are:
Kokkinakis v. Greece  ECHR 20
S.A.S. v. France  ECHR 69
Article 8 – privacy
Article 8 provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. There have been cases discussing consensual familial sexual relationships, and how the criminalisation of this may violate this article. However, the ECHR still deems such familial sexual acts to be criminal. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced parent to his/her child).
Notable case: Roman Zakharov v. Russia  EHCR 47143/06
Article 9 – conscience and religion
Article 9 provides a right to freedom of thought, conscience and religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"
Relevant cases are:
Kokkinakis v. Greece  ECHR 20
Universelles Leben e.V. v. Germany  (app. no. 29745/96)
Buscarini and Others v. San Marino  ECHR 7
Pichon and Sajous v. France  ECHR 898
Leyla Şahin v. Turkey  ECHR 299
Leela Förderkreis E.V. and Others v. Germany  ECHR
Lautsi v. Italy  ECHR 2412
S.A.S. v. France  ECHR 695
Eweida v United Kingdom , ECHR 2013
Article 10 – expression
Article 10 provides the right to freedom of expression, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This right includes the freedom to hold opinions, and to receive and impart information and ideas, but allows restrictions for:
interests of national security
territorial integrity or public safety
prevention of disorder or crime
protection of health or morals
protection of the reputation or the rights of others
preventing the disclosure of information received in confidence
maintaining the authority and impartiality of the judiciary
Relevant cases are:
Lingens v Austria (1986) 8 EHRR 407
The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, the "Spycatcher" case.
Bowman v United Kingdom  ECHR 4, (1998) 26 EHRR 1, distributing vast quantities of anti-abortion material in contravention to election spending laws
Communist Party v Turkey (1998) 26 EHRR 1211
Appleby v United Kingdom (2003) 37 EHRR 38, protests in a private shopping mall
Article 11 – association
Article 11 protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".
Vogt v Germany (1995)
Yazar, Karatas, Aksoy and Hep v Turkey (2003) 36 EHRR 59
Article 12 – marriage
Article 12 provides a right for women and men of marriageable age to marry and establish a family.
Despite a number of invitations, the Court has so far refused to apply the protections of this article to same-sex marriage. The Court has defended this on the grounds that the article was intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to parties in this area.
In Goodwin v United Kingdom the Court ruled that a law which still classified post-operative transsexual persons under their pre-operative sex, violated article 12 as it meant that transsexual persons were unable to marry individuals of their post-operative opposite
sex. This reversed an earlier ruling in Rees v United
Kingdom. This did not, however, alter the Court's understanding that Article 12 protects only different-sex couples.
The European Court of Human Rights ruled in Schalk and Kopf v Austria that countries are not required to provide marriage licenses for same-sex couples, however if a country allows same-sex couple marriage it must be done so under the same conditions that opposite-sex couples
marriage face: in order to prevent a breach of article 14 – the prohibition of discrimination. Additionally, the court ruled in the 2015 case of Oliari and Others v Italy, that states have a positive obligation to ensure there is a specific legal framework for the recognition and protection of same-sex couples.
Article 13 – effective remedy
Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free-standing and separately actionable infringement of the Convention.
Article 14 – discrimination
Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways and narrow in others. It is broad in that it prohibits discrimination under a potentially unlimited number of grounds. While the article specifically prohibits discrimination based on "sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status", the last of these allows the court to extend to Article 14 protection to other grounds not specifically mentioned such as has been done regarding discrimination based on a person's sexual orientation.
At the same time, the article's protection is limited in that it only prohibits discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex – Article 14 – in the enjoyment of the right to freedom of expression – Article 10). It has been said that laws regarding familial sexual relationships (or incest) are in breach of Article 14 when combined with Article 8.
Protocol 12 extends this prohibition to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long as it is provided for in national law.
Article 15 – derogations
Article 15 allows contracting states to derogate from certain rights guaranteed by the Convention in a time of "war or other public emergency threatening the life of the nation". Permissible derogations under article 15 must meet three substantive conditions:
there must be a public emergency threatening the life of the nation;
any measures taken in response must be "strictly required by the exigencies of the situation", and
the measures taken in response to it, must be in compliance with a state's other obligations under international law
In addition to these substantive requirements, the derogation must be procedurally sound. There must be some formal announcement of the derogation and notice of the derogation, any measures adopted under it, and the ending of the derogation must be communicated to the Secretary-General of the Council of Europe
As of 2016, eight member states had ever invoked derogations. The Court is quite permissive in accepting a state's derogations from the Convention but applies a higher degree of scrutiny in deciding whether measures taken by states under a derogation are, in the words of Article 15, "strictly required by the exigencies of the situation". Thus in A v United Kingdom, the Court dismissed a claim that a derogation lodged by the British government in response to the September 11 attacks was invalid, but went on to find that measures taken by the United Kingdom under that derogation were disproportionate.
In order for a derogation itself to be valid, the emergency giving rise to it must be:
actual or imminent, although states do not have to wait for disasters to strike before taking preventive measures,
involve the whole nation, although a threat confined to a particular region may be treated as "threatening the life of the nation" in that particular region,
threaten the continuance of the organised life of the community,
exceptional such that measures and restriction permitted by the Convention would be "plainly inadequate" to deal with the emergency.
Examples of such derogations include:
Operation Demetrius—Internees arrested without trial pursuant to "Operation Demetrius" could not complain to the European Commission of Human Rights about breaches of Article 5 because on 27 June 1975, the UK lodged a notice with the Council of Europe declaring that there was a "public emergency within the meaning of Article 15(1) of the Convention".
Article 16 – aliens
Article 16 allows states to restrict the political activity of foreigners. The Court has ruled that European Union member states cannot consider the nationals of other member states to be aliens.
Article 17 – abuse of rights
Article 17 provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. This addresses instances where states seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights (for example where an individual issues a death threat).
Article 18 – permitted restrictions
Article 18 provides that any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided. For example, Article 5, which guarantees the right to personal freedom, may be explicitly limited in order to bring a suspect before a judge. To use pre-trial detention as a means of intimidation of a person under a false pretext is, therefore, a limitation of right (to freedom) which does not serve an explicitly provided purpose (to be brought before a judge), and is therefore contrary to Article 18.
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Official and Unofficial
This subject matter is under investigation and we will provide you with
more details as the facts emerge. The time that Mr Kruschandl spent
behinds bars is the subject of an unauthorized Prison
Diary. We understand that an authorized version of these Prison
Diaries may follow after his Appeals have been heard in the European or
United Nations Courts.