HUMAN RIGHTS LAW. Ahmed T. Ghandour.

HUMAN RIGHTS IN EUROPE I.

THE CONVENTION ON HUMAN RIGHTS.

II. RIGHTS GUARANTEED.

THE RIGHTS GUARANTEED BY THE PROTOCOLS.  The First Protocol:  ARTICLE 1; Protection of property.  ARTICLE 2; Right to education.  ARTICLE 3;Right to free elections.

 Protocol No. 4  ARTICLE 1; Prohibition of imprisonment for debt.  ARTICLE 2; Freedom of movement.  ARTICLE 3; Prohibition of expulsion of nationals.  ARTICLE 4; Prohibition of collective expulsion of aliens.

 Protocol No. 6  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 No. 7  ARTICLE 2; Right of appeal in criminal matters.  2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal (release).  ARTICLE 3; Compensation for wrongful conviction.  ARTICLE 4; Right not to be tried or punished twice.  ARTICLE 5; Equality between spouses.

 Protocol No. 12  ARTICLE 1; General prohibition of discrimination:  1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.  2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

 Protocol No. 13  to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty in all circumstances.  ARTICLE 1; Abolition of the death penalty:  The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

IMPORTANT TO KNOW !

 The 25 rights & freedoms as defined often based on the Universal declaration on Human Rights; we noticed that set in affirmative order in the first paragraph of the articles and the following paragraph set out the limitations to which that right can be subjected.  Article 15 permits the suspension of some – not all – the rights in the time of war or other emergency threatening the life of the nation, and a notice of such derogation to the Secretary General.  In the year 1961 the Council of Europe issued the European Social Charter.

III. THE SYSTEM OF INTERNATIONAL CONTROL.  The authors of the convention added to the comprehensive rights and freedoms another guaranty, which is the institutional guarantee by creating a Commission on Human Rights and a Court of Human Rights, in addition to the use of the existing bodies the Council of Europe and the Committee of Ministers.

1. THE EUROPEAN COMMISSION OF HUMAN RIGHTS.

 The European Convention on Human Rights originally envisaged two judicial bodies: a court and a commission. Article 19 of the Convention set up the European Commission of Human Rights alongside the European Court of Human Rights.  The Commission’s purposes were to investigate conflicts and to mediate friendly settlements.  Under article 20 of the Convention, the Commission had the same number of members, as there were member states.  Article 23 required the members of the Commission to act in their own capacities, not as representatives of their governments.  The Commission was discontinued and its functions given to the court in 1998 by Protocol 11.

 One of the great innovations of the Convention was article 25, which allowed “any person, non-governmental organization, or group of individuals” to file a complaint with the Commission.  Until the end of World War II, international law did not restrict the way a sovereign state could treat its own citizens. This has changed substantially. “The message of international human rights law is that how a state treats individuals subject to its jurisdiction is... a matter of international concern.  Article 25 required that governments allow their own citizens to file complaints against them in the Council of Europe’s Human Rights Commission.  Each member state had to file a declaration of agreement to article 25 with the Council’s Secretary-General, and the provision did not come into effect until six contracting states agreed to it.  There was great disagreement within the Council over the inclusion of this provision in the Convention.  It took five years for six contracting parties to agree to it, but it finally came into force in 1955.

 Both states and individuals could file applications: inter-state applications were allowed by article 24, which became article 33 under Protocol 11 in 1998; individual applications were allowed by article 25 (now article 34). The inter-state case mechanism has been used only rarely.  Complaints had to meet certain requirements in order to be considered. Article 27 of the original Convention (now article 35) indicates that the following kinds of complaints were inadmissible:

 Anonymous complaints;  Matters that had already been examined by the Commission or the court;  Those previously submitted to another international organization for investigation that contain no new information;  Those that had not exhausted all domestic remedies and had been filed six months after the last decision of the relevant domestic institution; and  Those “incompatible with the... Convention, manifestly ill-founded, or an abuse of the right of petition.”   The jurisprudence on admissibility is still an important shield against inappropriate applications.  Between 1955 and 2000, 180,319 applications were filed, and 6736 (3.7%) were found to be admissible.

 If a settlement was reached in a case, article 30 provided that the Commission would write a report consisting of a summary of the facts and a description of the settlement and send the report to the states involved, the Committee of Ministers, and the Secretary-General of the Council.  The case would then be removed from the list. If no settlement was reached, however, article 31(1) provided that the Commission write a report that included the opinion of the Commission on whether or not the Convention had been violated. The report was sent to the Committee of Ministers and the states involved in the dispute.  If neither party appealed the decision to the European Court of Human Rights within three months, article 32(1) provided that the Committee of Ministers decide whether or not there had been a violation.