An Introduction to the EUROPEAN CONVENTION on HUMAN RIGHTS
9th edition
Iain Cameron
Introduction to the European Convention
Human
9th edition Iain Cameron
An
on
Rights
© Författaren och Iustus Förlag AB, Uppsala 2023
Upplaga 9:1
ISBN 978-91-7737-196-0
Produktion: eddy.se ab, Visby 2023
Omslag: John Persson
Förlagets adress: Box 1994, 751 49 Uppsala
Telefon: 018-65 03 30
Webbadress: www.iustus.se, e-post: kundtjanst@iustus.se
Printed by Dimograf, Poland 2023
Preface
This is the ninth edition of this book which has been specially written for the first term course in public law at Uppsala University. It is intended as an introduction to the European Convention for the Protection of Human Rights and Fundamental Freedoms.1 Five years have passed since the eigth edition of the book was published. There have been many new cases from the European Court of Human Rights2 and the Swedish courts interpreting the requirements of the Convention. I have tried to take account of this new case law, to the extent that this is possible in an introduction of this size, up to May 2023.
I would like to acknowledge here the contribution Maja Eriksson made to the first edition of this book. Maja originally produced a manuscript on the background to the Council of Europe and the Commission’s admissibility procedures. The severe restraints on space placed on an introductory work of this nature meant, however, that Maja’s sections had to be extensively rewritten, added to and integrated with my text in order to get them to fit in. Pages 22–23 and 32–36 of the first edition nonetheless built in large part on the information contained in Maja’s original manuscript. Comments made by Maja were also incorporated on pages 30 and 40. In view of the substantial changes I made to the book in the later editions, however, Maja generously considered that it would be more appropriate that I stand as the sole author of the book. Several people assisted me in different ways with the first edition of the book. The late Staffan Rylander encouraged me to write it and taught me a great deal as regards presenting information as simply and clearly as is possible. I owe him much. My father made helpful comments on the language, as did Erlend Stavehaug who assisted me in simplifying
1 1950, ETS No. 5 (hereafter “the ECHR” or “the Convention”).
2 Hereafter “the Court” or “the ECtHR”.
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the English used. Matti Pellonpää and the late Torkel Opsahl were also kind enough to comment on the first edition.
Various people have given helpful comments on later editions. I would particularly like to thank Elisabeth Palm, Matti Pellonpää, Johan Hirschfeldt, Torbjörn Andersson, Håkan Andersson, Thomas Bull and Carl-Fredrik Bergström.
Uppsala and Béziers in June 2023
Iain Cameron
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Preface 5 Table of Cases 11 List of Abbreviations 19 1 Introduction 23
Overview 23
A Few Words About International Law 25
The Nature and Function of International Law 25
The Origins of International Human Rights Law 26
Means of Influencing States to Respect Human Rights 30
The Relationship between National and International Law 32
Treaties 36
Human Rights as Law 37 2 The Origins and Structure of the Convention System 39 2.1 An Overview of the Council of Europe 39 2.2 The Drafting and Structure of the Convention 44 2.3 An Outline of the Old System and How It Worked 45 2.4 Protocols 11 and 14 and the Threat to the Convention System 47 2.5 The Obligation in Article 1 51 3 Composition, Structure and Functions of the Court 58 3.1 Composition and Structure of the Court 58 3.2 Procedure of the Court 60 3.2.1 In General 60 3.2.2 More on Admissibility 65 3.2.3 More on the Competence and Powers of the Court 70 3.3 Inter-State Disputes 72
Table of Contents
1.1
1.2
1.2.1
1.2.2
1.2.3
1.2.4
1.2.5
1.3
3.4 Implementation of the Court’s Judgment 72
3.5 The Role of the Convention in the Protection of Human Rights in Europe 76
3.6 Interpretative Methods Applied by the Court 81
4 The Substantive Rights 85
4.1 Generally 85
4.2 Article 2, Protocols 6 and 13: The Right to Life and the Death Penalty 86
4.3 Article 3: Freedom from Torture, Inhuman or Degrading Treatment 89
4.4 Article 4: Freedom from Slavery, Servitude and Forced Labour 94
4.5 Article 5: The Right to Liberty and Security of Person 96
4.6 Article 6: Right to a Fair Trial 103
4.6.1 Generally 103
4.6.2 Access to Court/Civil Rights and Obligations 105
4.6.3 Criminal Charge 110
4.6.4 Reasonable Time 111
4.6.5 A Tribunal “established by law” and Independent/Impartial Courts 112
4.6.6 Public Hearing 114
4.6.7 Equality of Arms, Illegally Obtained Evidence and Anonymous Witnesses 115
4.7 Article 7: Freedom from Retroactive Criminal Law 117
4.8 Articles 8–11: Generally 120
4.9 Accordance with the Law 122
4.10 Necessary in a Democratic Society: the Margin of Appreciation 123
4.11 Article 8: Right to Respect for Private and Family Life, Home and Correspondence 127
4.11.1 Generally 127
4.11.2 Private Life 129
4.11.3 Family Life 132
4.11.4 Respect for Home and Correspondence 135
4.12 Article 9: Freedom of Thought, Conscience and Religion 138
4.13 Article 10: Freedom of Expression 141
4.14 Article 11: Freedom of Assembly and Association 150
4.15 Article 12: Right to Marry and Found a Family 154
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4.16 Protocol 1, Article 1: Protection of Property 155
4.17 Protocol 1, Article 2: Freedom of Education 160
4.18 Protocol 1, Article 3: Free Elections 163
4.19 Rights under Protocol 4 165
4.20 Rights under Protocol 7 168
5 General Provisions Affecting Convention Rights 173
5.1 Generally 173
5.2 Article 13: Right to an Effective Remedy before a National Authority 173
5.3 Article 14 and Protocol 12: Freedom from Discrimination 176
5.4 Article 15: Suspension of Convention Rights 180
5.5 Article 16: Restrictions on the Political Activities of Aliens 183
5.6 Article 17: Prohibition of Abuse of Rights 183
5.7 Article 18: Prohibition of Abuse of Power 184
5.8 Article 57: Reservations 185
6 The Convention and the EU 187
6.1 Introduction: the Emergence of Human Rights in EU law 187
6.2 The Charter of Fundamental Rights 192
6.3 The Scope of the EUCFR and the Human Rights Problems in the Member States 194
6.4 The Problematic Relationship Between the EUCFR and the Convention 197
6.5 Concluding Remarks 201
7 The Convention and Swedish Law 204
7.1 The Incorporation of the Convention in Swedish Law 204
7.1.1 The Background to the Incorporation of the Convention 204
7.1.2 The Convention and Norm Conflicts 205
7.1.3 Some more on the relationship between the Convention and Chapter 2 of the Instrument of Government 211
7.1.4 Constitutional Review, the Convention and Swedish Membership of the EU 213
7.2 National Remedies for Convention Violations 214
7.2.1 Generally 214
7.2.2 Administrative Remedies and Remedies before the Administrative Courts 215
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7.2.3 Remedies before the General Courts 217
7.2.4 Specifically on Damages 218
Appendix 1: An Overview of the Substantive Rights 221
Appendix 2: Convention for the Protection of Human Rights and Fundamental Freedoms 223
Appendix 3: Ordlista 244
Appendix 4: Research Sources 246
Appendix 5: Select Bibliography 249
Index 257
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1 Introduction
1.1 Overview
It might be appropriate to begin by saying what the book is, and is not. It is not a comprehensive analysis of the Convention. This is now beyond the scope of a book of less than fifteen hundred pages. Nor does the book contain a comprehensive analysis of the Swedish cases and issues which have arisen in relation to the Convention. This book only discusses the large subject of public international law (folkrätt) insofar as this is necessary to understand the Convention and its status under Swedish law. The Convention is a treaty, albeit a rather special one, and so the book begins by explaining briefly what a treaty is and how and why a treaty can bind the Swedish state. These points in turn necessitate a brief explanation of the nature and function of international law, the relationship between international law and national (or “domestic”) law and the subjects of international law. Space constraints have meant that complicated subjects have had to be considerably simplified and summarised. The book then proceeds to examine the origins and structure of the Convention (chapter 2) and the composition and functioning of the Convention organs (chapter 3). The examination of the composition etc. of the Convention organs is kept to the bare minimum in order to leave more space for the main part of the book (chapters 4 and 5) which is devoted to giving an overview of the substantive rights in the Convention, and the limits on them. I have tried to take up a representative sample of substantive issues in these chapters, but I have also tried to note issues of particular importance to Sweden. Chapters 6 and 7 are brief examinations of the role the Convention plays in the law of the European Union (EU) and in Swedish law. The text of the Convention and other relevant information for reference purposes are set out in the appendices to the book. Appendix 4 consists of a guide to sources. The emphasis in modern legal education is upon methodology
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rather than material law. Lawyers must know how to find the law by themselves and they must know how to apply it once they find it. The key to understanding the Convention is the case law of the Court and this book refers continually to this case law. Appendix 4 explains how to go about finding relevant case law and how to research issues relating to the Convention.
The book is written primarily for Swedish readers, but it is written in English rather than Swedish. This is not intended simply to make life more difficult for you! There are a number of reasons for this. First, formally speaking, it is the English (and French) texts of the Convention which apply as law in Sweden, not the Swedish translation. Second, English is one of the two working languages in Strasbourg. The official Convention case reports are only available in English and French and the Swedish foreign office (UD) works directly in English when it prepares cases concerning the Convention. Any thorough analysis of a Convention issue must involve extensive reading in one of these two languages. English is nowadays the most important language in international law matters. Third, more generally, developments in Swedish law as a whole, particularly Swedish membership of the EU, mean that Swedish lawyers must be able to find and use comparative legal material written in foreign languages. Still, it is difficult to study a new subject (law) let alone in an unfamiliar language. The English has been simplified whenever possible and translations of certain technical terms have been provided (see appendices 1 and 3).
I have tried to limit the number of footnotes. This book is intended simply as an introduction and so a balance has to be drawn between the need to keep the book readable and the need to support the views expressed by reference to authorities. It is not intended that first term students should need to read the cases to which I refer. The curious student has, however, something to go on if he or she wishes to research further and/or to begin their own work of analysing an issue from a particular epistemological (theory of knowledge) perspective such as gender or heuristics.
Lastly, a few words on how the book should be read. Strange though it may seem, I advocate that the book should be read from cover to cover, and the chapters in the order they are set out. However, for people who already know which right they want to study, it can also be read as a reference work, concentrating on chapter 4. But context is important,
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and while chapters 1–2 are mainly background, and chapter 3 mainly takes up procedural issues, sections 2.4, 2.5 and 3.5 are essential reading, as are chapters 6 and 7.
1.2 A Few Words About International Law
1.2.1 The Nature and Function of International Law
There are nearly 200 states now in the world community. Each of these states has its own domestic laws which it applies to the legal and natural persons in its jurisdiction (which usually means within its territory). Each state is “sovereign” in this respect, that is, it decides for itself what laws to make and how to apply them. One sovereign state cannot, legally speaking, impose its laws on another. But in dealing with each other, states need laws as much as individuals do. They thus need a stable and predictable framework of rules which regulates how they interact with each other. This body of rules which states make for themselves is called public international law, or international law for short.1
Domestic law is created by the domestic legislature, but there is no international legislature, or world government, which makes laws for states. Instead, states make laws by and for themselves. International law consists of two main systems of rules: customary international law and treaty law. Customary international law consists of two elements: a practice or pattern of behaviour by states and a general acceptance that this practice is authorised or obligatory. States are assumed to have consented to customary international law rules unless the contrary is proved. Treaties are legally binding express agreements between states that are governed by international law. Nowadays treaties are the more important source of international law.
All states need to be able to rely on the fact that the other states will follow the rules. The basic rule of international law is pacta sunt servanda—treaties ought to be obeyed. States have different interests and
1 It is important to distinguish it from private international law (internationell privaträtt) which is a body of rules each state makes for itself laying down when the state’s courts will apply foreign law. Private international law regulates disputes between individuals which have an international dimension (e.g. inheritance of property situated in another country). It operates within a framework of public international law.
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different objectives (political, military, economic) which they wish to achieve in their diplomatic dealings with one another. Powerful states can now and again be tempted to break a particular law on a particular occasion (most spectacularly, the prohibition on the use of force), but no state is so powerful (or wishes) to do without the body of rules as such. All states want to “win” as much as they can in the game of international relations but, equally, all the players have an interest in keeping the game going and ensuring that the rules are followed.2
The functions of international law have altered through the years as a result of the changes that have occurred in the character and size of the international community. Vast improvements have occurred in transport and communications and international trading links and other international contacts have increased correspondingly. States have become economically dependent on each other. To put it simply, they now interact with each other continually and they need a framework of rules which enables these continual interactions to go as smoothly as possible. International law is now no longer merely about ensuring peaceful coexistence (samlevnadsrätt) but of promoting international cooperation in almost every field of human activity (samarbetsrätt).3
1.2.2 The Origins of International Human Rights Law
The subjects of international law have also undergone a change since the beginning of the twentieth century. The number of states has grown, primarily as a result of decolonization. But it is no longer true to say that international law simply governs relations between states and that, correspondingly, only states can have rights and duties under international law. The growing complexity of the international community has led to the creation of permanent international organisations, both regional and universal, where states can discuss matters of common concern and decide common policies. The most important of these universal organisations is the UN which was founded in 1945 but there are hundreds of others. It has been convenient for states to grant many
2 See generally Henkin, 1979 and Reisman, 1981.
3 The subject of globalisation is huge, involving as it does not only greatly expanded legal cooperation, but economic, political, cultural etc. trends. For an introduction, particularly as regards the impact on democracy, see Petersson et al., 2001.
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of these organisations considerable powers and a degree of autonomy in carrying out common policies. Such organisations thus have varying degrees of “international personality”, i.e. they are capable, like states, of acting independently in the international sphere in the same way as corporations under domestic law have separate legal personality and autonomy from their owners.
Individuals were not originally subjects of international law but have become so through the creation of human rights treaties. A common view among international lawyers is that human rights were born as a result of the carnage of World War II. In Nazi occupied Europe, millions of people (in particular Jews) were stripped of all rights under domestic law and murdered. When those responsible were put on trial after the war the defence was raised that these atrocities were legal under the German law at the time and that how a state treated its own citizens was a matter for that state alone. The common view is thus that the Holocaust and the other terrible deeds of the war forced people to realise that states could not be trusted to ensure that their laws protected basic human values.
The UN issued a universal declaration of human rights (UDHR) in 1948.4 This contained a list of individual rights which states were encouraged to respect. The UDHR was a recommendation and not as such legally binding on states.5 The first binding regional treaty on human rights, the ECHR, was signed in 1950. International lawyers tend to see these international instruments on rights as a continuation of the struggle for rights at the national level. Such struggles have existed in every age, but it was first at the end of the eighteenth century that we began to see constitutions not only guaranteeing individuals that they will be left in peace by the state but also political freedoms (voting, freedom of expression etc.) which act as controls on the power of the state.
Both these ideas—that WWII was the direct cause of an international “rights revolution” and the idea that human rights have developed in different stages—have been challenged. The French and American
4 GA Resolution 217(A)III 1948.
5 The Vienna Declaration of the World Conference on Human Rights, 1993, endorsed by the General Assembly in Res. 48/121 (1993) later expressed the view that the UDHR now constitutes “customary international law”.
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declarations of rights in the late eighteenth century were citizen-based rights, not the same thing as the cosmopolitan (universalist) idea behind international human rights. And even though international human rights made an appearance after WWII, it was only in the late 1970’s that they really took off and began to become an important part of international law. There has thus not been a continuous (slow) development, but rather a period of inactivity, followed by a surge in “rights thinking”. It has been argued that this surge came because other “utopian” visions—the nation state, decolonisation, communism—by the 1970’s were losing their appeal.6 It can be linked to the surge in constitutional rights thinking which occurred with democratisation of Latin America and the collapse of the Soviet bloc in the late 1980’s.
Just as the history of human rights is the subject of debate, so too are the philosophical foundations of human rights.7 Few if any intellectuals in secular Western states would accept the idea that universal moral values exist. But if there are no “natural” universal moral values we can discern by the exercise of reason, then the idea of human rights can be attacked as metaphysics, a modern replacement for religion. Human rights on this approach are a creation of particular social, economic and political conditions of the twentieth century, not rights which have always existed.8 Arguably, they are not even a product of rationality, but of a greater capacity relatively well-off humans have developed for sympathizing with others.9 On this approach, the best way to advance the cause of human rights in the world—because the philosophers are in agreement on this at least—is to work towards conditions of improving empathy, of encouraging people to regard the “other” as being as human as oneself.10
Legal theorists have been influenced by these philosophical issues. The school of legal theory called Scandinavian realism tended to be dismissive, or sceptical, of the very idea of a “right” as it could not be
6 Moyn, 2010.
7 For useful brief introductions see Freeman, 1994 and Fagan, 2006.
8 Bobbio, 1996. We have “imagined” them. I should add: there is no guarantee that these conditions will persist in the future.
9 Rorty, 1998. But not all philosophers are prepared to exclude the idea that human rights compliance, both on the individual and group level, can be justified on the level of rationality. See Gewirth, 1982 and Freeman, 1994.
10 Rorty, 1998, p. 11.
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reduced to anything “real” in the physical world.11 At the same time it is apparent that “rights” have key functions in the normative world. My own position is that rights can be institutional facts and are therefore real on that level.12 Money (a promise to pay) is another made-up thing, but people still manage to see it as very “real”. However, even if Scandinavian realism was wrong that rights have no “real” existence, it is still a useful insight that arguing simply from rights tends to be unsatisfactory. A philosophy based only on rights is not enough: as people live together in societies, they must also have duties vis à vis other individuals, and to obey the collective will (the state).13 As rights involve claims to public resources, transparency demands that a “deep” reasoning on rights requires one to identify and analyse the (perhaps competing) social interests lying behind a particular rights claim.14
International lawyers have tended to leave these philosophical and legal theory discussions aside and have contented themselves with saying that if a state has ratified a human rights agreement, then it is bound to comply with it. There are certainly practical arguments for states concerning themselves with how other states respect human rights. The increased interdependence of states and the increased awareness people had of what was going on in other countries means that the effects of major human rights violations cannot be confined to the state perpetrating them. So there is a link between respect for human rights within states and maintaining peace between states—which is the primary function of international law.15
11 See, e.g. Ross, 1951.
12 See, e.g. MacCormick, 2007.
13 See, e.g. the Vavřička and Others case, below, section 4.11.2. One has to be careful with this argument, as it can easily be abused to remove individuals’ human rights in the interests of the ruling élite. The governments which regularly take up “human duties” at the UN tend to be amongst the worst human rights offenders.
14 An independent analysis of these is not always necessary of course: as far as the courts are concerned, the travaux préparatoires to legislation should usually identify the interests involved and the ways in which these are to be weighed.
15 For an example of this link see the Security Council resolution establishing an international criminal court for Rwanda following the massacres committed by the majority Hutu group on the minority Tutu group, SC Res. 955 (8 November 1994). But the Security Council still does not accept that it has a “responsibility to protect” a state’s population from its own government’s committing of, or passivity in the face of, massive human rights violations. See ICISS, 2001.
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