The European human rights system

The six years of war experience with atrocities that took more than 55 million lives, including those killed in the Nazi concentration camps, should fundamentally be both a global and European lesson never to be forgotten. The global response was the establishment of the United Nations (UN) in 1945 which immediately started to work on a “Bill of Rights”. The idea was to encourage the member states to respect and promote fundamental human rights for their residents in order to preserve peace, both in and between countries.

After two years of work, the “Universal Declaration of Human Rights” (UDHR) was adopted. For the first time in history there was a set of universal human rights. However, as a declaration, the UDHR was not legally binding for the states. Even if many had wanted the UN to adopt a legally binding treaty, this turned out to be too big a task for the international community at that time. The cold war had already started and negative sentiments were having a detrimental impact on the relationships between countries.

The Council of Europe and the European Convention on Human Rights

The states in Europe were the first ones to adopt a legally binding human rights treaty. Reflecting their desire to never again experience the atrocities that were committed in the mid-twentieth century, ten of the European states founded the Council of Europe in 1949. The organisation’s aims were to create peace and respect for fundamental human rights and to develop democracy and the rule of law. Today the Council of Europe has 46 member states.

Immediately after its establishment, the Council of Europe started to work on a legally binding human rights treaty. Inspired by the UN’s efforts, it took less than two years before the Convention for the Protection of Human Rights and Fundamental Freedoms was opened for signature in 1950. The treaty came into force in 1953 as the first international legal instrument guaranteeing the protection of human rights. Since its adoption, states wanting to become members of the Council of Europe must first ratify the Convention.

The following civil and political rights are protected:

• Right to life (art 2)
• Prohibition of torture (art 3)
• Prohibition of slavery and forced labour (4)
• Right to liberty and security (5)
• Right to a fair trial (art 6)
• No punishment without law (art 7)
• Right to respect for private and family life (art 8)
• Freedom of thought, conscience and religion (art 9)
• Freedom of expression (art 10)
• Freedom of assembly and association (art 11)
• Right to marry (art 12)
• Right to effective remedy (art 13)
• Prohibition of discrimination (art 14)

The Convention has been amended a number of times and supplemented with many rights in addition to those laid down in the original text. A number of optional protocols have also been adopted. The European Convention of Human Rights has also evolved because of the interpretation of its provisions by the European Court of Human Rights. Through it’s case law, the Court decides how the norms in the European Convention are to be interpreted at any point in time.

The European Court of human rights

Article 19 of the European Convention declares that a European Court of Human Rights is to be established. In 1959, the Court was established as the first ever international human rights court. Its mission is to oversee the implementation of the European Convention of Human Rights in the member states.

The Court is based in the landmark Human Rights Building in Strasbourg, France. It is composed of one judge from each Council of Europe member state. The judges are elected for a term of nine years by the Council of Europe’s parliamentary assembly. The judges are fully independent and do not represent any national interests.

If a person or a group in a member state believes that their human rights have been violated under the Convention, he or she (or the group) may bring the case before the European Court of Human Rights. For the Court to accept the application, the following criteria must be met:

• Individuals complaining of violations of their rights must, as a main rule, first have taken their case through the courts of the country in question, and up to the highest possible level of jurisdiction. They must, in other words, have lost in the Supreme Court.
• The applicant must lodge his or her complaint with the Court within six months after the final verdict in the home country.
• An applicant’s allegations must concern one or more articles in the Convention.
• The applicant must be personally and directly a victim of a violation of the Convention, and must have suffered a significant disadvantage.
• He or she cannot be anonymous

The Court receives an enormous number of applications each year. Tens of thousands of people turn to the Court because they feel their fundamental human rights have been violated. For many, it is their last hope to achieve justice. The vast majority of the applications is however rejected during the admissibility phase because one or several of the above-mentioned criteria have not been satisfied. Only a small proportion of the cases are brought before the Court, which then rules on whether or not there has been a violation of the convention.

The Court’s judgements cannot override national judgements, but are binding on the countries concerned. In the event of a violation being found, the state concerned must endeavour to ensure that no such violations occur again in the future, otherwise the Court may deliver new judgements against them. In some cases the state will have to amend its legislation to bring it into line with the convention. The Court can also order governments to pay financial compensation to victims.

The Council of Europe’s Minister Committee supervises the state's compliance with the judgements delivered against them. The Court has proven to be a productive and influential European instrument. In general, one can say that the states respect the Court´s judgements. But the Court’s success has led to one disadvantage. Its positive reputation has led to many more applications than it has managed to handle. Hopefully, new reforms will make the system more efficient.

Dynamic interpretation and a common European standard

Since it was established in 1959, the Court has completed the examination of hundreds of thousands of applications. More than 20 000 judgements have been given. The judgments have led the member states to amend their legislation and practice in many areas.

Through its case law, the Court decides how the norms in the European Convention of Human Rights are to be interpreted at any point in time. The Court thus extends the rights afforded in the Convention and applies them to situations that were not foreseeable when the Convention was first adopted. This dynamic interpretation results in the protection of new groups or new rights that were not initially covered by the Convention. Psychological torture or homosexuality are examples of matters that were not mentioned when the Convention was adopted, but have gained protection today. Moreover, the adoption of optional protocols extends the protection areas. Among many success stories is the abolition of the death penalty. Since 1985, the abolition of the death penalty has been a requirement for membership in the Council of Europe. Today the Council of Europe's 46 member states form a death-penalty-free zone.

Due to the fact that the judgements represent guidelines for all member states and that the Court interprets the Convention in a way that takes into account societal developments, makes the Convention a powerful instrument that addresses new challenges and strengthens democracy and rule of law in Europe.

Europe and beyond

Europe has the most efficient human rights system in the world, but also in other areas regional systems have been developed. Especially interesting are the systems in America and Africa.

The American Convention on Human Rights came into force in 1978. As of 2020 it is ratified by twenty-five of the thirty-four members in the Organization of American States (OAS), including all Latin American states. The United State of America, Canada and a number of English-speaking Caribbean states has however not ratified the convention.

In 1981 the African Charter on Human and People’s Rights was adopted by the organization for African Unity (precursor for the African Union [AU]). All AU’s member states have ratified the Charter, except South-Sudan. Both the American and the African system, has a court of human rights. Processes to develop regional human rights systems have also been initiated in the Arab world and in the countries belonging to the Association of Southeast Asian Nations (ASEAN).

It can be argued that the historical and social processes that triggered the emergence of human rights began in Europe, but should eventually be spread to the rest of the world. Thus, it could be claimed that Europe did not develop the idea of human rights, on the contrary, human rights developed Europe, just as they continue to develop societies around the world today.

Resources

• ECHR – Film on the European Court of Human Rights (English Version)