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Numărul 0 / 2004 
THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN HISTORICAL AND SYSTEMATIC CONTEMPLATIONInaugural Lecture of Dr. Adrian HOLLAENDER as Associate Professor at the Babes-Bolyai University, delivered on the 23rd of October 2004
The European Convention on Human Rights The "Convention for the Protection of Human Rights and Fundamental Freedoms" (commonly known as the "European Convention on Human Rights") was adopted under the auspices of the Council of Europe to protect human rights and fundamental freedoms. The European Convention on Human Rights sets forth a number of fundamental rights and freedoms that Parties undertake to secure to everyone within their jurisdiction. To supervise its application it establishes international enforcement machinery designed to ensure that Parties respect their engagements under the Convention. The Court's judgements - if not brought before the Great Chamber of the Court or, in such case, after being decided by the Great Chamber - are final and binding. All Parties to a case must abide by them and take all necessary measures to comply with them. The Convention was drawn up under the auspices of the Council of Europe, an organisation of West European countries which is based in Strasbourg, France, and is quite separate from the European Community. The provisions of the Convention guarantee most, but not all, civil liberties, including the right to life, freedom from torture, freedom from arbitrary arrest, the right to a fair trial, the right to privacy, freedom of religion, freedom of expression, and freedom of assembly and association. The Council of Europe The Council of Europeis an international organization of 45 member states in the European region. It was founded on May 5, 1949 by the Treaty of London. Membership is open to all European states which accept the principle of the rule of law and guarantee fundamental human rights and freedoms to their citizens. One of the main successes of the Council was the European Convention on Human Rights in 1950, which serves as the basis for the European Court of Human Rights. The Council of Europe Council must not to be confused with the Council of the European Union, which is not a party to the Convention and has no role in the administration of the European Court of Human Rights. Most Council of Europe member states are party to the Convention; those that are not are required as a condition of their membership to accede to the convention at the earliest opportunity. The institutions of the Council of Europe are: The Secretariat, The Committee of Ministers, The Parliamentary Assembly, The European Court of Human Rights The major aims are: Protection of human rights, democracy and the rule of law , Promotion of Europe's cultural identity and diversity; Addressing problems facing European society including discrimination, xenophobia, environmental protection, AIDS, drugs and organised crime, Encouraging democratic stability via reform. The founding act of the Convention On 4 November 1950 the members of the Council of Europe signed the European Convention on Human Rights (ECHR). The official name of the Convention is the '''Convention for the Protection of Human Rights and Fundamental Freedoms'''. The Convention came into force in 3 September 1953 and three subsequent institutions were entrusted with safeguarding its workings: - The European Commission of Human Rights (1954) - The European Court of Human Rights (1959) - The Committee of Ministers of the Council of Europe The creation of these bodies (the court being based in Strasbourg) allowed individuals with a grievance against the state to challenge their treatment at an international level. The European Court of Human Rights The court, based in Strasbourg, was set up as a result of the European Convention on Human Rights, created in 1950. This set out a catalogue of civil and political rights and freedoms. It allows people to lodge complaints against States which have signed up to the Convention for alleged violations of those rights. Although founded in 1950, the court didn't actually come into existence until 1959. To start with, the number of cases coming forward was relatively few. But from 1980, they started to grow steadily and, by 2001, the Court was receiving nearly 14,000 applications a year from people who felt they had a grievance against a signatory State. The Court is made up of judges from every State that has signed up to the Convention. They are elected by the Parliamentary Assembly of the Council of Europe and serve for six years. The current incarnation of the European Court of Human Rights was instituted on November 1, 1998, as a means to systematize the hearing of Human Rights complaints from Council of Europe member states. The court's mission is to enforce the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified in 1953. The court replaced the existing enforcement mechanisms, which included the European Commission of Human Rights (created in 1954) and the previous, limited Court of Human Rights, which was created in 1959. There are two ways in which alleged breaches of the Convention's provisions by a member country can be brought to the attention of these bodies: The first is through a complaint made by one of the other countries which are also bound by the Convention. Countries appear to be, however, rather reluctant to bring cases against each other and will only do so in the most extreme cases or where their own interests are affected. The second, and most common, method of complaint is by a person whose rights have been infringed. This is used much more frequently and with greater effect. Any person claiming to be a victim of a violation of the Convention may lodge directly with the court in Strasbourg. Application forms are available from the registry. During war or other public emergency threatening life of the nation, governments can derogate from their obligations under the Convention. This enables them to restrict the exercise of some of the rights and freedoms, but only in so far as is necessary to deal with the emergency. The Convention establishes the European Court of Human Rights. Any person who feels that his or her rights have been violated under the Convention by a state party can take a case to the Court; the decisions of the Court are legally binding, and the Court has the power to award damages. State Parties can also take cases against other State Parties to the Court, although this power is - as aforementioned - rarely used. Prior to the entry into force of Protocol 11, individuals did not have direct access to the Court; they had to apply to the European Commission on Human Rights, which if it found the case to be well-founded would launch a case in the Court on the individual's behalf. Protocol 11 abolished the Commission, enlarged the Court, and allowed individuals to take cases directly to it. Prior to the new European Court of Human Rights that came into operation on the 1st of November 1998, there had been a separate Commission that decided on the admissibility of cases. The functions of the old Commission have now been incorporated into the Court. The new court was the result of the ratification of Protocol 11, an amendment to the Convention, which was ratified in October 1997. Judges were subsequently elected by the Council of Europe, and the court was opened approximately one year later. The court consists of a number of judges equal to the number of Council of Europe member states, which currently stand at forty-five. Despite this correspondence, however, there are no requirements that each state be represented on the court, nor are there limits to the number of judges belonging to any nationality. Judges are assumed to be impartial arbiters, rather than representatives of any nation. The court is divided into four "Sections", each of which consists of a geographic and gender-balanced selection of justices. The entire court elects a President and four Section Presidents, two of whom also serve as Vice-Presidents of the court. All terms last for three years. Each section selects a Chamber, which consists of the Section President and a rotating selection of six other justices. The court also maintains a 17-member Grand Chamber, which consists of the President, Vice-Presidents, and Section Presidents, in addition to a rotating selection of justices from one of two balanced groups. The selection of judges alternates between the groups every nine-month. Complaints of violations by member states are filed in Strasbourg, and are assigned to a Section. Each complaint is first heard by a committee of three judges, which may unanimously vote to strike any complaint without further examination. Once past committee, the complaint is heard and decided by a full Chamber. Decisions of great importance may be appealed to the Grand Chamber. Any decisions of the court are binding on the member states. Complaints to Strasbourg At the European level, the Court can only deal with cases if the defending state has accepted its jurisdiction. The human rights commission was originally set up to receive a complaint from any individual group of individuals or non-governmental organisation which claimed that it had been the victim in a breach of a particular element or elements of the convention. But in November 1998, a reorganised court came into being which took on the role of the commission. Once a complaint has been made, the court's lower bodies investigate the circumstances. If a case is deemed admissible, it can seek to find a settlement between the alleged victim and the defending public authority. If the parties fail to reach a settlement, the case may then progress further to a final judgement by the court. The responsibility for making sure that judgements against states are properly followed lies with the Committee of Ministers of the Council of Europe. The same committee of ministers can ask the court to advice on interpretation of the convention or its protocols. A person can only bring a case against a public authority if they can be classed as the "victim" in a specific circumstance. Interpretation and margin of appreciation left to the member states The European Court of Human Rights developed the concept of "margin of appreciation" to take into account the broadly-drawn principles of the Convention and how they are interpreted in different societies. This margin allows a country a degree of defence at the European Court where judges are obliged to take into account the cultural, historic and philosophical differences between Strasbourg and the nation in question since what is, for example, right for Spain may not be right for Germany. In general, the European Court of Human Rights tends to leave a great deal of interpretation and margin of appreciation to the member states and controls their acts mostly only under the aspect whether they appear to be within or beyond the "limit of reasonable interpretation". Way of protection of the rights guaranteed in the Convention and pertinent domestic legal effect The European Convention on Human Rights outlines some of the basic rights and freedoms of Man. This fact entails fundamental question about the domestic legal effect of this Convention. In general, a study of the domestic effect of international agreements such as the European Convention on Human Rights gives rise to many problems. On the one hand, it needs to be determined in which respect and to what extent there is a direct relation between constitutional law and domestic procedures and treaty law. On the other hand, it needs to be determined what consequences the binding character of such an international agreement has for the judicial and other internal organs of a contracting state. The supremacy of an international agreement over domestic legal provisions is certainly self-evident if by this it is meant that a contracting state must conform to its agreements, but what is at issue here is the problem of ascertaining the link between the two systems of law and in particular how the former is accommodated, if at all, by domestic law, taking into consideration the sui generis nature of the Convention. This form of enquiry necessarily touches upon the classical doctrinal controversy between the monist and dualist theories. Both of these theories in effect seek to answer the question: are international law and domestic law two separate legal systems or part of the same system? The monists, such as Kelsen, Scelle, and Lauterpacht consider that international and domestic law constitute one and the same legal order and consequently the obligations imposed by an international agreement such as the European Convention are applicable domestically per se and need no formal reception, i.e. the adoption of international law is automatic and direct. The dualists, of whom Triepel and Anzilotti are the most eminent exponents, consider that international law and domestic law are two completely separate legal systems and that therefore international legal obligations must be transformed by the internally competent organs in order to be applicable domestically. The European Convention on Human Rights has its roots in the philosophical tradition of universal rights which stretches back to the Enlightenment of the 18th century and the French Revolution. But the actual catalyst for creating a model set of rights in the 20th century was the Allies' determination to bring peace to Europe. The first international step towards codifying these rights came when the General Assembly of the then fledgling United Nations adopted the Universal Declaration of Human Rights on 10 December 1948. It was seen as a major success for the international body with some describing the declaration as a "Magna Carta for humanity". Subject of the Convention for the Protection of Human Rights and Fundamental Freedoms The Convention is intended to protect human rights in countries which are democratic by seeking to secure a fair balance between the general interest of society and the protection of the individual's fundamental rights. The rights contained within the Convention can be relied upon by any person, non-Governmental organisation or group of individuals and in some cases by companies and other bodies, but not by governmental organisations, such as local authorities, as the Convention is about protecting fundamental rights and freedoms against the power of the State. Human rights Human rights (natural rights) are rights which some hold to be "inalienable" and belonging to all humans; according to natural law. Such rights are believed, by proponents, to be necessary for freedom and the maintenance of a "reasonable" quality of life. Inalienable rights cannot be bestowed, granted, limited, bartered away, or sold away (e.g.: one cannot sell oneself into slavery). Inalienable rights can only be secured or violated. Human rights can be divided into two categories; positive and negative human rights. Every negative human right can be expressed as a positive human right, but not vice versa. For example, the right of a newborn to a caring parent can only be expressed positively. Universal Declaration of Human Rights In 1948 the United Nations made the above declaration, which was an over-arching set of standards by which Governments, organisations and individuals would measure their behaviour towards each other. This Declaration introduced the notion in the public realm that rights had a moral dimension, independent of and overriding where relevant the legislature or government which granted specific legal rights. The notion was not new, e. g. Thomas Paine had argued in this way in his book The Rights of Man. Other general Declarations have followed, notably the UN Convention on the Rights of the Child, 1989, and recently also the EU Charta of Fundamental Rights. Origins of Rights Positive human rights follow mainly from the Rousseauianian Continental legal tradition, and are things to which every person is entitled and for which every state is obligated. Examples of such rights (not all are universally agreed upon) include: the rights to education, to a livelihood, to private property, freedom of religion, freedom of speech, to carry guns, and legal equality. Positive rights have been codified in the Universal Declaration of Human Rights and in many 20th century constitutions. Negative human rights follow mainly from the Anglo-American legal tradition, and are rights which denote actions that a government should not take. These are codified in the United States Bill of Rights and the English Bill of Rights and include freedoms of speech, religion and assembly. There are a number of theories of where rights come from. The theory espoused by the US Declaration of Independence and ingrained in Anglo-American legal thought is that rights arise from natural law. There are a number of controversies regarding human rights. One is what rights are included as fundamental human rights, or even if there is such a thing. Another controversy is how best to enforce human rights and in particular the relationship between human rights and national sovereignty. One point of view is that human rights are universal and therefore it is proper for any national to attempt to enforce human rights through international courts or domestic law. The opposing view is that having human rights override national sovereignty is a form of imperialism in which powerful countries dictate which rights they consider most important against less powerful countries. Modern Liberal Definition of Human Rights Within modern liberal political cultures, basic human rights are defined as those which can be upheld in a society which follows two basic rules: All individuals should be allowed to act in any way they choose providing that in doing so they do not prohibit other individuals from that same privilege. All individuals must take responsibility for the repercussions of their actions. Unfortunately, extremism of various kinds creates difficulty for this by either not recognising rights in general, or simply overriding some rights to promote its own view. Universalism in rights therefore seems to presuppose liberalism, a tolerant and non-extreme approach. However, this is somewhat paradoxical: how are we to limit the freedom of those who do not recognise other's rights? The great exponent of liberalism, Isaiah Berlin, once said: "Total liberty can be dreadful, total equality can be equally frightful." So-called "Hate Crimes Laws" With the advent of the concept of human rights, various countries have attempted to enact laws against what are called hate crimes. A hate crime is defined as a crime committed with direct influence by the minority status of the victim. A hate crime law would bring greater penalty to the perpetrator based on the hateful intent. Conservatives in the United States often oppose hate crime laws, stating that imposing a greater penalty on an act committed in hate would thus make hating illegal. They feel this to be a direct infringement on First Amendment rights. Liberals often support hate crime laws, stating that by enacting them individuals would face greater discouragement from committing hate crimes. They also point out that all laws are subjective, and that if society can determine that one crime deserves more punishment than another (i.e.: murder vs. involuntary manslaughter,) then it can also determine what motivations deserve more stringent punishments. Types of rights The Convention sets out a number of civil and political rights which each Contracting Party is required to secure to everyone within its jurisdiction. One way these rights can be grouped is by the extent to which they can be qualified or limited. Non-derogable rights - These are rights which a State must guarantee, without exception, at all times, including in time of war or other public emergency. Rights which fall into this category are: Article 3 (prohibition of torture, inhuman or degrading treatment), Article 4 (1) (prohibition of slavery), and Article 7 (no punishment without law). Article 2 (right to life) also falls within this category, except that derogation is permitted in one limited area - deaths resulting from lawful acts of war. Nor is any derogation permitted to Protocol 6 (abolition of the death penalty), although that Protocol does itself contain provision for retention of the death penalty at time of war or imminent threat of war. Other absolute rights - All the non-derogable rights are absolute in that there are never any circumstances which justify the State in some way limiting or curtailing those rights. Some of the other Convention rights contain elements which are also absolute in peace time - for example, Article 5 includes certain rights which must be provided to a person arrested or detained; Article 6 sets out some standards on a right to a fair trial which must be adhered to; and Article 9 provides an unlimited right to freedom of thought, conscience and religion (although there are limitations on how a person's religion or beliefs are manifested). Rights in this category are absolute except that in times of war or other public emergency threatening the life of the nation they may be "derogated from" in limited ways, as provided for by Article 15 of the Convention. It is to be noted that the rights contained in Article 5 (Right to liberty and security) and Article 6 (Right to a fair trial) are expressed in absolute terms, i.e. unlike Articles 8 - 11 they do not contain an express qualification which allows interference with the rights they contain. However, the courts have recognised that Articles 5 and 6 are not absolute in the same way as Article 3. Rights with defined limitations- Other rights such as the right to marry and found a family (Article 12) and parts of Article 5 (right to liberty and security) can be limited in the circumstances defined in the Convention itself. For example, Article 12 is qualified by being subject to national laws governing these rights if, for example, the national law prohibited marriage until a person was 21 years old that would not be a breach of Article 12. Qualified rights- These rights include the right to respect for private and family life (Article 8), the right to freedom of expression (Article 10) and the right to the peaceful enjoyment of property (Article 1 of Protocol 1). Interference with these rights is permissible subject to various qualifications. These include the requirement that any interference must be in accordance with the law, are necessary in a democratic society (i.e. meets a pressing social need and is proportionate) and be related to one or more of the permissible aims as set out in the relevant Article. Substantive Contents of the Convention Chosen Articles of the Convention on Human Rights (contents and comments) Article 3 - Prohibition of Torture and Inhuman Treatment (Excurs) Article 3 states that: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Removal of a person from the member state to a country where they face a real risk of suffering treatment contrary to Article 3 would itself constitute a breach of Article 3. Where the 1951 UN convention requirements are not met in an individual case but where there are substantial grounds for believing that, if removed, the applicant would face a real risk of being subjected to torture or inhuman or degrading treatment or punishment then a grant of humanitarian protection may be appropriate. Strasbourg caselaw on the subject of Article 3 and what constitutes torture or inhuman or degrading treatment or punishment is extensive. However, some general principles can be identified: Torture, for these purposes, constitutes deliberate inhuman treatment, causing very serious and cruel suffering. Acute mental suffering without any physical element can constitute torture. However, in order for ill treatment to constitute torture, the level of suffering has to be significant. It need not be inflicted by public officials (but where it is inflicted by a non-state agent consideration should be given to whether there is sufficiency of protection - see above) and need not be for a 1951 Convention reason. Unlike torture, inhuman or degrading treatment or punishment need not be intended to cause suffering. The mistreatment must, however, attain a minimum level of severity, which will depend on the individual circumstances of the case and will be influenced by factors such as age, sex, vulnerability and health of the victim and duration of the treatment/punishment. The threat of torture, provided that it is sufficiently real and immediate, may generate enough mental suffering to constitute inhuman treatment under some circumstances. Treatment will be degrading if it is capable of grossly humiliating or debasing an individual. Discrimination based on race, sex or other grounds is capable of constituting degrading treatment contrary to Article 3 where the minimum level of severity is attained. However, treatment which does not amount to persecution (save where only for lack of persistence) will often not amount to inhuman and degrading treatment. In the case of Kacaj, the IAT considered that treatment which did not amount to persecution under the 1951 United Nations Convention would rarely be sufficiently severe to pass the threshold for establishing an Article 3 claim. As a result, where a person fails to establish that they are a refugee, they will normally be unable to establish a real risk that they will face treatment contrary to Article 3 (unless their asylum claim failed because their fear of persecution did not arise from one of the five convention reasons). Punishment will be degrading if it attains a particular level of severity and exceeds the usual element of humiliation which follows from the very fact of being convicted or punished by a court. There may also be a breach of Article 3 if returning someone where, due to the individual's serious medical condition and the medical facilities in the country concerned, return would reduce the applicant's life expectancy and subject him or her to acute physical and mental suffering, in circumstances where a state can be regarded as having assumed responsibility for that person's care. Credible medical evidence must be available and, in cases of doubt, a second opinion should be sought from a credible source. Recent decisions of the Court have confirmed that the circumstances in which an individual can resist removal under Article 3 on medical grounds are exceptional. The Strasbourg Court has found that a person who is subject to removal cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the removing State. The Court of Appeal has found that where similar treatment may not be available to a person in their home country because of its cost, removal does not necessarily amount to inhuman or degrading treatment. However to attempt to return someone to a country where there is a complete absence of treatment, facilities or social support which could result in a painful death and cause acute physical and mental suffering would be likely to engage our obligations under Article 3 if we have assumed responsibility for their care. Guidance on inhuman or degrading treatment or punishment: The following is not intended to serve as a comprehensive guide as to what does and does not constitute inhuman or degrading treatment (so treatment in contravention of Article 3). Rather, it should act as a summary of what the courts consider to be the minimum level of severity for treatment to qualify as inhuman or degrading. How to distinguish between torture and inhuman / degrading treatment or punishment: The difference between torture on the one hand and inhuman or degrading treatment or punishment on the other derives principally from a difference in the intensity of suffering inflicted. For example, in the case Ireland vs. the United Kingdom (1978) the court held that interrogation techniques of the UK authorities in respect of terrorist subjects in Northern Ireland (which obliged interrogated persons to stand for a long period on their toes against a wall, covered their heads with black hoods, subjected them to constant intense noise and deprived them of sleep and sufficient food and drink) did involve inhuman treatment but not torture. The court indicated that by the term "torture" a special stigma is attached to "deliberate inhuman treatment causing very serious and cruel suffering" and held that the particular acts complained of "did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood". How to distinguish between harsh treatment and inhuman or degrading treatment: It is often very difficult to establish whether a type of treatment is simply harsh, or is actually inhuman/degrading so as to violate Article 3. There is no absolute standard for the kinds of treatment and punishment prohibited by Article 3. The question whether a particular treatment or punishment is inhuman or degrading must be judged by the circumstances of the case and the prevalent views of the time. Thus, in the Greek case (1969) the Commission considered with respect to the treatment of detainees: "It appears from the testimony of a number of witnesses that a certain roughness of treatment of detainees by both police and military authorities is tolerated by most detainees and even taken for granted... This underlines the fact that the point up to which prisoners and the public may accept physical violence as being neither cruel or excessive varies between different societies and even between different sections of them". As the Court held in the above mentioned case Ireland vs. the United Kingdom: "Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim." The rights in Article 3 are absolute. As a result, the Court held in Bensaid v United Kingdom that there must be a high threshold to be reached before the Article is satisfied, particularly where the facts do not concern the direct responsibility of the contracting state for the infliction of harm. The Strasbourg Court has allowed national authorities a relatively wide margin of appreciation as to the system of sanctions or penalties in respect of criminal conduct. Only under exceptional circumstances may a particular sentence raise an issue under Article 3. The mere fact that an offence is punished more severely in one country than in another does not suffice to establish that the punishment is inhuman or degrading.
Article 8 - Right to respect for private and family life (Excurs) Article 8 (1) states that: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Any interference with the rights set out in Article 8 (1), on the part of the State must therefore be justified under Article 8 (2) as being necessary and proportionate in pursuit of one of the aims set out in Article 8 (2). In a total view, Article 8 provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions. This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. 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. Article 8 claims could raise a number of issues concerning the private and family life of an individual. The right to respect for home and correspondence in Article 8 (1) will rarely arise in the context of immigration claims. The right to respect for private life guarantees the development, without outside interference, of an individual's personality in his relationships with others and includes a person's physical and moral integrity. As the types of Article 8 claims referred to above will be rare in the immigration context, this paragraph is concerned with the type of Article 8 claim that is most common, namely that a person's removal would be an infringement of their right to a family life. In this type of case the allegation will be that the member state will directly breach a person's right to respect for family life if they remove the person in question. (A person may also allege an indirect breach of Article 8 rights, for example, where a homosexual claims to be mistreated on return to their country of origin and this amounts to a breach of their Article 8 rights. These types of indirect claims are dealt with below). Direct Breaches There are five main stages when looking at whether there will be a direct breach of Article 8: 1. Is there any existing family life (look at the relationship and its history etc)? Family life will usually exist between a husband and wife and between a parent and child. Relationships between extended family members, eg. grandparents and grandchildren, may fall within the scope of family life, depending on the strength of the emotional ties. Relationships between adult siblings or adult children and their parents will not normally constitute family life (see below). 2. Will the decision interfere with that family life? (Can the family enjoy family life overseas without undue hardship etc)? Article 8 does not guarantee a person or their family a right to choose to live in the respective member state, if they are able to live with their family elsewhere. As such, removal will only interfere with family life if there are serious obstacles to that family life being pursued elsewhere. This will depend on factors such as whether the family will be able to live together in the receiving state, past residence in the member state (length of stay and whether children of the family were born or have spent most of their lives in the member state will be relevant) and health. 3. If there is interference with family life is it in accordance with the law (i.e. Immigration Rules, published policy/procedures etc)? Interference with family life will be in accordance with the law as long as the act that interferes with the Article 8 right, eg the decision to remove, is allowed by domestic law (eg legislation), the relevant domestic law is accessible and precise and the law has been properly applied on the facts of the case. If there is an allegation that the decision to remove is not in accordance with the law, an article 8 challenge may be run in tandem with a judicial review of the relevant decision or appeal on the basis that, for example, refusal of leave was not in accordance with the Immigration Rules.
4. If there is interference, has it occurred in pursuit of one of the permissible aims set out in Article 8 (2)? Case law has established that immigration control falls within the permissible aims set out in Article 8 (2). The question will therefore be whether the interference is intended to achieve the objective of achieving effective immigration control.
Other Relevant Considerations Important pointers of more general application to the consideration of whether Article 8 would be directly breached by such removal. These expand on some of the points made above and are worthy of consideration in each case: A State has the right to control the entry of non-nationals into its territory, subject always to treaty obligations (i.e. immigration control is a "permissible aim" for the purposes of national interests). Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple. Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not breach Article 8 provided that there are no insurmountable obstacles to the family living together in another country even where this involves a degree of hardship for some or all members of the family. There is more likely to be an interference with Article 8 where there is the expulsion of a member of the family who has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled, but this may be balanced against the permissible aims. Knowledge on the part of one spouse at the time of marriage that rights of residence of the other spouse were precarious will make it less likely that an order excluding the latter spouse violates Article 8. The mere fact that the presence of an individual and his family in this country will not in itself constitute a threat to one of the interests enumerated in Article 8(2) of the Convention does not make a decision to enforce a lawful immigration policy which applies in the individual's case unlawful/disproportionate. Whether interference with family rights is justified in the interests of controlling immigration will depend on the facts of the case and the circumstances prevailing in the state whose actions are impugned. Indirect Breaches Applicants may also claim that the member state is indirectly breaching their Article 8 rights, i.e. that the conduct of the receiving state on their return will breach their Article 8 rights. In the case of an indirect breach of article 8, an applicant would need to show that the treatment will be so serious that it would amount to treatment contrary to article 3 in order to engage the member state's obligations under the ECHR. An allegation of indirect breach in this sense should be distinguished from an allegation that a person enjoys Article 8 family life in the member state even if some of their family is situated abroad (e.g. through contact by telephone here which might not be available in their country of origin). It is possible, in some circumstances, which Article 8 family life could arise in such circumstances. Such a claim is distinct from an indirect breach claim which rests on an allegation that removal would interfere with the right to family life being enjoyed in the state of origin. Protocols of the Convention on Human Rights As of late 2002, thirteen protocols to the Convention have been opened for signature. These can be divided into two main groups: those changing the machinery of the convention, and those adding additional rights to those protected by the convention. The Convention has been amended several times by means of protocols attached thereto. These amendments have only ever affected the Convention machinery, not the substantive content of the rights it protects. Unlike the substantive protocols, these protocols have achieved universal ratification among parties to the original Convention. The protocols themselves required universal ratification to enter into force, in order to maintain the institutional unity of the Convention machinery. These protocols were Protocol 3 (adopted 1963-05-06), Protocol 5 (adopted 1966-01-20), Protocol 8 (adopted 1985-03-19), Protocol 9 (adopted 1990-11-6), Protocol 10 (1992-03-25), and most importantly Protocol 11 (adopted 1994-05-11). Protocol 2 (adopted 1963-05-06), although it does not amend the text of the Convention as such, stipulates that it is to be treated as an integral part of the Convention, and has been consolidated into the Convention by Protocol 11. Protocol 11 established a fundamental change in the machinery of the Convention. As noted above, the Commission was abolished, and individuals were permitted to apply directly to the court. This also necessitated changing the structure of the Court, to support its new, expanded role. Protocol 11 also abolished all the judicial functions of the Committee of Ministers. Protocol 11 also made necessary consequential amendments to those protocols extending its substantive protections. The other protocols (Protocols 1, 4, 6, 7, 12 and 13) add substantive rights to those protected by the Convention. Chosen protocols of the convention (contents and comments) The sixth protocol (excurs) Article 1 - Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. Article 2 - Death penalty in time of war A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law. Protocol 6 requires parties to restrict the application of the death penalty to times of war or national emergency. Relation between article 2 and Protocol 6: Consideration of Article 2 issues: There is limited caselaw on the extent to which the countries obligations might be engaged by the removal of a person to a country where it is alleged that his or her right to life would be threatened. However, a member state would not normally seek to return a person to a country where there are substantial grounds for believing that there is a real risk that he or she would be unlawfully killed either by the State or through the State being unable or unwilling to protect him or her. Applicants who face a serious risk to life or person arising from an unlawful killing may, subject to certain exclusions, be eligible for a grant of Humanitarian Protection. Capital punishment (Article 2 and Protocol 6 Article 1) Whilst Article 2 (1) establishes that everyone's life should be protected by law, it does allow a State to take an individual's life "in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law". However, where an applicant claims to face the death penalty (for example, where the person has been convicted of a capital crime), regard should be had to Protocol 6, Article 1 of the European Convention on Human Rights which states that "The death penalty shall be abolished. No one shall be condemned to such penalty or executed." In the case of an individual claiming, for example in the course of an extradition procedure, to be exposed to the risk of death penalty in another country (as in some countries the death penalty remains in force also today, e.g. in the USA as a country outside of the range of the European Convention on Human Rights), all details of the claim should be fully considered in order to determine whether there are substantial grounds for believing there is a real risk of the applicant being intentionally deprived of his life. Applicants may make claims that they have broken laws or that their activities would one day bring them to the attention of the authorities and could, if returned, lead to the death sentence being invoked. The fact that a person has not yet been sentenced for a crime would not necessarily exclude him or her from the benefit of Protocol 6 Article 1. The important question is whether or not there is evidence to suggest that there is a real risk that the person will be prosecuted, convicted and face the death penalty as a result of a conviction. However, the European Court of Human Rights left also space to some contrary interpretation for example in the famous Soering case which serves as a lead case and therefore guideline in regard to questions of extraditions and death penalty. In relation to the capital punishment, finally the thirteenth Protocol is essential that requires the signatory states of the Convention to abolish the death penalty completely. |
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