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EUROPEAN CONVENTION on HUMAN RIGHTS This book explains the origins, structure and functioning of the European Convention on Human Rights, and its position in the overall system of protection of human rights in Europe. It discusses and analyses the composition, functions and procedure of the Court of Human Rights. It clarifies the scope of each of the rights and freedoms laid down by the Convention by reference to the case law of the Court. It also explains the status and impact of the Convention in Swedish law and in the law of the European Union. It provides a detailed guide to research sources and methodology for those wishing to investigate human rights issues under the Convention in more detail. The book is written primarily for students of public law, international law and political science, but it can also be of interest to practising lawyers and others who wish a clear and concise introduction to the Convention. Iain Cameron is Professor in International Law at Uppsala University.

Iain Cameron An Introduction to the EUROPEAN CONVENTION on HUMAN RIGHTS

An Introduction to the

EUROPEAN CONVENTION on HUMAN RIGHTS 8th edition

Iain Cameron

ISBN 978-91-7737-001-7

An Introduction to the

European Convention on

Human Rights 8th edition

Iain Cameron

© Författaren och Iustus Förlag AB, Uppsala 2018 Upplaga 8:1 ISBN 978-91-7737-001-7 Produktion: eddy.se ab, Visby 2018 Omslag: John Persson Förlagets adress: Box 1994, 751 49 Uppsala Tfn: 018-65 03 30 Webbadress: www.iustus.se, e-post: kundtjanst@iustus.se Printed by Eurographic Group, Denmark 2018

Table of Contents Preface 5 Table of Cases 11 List of Abbreviations 19 1 Introduction 23 1.1 Overview 23 1.2 A Few Words About International Law 25 1.2.1 The Nature and Function of International Law 25 1.2.2 The Origins of International Human Rights Law 26 1.2.3 Means of Influencing States to Respect Human Rights 30 1.2.4 The Relationship between National and International Law 32 1.2.5 Treaties 36 1.3 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 57 3.1 Composition and Structure of the Court 57 3.2 Procedure of the Court 59 3.2.1 In General 59 3.2.2 More on Admissibility 64 3.2.3 More on the Competence and Powers of the Court 69 3.3 Inter-State Disputes 71

3.4 Implementation of the Court’s Judgment 71 3.5 The Role of the Convention in the Protection of Human Rights in Europe 75 3.6 Interpretative Methods Applied by the Court 80 4 The Substantive Rights 83 4.1 Generally 83 4.2 Article 2, Protocols 6 and 13: The Right to Life and the Death Penalty 84 4.3 Article 3: Freedom from Torture, Inhuman or Degrading Treatment 87 4.4 Article 4: Freedom from Slavery, Servitude and Forced Labour 91 4.5 Article 5: The Right to Liberty and Security of Person 93 4.6 Article 6: Right to a Fair Trial 100 4.6.1 Generally 100 4.6.2 Access to Court/Civil Rights and Obligations 101 4.6.3 Criminal Charge 106 4.6.4 Reasonable Time 108 4.6.5 Independent/Impartial Courts 108 4.6.6 Public Hearing 110 4.6.7 Equality of Arms, Illegally Obtained Evidence and Anonymous Witnesses 111 4.7 Article 7: Freedom from Retroactive Criminal Law 112 4.8 Articles 8–11: Generally 115 4.9 Accordance with the Law 117 4.10 Necessary in a Democratic Society: the Margin of Appreciation 118 4.11 Article 8: Right to Respect for Private and Family Life, Home and Correspondence 122 4.11.1 Generally 122 4.11.2 Private Life 123 4.11.3 Family Life 126 4.11.4 Respect for Home and Correspondence 129 4.12 Article 9: Freedom of Thought, Conscience and Religion 131 4.13 Article 10: Freedom of Expression 135 4.14 Article 11: Freedom of Assembly and Association 143 4.15 Article 12: Right to Marry and Found a Family 147

4.16 Protocol 1, Article 1: Protection of Property 148 4.17 Protocol 1, Article 2: Freedom of Education 153 4.18 Protocol 1, Article 3: Free Elections 155 4.19 Rights under Protocol 4 157 4.20 Rights under Protocol 7 159 5 General Provisions Affecting Convention Rights 165 5.1 Generally 165 5.2 Article 13: Right to an Effective Remedy before a National Authority 165 5.3 Article 14 and Protocol 12: Freedom from Discrimination 168 5.4 Article 15: Suspension of Convention Rights 172 5.5 Article 16: Restrictions on the Political Activities of Aliens 175 5.6 Article 17: Prohibition of Abuse of Rights 175 5.7 Article 18: Prohibition of Abuse of Power 176 5.8 Article 57: Reservations 176 6 The Convention and the EU 178 6.1 Introduction: The Emergence of Human Rights in EU law 178 6.2 The Charter of Fundamental Rights 183 6.3 The Scope of the EUCFR and the Human Rights Problems in the Member States 185 6.4 The Problematic Relationship Between the EUCFR and the Convention 188 6.5 Concluding Remarks 192 7 The Convention and Swedish Law 195 7.1 The Incorporation of the Convention in Swedish Law 195 7.1.1 The Background to the Incorporation of the Convention 195 7.1.2 The Convention and Norm Conflicts 196 7.1.3 Some more on the relationship between the Convention and Chapter 2 of the Instrument of Government 202 7.1.4 Constitutional Review, the Convention and Swedish Membership of the EU 204 7.2 National Remedies for Convention Violations 205 7.2.1 Generally 205 7.2.2 Administrative Remedies and Remedies before the Administrative Courts 206

7.2.3 Remedies before the General Courts 208 7.2.4 Specifically on Damages 209 Appendix 1: An Overview of the Substantive Rights 213 Appendix 2: Convention for the Protection of Human Rights and Fundamental Freedoms 215 Appendix 3: Ordlista 237 Appendix 4: Research Sources 239 Appendix 5: Select Bibliography 242 Index 249

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 23

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, 24

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 framework or body of rules which regulates and controls 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 In principle, the functions served by public international law in the world community are the same as those served by domestic law within states, although the means of creation of the law are different. Whereas domestic law is created by the domestic legislature, 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 deemed 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. 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. It operates within a framework of public international law. 1

Iain Cameron An Introduction to the EUROPEAN CONVENTION on HUMAN RIGHTS

An Introduction to the

EUROPEAN CONVENTION on HUMAN RIGHTS 8th edition

Iain Cameron

ISBN 978-91-7737-001-7