The European Convention on Human Rights

Its direct predecessor is the Universal Declaration of Human Rights of 1948. Other notable historical precedents include England’s Magna Carta of 1215, which asserted the right to a fair trial and a just legal system; the Declaration of Independence of the United States of America of 1776; and the French Declaration of the Rights of Man and the Citizen of 1789. While inadequate for today, these represented important stages on the road toward full and equal rights for all human beings.

The European Convention on Human Rights, by its own acknowledgement, represents “the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration”. Contracting States undertake to secure to everyone within their jurisdiction a number of civil and political rights and freedoms set out in the Convention. Subsequent protocols have extended the initial list of rights, and the case-law of the European Court and European Commission of Human Rights have reinforced and developed these rights, demonstrating the dynamic and evolutive nature of the system.

All the Contracting States, with the exception of Ireland and Norway, have incorporated the Convention into their own law, enabling the domestic judiciary to take full account of its provisions when considering a grievance. Once domestic judicial remedies have been exhausted, an individual may still seek redress in Strasbourg for an alleged breach of the Convention by a Contracting State. The Strasbourg machinery is not a substitute for national courts, but is, in a sense, an extension of them.

The agreement of sovereign states to allow a supra-national court to review a judgment of the domestic judiciary, and be bound by its findings, which may implicate the State in changing laws and paying compensation, represented an historic and unprecedented step in international law. It puts into practice the theory of the fundamental nature of human rights, placing rights firmly above the laws and practice of a state. It also signifies their democratic belief that certain fundamental rights and freedoms of the individual should not be subordinated to the power or narrow political convenience of the State.

A Contracting State may also bring a case against another Contracting State in what is known as an interstate case. There have been few of these to date but, where they have occurred, they have concerned allegations of serious violations of human rights.

The Convention provides for a European Court of Human Rights to deal with individuals’ petitions and inter-state cases. The Judges are entirely independent and are elected by the Parliamentary Assembly.

Examples of states taking action as a result of findings under the European Convention on Human Rights

• Austria modified important sections of its code of criminal procedure, as well as its instructions concerning treatment of prisoners in hospitals and the whole system of legal aid fees for lawyers.
• Belgium amended its vagrancy legislation and adopted measures for subsidising French-speaking schools in the Flemish area. Belgium also changed its civil code in order to give equal rights to legitimate and illegitimate children.
• Denmark amended the law on custody of illegitimate children.
• France passed a law relating to the secrecy of telephone communications.
• Germany modified its code of criminal procedure on the length of pre-trial detention and took measures to expedite criminal and civil proceedings. Germany has also legally recognised transsexuals.
• Greece amended the law on provisional detention.
• Italy, in its code of criminal procedure adopted in 1988, included provisions making the presence of defence lawyers obligatory in judicial proceedings - including appeals in the Court of Cassation.
• The Netherlands amended the military criminal code and the law on detention of mental patients.
• Sweden amended the law on compulsory religious instruction.
• Switzerland completely reviewed its judicial organisation and criminal procedure as applied to the federal army, and amended the civil code regarding deprivation of liberty in reformatory centres.
• The United Kingdom outlawed corporal punishment in state schools.
  

Cases will normally be dealt with by "Chambers" of the Court, and only in exceptional cases will the "Grand Chamber" be seized. The right of individual petition is automatic, as is the jurisdiction of the Court in individual and inter-state cases.

The Committee of Ministers supervises the execution of the judgment where a violation has been found, ensuring that the state takes appropriate remedial action, for example by means of new administrative procedures or by legislation.