Theme 1. European Court of Human Rights as a human rights protection institution of the European Convention 1950

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1 Overview of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the «European Convention on Human Rights»is a creation of the Council of Europe. It was opened for signature in Rome on November 4, 1950; and entered into force on September 3, 1953. The Convention gave effect to certain rights stated in the Universal Declaration of Human Rights and established an international judicial organ with jurisdiction to find against States that do not fulfil their undertakings. To enfrorce the convention rights there was created a right of individual petition

– the right of individuals and organizations to challenge their Government through the Strasbourg process, by taking their case to the European Commission of Human Rights (established in 1954), and then to the European Court (established in 1959). This right of individual petition was in many ways revolutionary at the time of creation the Convention system. Article 34, establishing the right of individual petition, gives individuals a genuine right to take legal action at international level. It is also one of the fundamental guarantees of the effectiveness of the Convention system – «a key component of the machinery» for the protection of human rights (Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A No. 310, § 70; Mamatkulov and Askarov v. Turkey

[GC], Nos. 46827/99 and 46951/99, §§ 100 and 122, ECHR 2005-I).

The right to apply to the Court is absolute and admits of no hindrance. The authorities must refrain from putting any form of pressure on applicants to withdraw or modify their complaints. According to the Court, pressure may take the form of direct coercion and flagrant acts of intimidation in

respect of applicants or potential applicants, their families or their legal representatives, but also improper indirect acts or contacts.

The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,^[1] the convention entered into force on 3 September 1953.

All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.^[2]

The Convention established the European Court of Human Rights (ECtHR). Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). The European Convention is still the only international human rights agreement providing such a high degree of individual protection. State parties can also take cases against other state parties to the Court, although this power is rarely used.

History

The development of a regional system of human rights protection operating across Europe can be seen as a direct response to twin concerns. First, in the aftermath of the Second World War, the convention, drawing on the inspiration of the Universal Declaration of Human Rights can be seen as part of a wider response of the Allied Powers in delivering a human rights agenda through which it was believed that the most serious human rights violations which had occurred during the Second World War (most notably, the Holocaust) could be avoided in the future. Second, the Convention was a response to the growth of Communism in Central and Eastern Europe and designed to protect the member states of the Council of Europe from communist subversion. This, in part, explains the constant references to values and principles that are "necessary in a democratic society" throughout the Convention, despite the fact that such principles are not in any way defined within the convention itself.^[3]

The Convention was drafted by the Council of Europe after Second World War in response to a call issued by Europeans from all walks of life who had gathered at the Hague Congress. Over 100 parliamentarians from the twelve member states of the Council of Europe gathered in Strasbourg in the summer of 1949 for the first ever meeting of the Council's Consultative Assembly to draft a "charter of human rights" and to establish a court to enforce it. British MP and lawyer Sir David Maxwell-Fyfe, the Chair of the Assembly's Committee on Legal and Administrative Questions, was one of its leading members and guided the drafting of the Convention. As a prosecutor at the Nuremberg Trials, he had seen first-hand how international justice could be effectively applied. With his help, the French former minister and Resistance fighter Pierre-Henri Teitgensubmitted a report^[4] to the Assembly proposing a list of rights to be protected, selecting a number from the Universal Declaration of Human Rights just agreed to in New York, and defining how the enforcing judicial mechanism might operate. After extensive debates,^[5] the Assembly sent its final proposal^[6] to the Council's Committee of Ministers, which convened a group of experts to draft the Convention itself.

The Convention was designed to incorporate a traditional civil liberties approach to securing "effective political democracy", from the strongest traditions in the United Kingdom, France and other member states of the fledgling Council of Europe. The Convention was opened for signature on 4 November 1950 in Rome. It was ratified and entered into force on 3 September 1953. It is overseen and enforced by the European Court of Human Rights in Strasbourg, and the Council of Europe. Until procedural reforms in the late 1990s, the Convention was also overseen by a European Commission on Human Rights.