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European Convention on Human Rights-Part 05(Final)

  1/12/2014

 [edit] 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.[21]

[edit] 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).

[edit] Article 18 - permitted restrictions

Main article: Article 18 of the European Convention on Human Rights

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.

[edit] Convention protocols

As of January 2010[update], fifteen protocols to the Convention have been opened for signature. These can be divided into two main groups: those amending the framework of the convention system, and those expanding the rights that can be protected. The former require unanimous ratification by member states before coming into force, while the latter require a certain number of states to sign before coming into force.

[edit] Protocol 1

This Protocol contains three different rights in which the signatories could not agree to place in the Convention itself. Monaco and Switzerland have signed but never ratified Protocol 1.[22]

[edit] Article 1 - property

Article 1 provides for the right to the peaceful enjoyment of one's possessions.

[edit] Article 2 - education

Article 2 provides for the right not to be denied an education and the right for parents to have their children educated in accordance with their religious and other views. It does not however guarantee any particular level of education of any particular quality.[23]

Although phrased in the Protocol as a negative right, in ?ahin v. Turkey the Court ruled that:

"it would be hard to imagine that institutions of higher education existing at a given time do not come within the scope of the first sentence of Article 2 of Protocol No 1. Although that Article does not impose a duty on the Contracting States to set up institutions of higher education, any State doing so will be under an obligation to afford an effective right of access to them. In a democratic society, the right to education, which is indispensable to the furtherance of human rights, plays such a fundamental role that a restrictive interpretation of the first sentence of Article 2 of Protocol No. 1 would not be consistent with the aim or purpose of that provision."[24]

[edit] Article 3 - elections

Article 3 provides for the right to regular, free and fair elections.

[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.[25]

[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.[26]

[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, Belgium, Germany, the Netherlands and Turkey have never ratified it. Spain which signed the protocol in 1984 ratified it in 2009, becoming the latest member state to do so. The United Kingdom has neither signed nor ratified the protocol.[27]

[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[update]) 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.[28]

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".[29] The first judgment finding a violation of Protocol No. 12 was delivered in 2009 — Sejdi? and Finci v. Bosnia and Herzegovina.

[edit] Protocol 13 - complete abolition of death penalty

Provides for the total abolition of the death penalty.[30] As of May 2011[update] 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.[31]

[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.[32] 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.[33]

A provisional Protocol 14bis had been opened for signature in 2009.[34] 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.






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