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European Convention on Human Rights-Part 04

  7/17/2013


 [edit] Article 11 - association

Main article: Article 11 of the European Convention on Human Rights

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".

[edit] Article 12 - marriage

Main article: Article 12 of the European Convention on Human Rights

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.

[edit] 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.

[edit] 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 opinion, 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).

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.

[edit] Article 15 - derogations

Article 15 allows contracting states to derogate from certain rights guaranteed by the Convention in time of "war or other public emergency threatening the life of the nation". Permissible derogations under article 15 must meet three substantive conditions:

  1. there must be a public emergency threatening the life of the nation;
  2. any measures taken in response must be "strictly required by the exigencies of the situation", and
  3. 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[16]

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.[17]

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,[18]
  • 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,[19]
  • threaten the continuance of the organised life of the community,[20]
  • exceptional such that measures and restriction permitted by the Convention would be "plainly inadequate" to deal with the emergency.[20]

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