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European convention for the Protection of Human Rights and Fundamental Freedoms and protocols to the convention

European Convention for the Protection of Human Rights and Fundamental Freedoms

The Council of Europe drew up the Convention for the Protection of Human Rights and Fundamental Freedoms, more commonly known as the European Convention on Human Rights (ECHR). The ECHR is an international treaty signed on 4 November 1950 in Rome and entered into force on 3 September 1953. The Convention has established certain rights listed in the United Nations Universal Declaration of Human Rights (Declaration). Within the framework of the Convention, a judicial authority was established with the power to sanction countries which do not comply with its provisions.

Slovenia signed the ECHR on 4 May 1994 and ratified it on 28 June 1994. The Slovenian constitutional order follows a theory or approach known as dualism in the relationship between national and international law. Directly used international treaties must first be ratified in Parliament and published in the Official Journal. The Constitution of the Republic of Slovenia in stipulates Article 8 that laws and other regulations must comply with the generally applicable principles of international law and international agreements that bind Slovenia. It is also stipulated that ratified and published international treaties in Slovenia are directly applied.

The ECHR consists of the Preamble and three parts. The Preamble emphasizes the meaning of the Universal Declaration of Human Rights. It is noted that the Declaration seeks to ensure the general and effective recognition and respect for the rights proclaimed therein. In the first part, we find written provisions on rights and fundamental freedoms. The second part covers provisions on the situation and functioning of the ECHR. The last, third part contains the various provisions that are related to the ECHR (such as the conditions for signing and ratification of the ECHR).

The purpose of adopting the ECHR was to ensure that the states shall ensure their citizens that human rights violations and other horrors from the Second World War are not repeated. By ratifying the ECHR, the member states of the Council of Europe committed themselves to respecting the fundamental civil and political rights of everyone under their jurisdiction. The ECHR is a living and evolving instrument. It changes with the interpretation of its provisions by the ECHR and the Protocols to the Convention.

The aim of the ECHR is to provide broader protection and further development of human rights and fundamental freedoms. The ECHR protects, in particular, the right to life, the right to a fair trial in civil and criminal matters, the right to respect for private and family life, freedom of expression, freedom of thought, conscience and religion, the right to an effective remedy, the right to peaceful enjoyment of possessions and the right to vote and be elected. In addition to protecting rights and fundamental freedoms, it also prohibits certain things. In particular, it prohibits torture, inhuman or degrading treatment or punishment, arbitrary and unlawful detention, the expulsion of own nationals or the prohibition of entry of own citizens into the country, the death penalty and the expulsion of aliens and the discrimination in enjoyment of other rights and freedoms protected by the Convention.

The ECHR does not have the same legal status and power in all the member states of the Council of Europe. In each country, it represents a binding domestic law, as the countries have committed themselves to ensure respect for human rights and freedoms included in ECHR on their territory. The differences between countries are reflected in the way of implementing the obligation to respect the rights and freedoms. Likewise, countries may recognize different legal positions of the ECHR. For example, the ECHR in Slovenia is above the laws and under the Constitution, while in Austria it has the power of the Constitution and in Germany the power of a law.

Protocols to the Convention

The Protocol to the Convention is a text which adds one or more of the rights to the Convention or changes some of its provisions. The protocols can be divided into two types. One type includes the Protocols amending the ECHR. To enter into force, they must be adopted by all the member states of the Council of Europe. The second type are the Protocols that complement the ECHR. These Protocols enter into force upon ratification by a number of Member States of the Council of Europe. Protocols which add rights to the Convention are binding only in countries that have signed and ratified them. The provisions are not binding on a country which has merely signed the Protocol. To date, 16 Additional Protocols have been prepared for signature and ratification – Protocol no. 15 will enter into force as soon as it is signed and ratified by all member states of the Council of Europe, Protocol no. 16 came into force on 1 August 2018 when it was signed and ratified by the ten member states of the Council of Europe.

Protocol no. 1

The first Protocol added to the ECHR the following fundamental rights: the right to peaceful enjoyment of property, the right to education and the right to free elections by secret ballot. It entered into force on 18 May 1954. 10 ratifications by the member states of the Council of Europe were required for the entry into force. It has been amended in accordance with the provisions of Protocol No. 11.

Protocol no. 2

The Protocol granted the ECHR the power to give advisory opinions. It entered into force on 21 September 1970 when it was ratified by all member states of the Council of Europe. It was replaced by Protocol no. 11.

Protocol no. 3

The Protocol amended Articles 29, 30 and 34 of the ECHR. It entered into force on 21 September 1970, after ratification of all member states of the Council of Europe. It was replaced by Protocol no. 11.

Protocol no. 4

The Protocol included in the ECHR: the prohibition of imprisonment for debts, the right to freedom of movement and the freedom to choose one’s own residence, the ban on the expulsion of citizens and the ban on the collective expulsion of aliens. The Protocol entered into force on 2 May 1986 when it was ratified by five member states of the Council of Europe. It was amended by Protocol no. 11.

Protocol no. 5

The Protocol amended the Articles 22 and 40 of the ECHR. It took effect on 20 December 1971 when it was ratified by all member states of the Council of Europe. It was replaced by Protocol no. 11.

Protocol no. 6

The Protocol introduced the provision on the abolition of the death penalty in the ECHR. It entered into force on 1 March 1985 when it was ratified by five member states of the Council of Europe. It was amended by Protocol no. 11.

Protocol no. 7

The Protocol has expanded the list of rights protected by the ECHR and its Protocols. The right to appeal in criminal matters, the right to redress in the event of a judicial error, the right not to be tried or punished twice for the same criminal offense, and the right to equality of spouses, have been added. The Protocol entered into force on 1 November 1988 when it was ratified by seven member states of the Council of Europe. It was amended by Protocol no. 11.

Protocol no. 8

The Protocol gave the European Commission of Human Rights the opportunity to set up chambers consisting of at least seven judges to examine an initiative that can be dealt with on the basis of established case-law or in cases of minor issues relating to the interpretation or application of the ECHR. It entered into force on 1 January 1990 when it was ratified by all the member states of the Council of Europe. It was replaced by Protocol no. 11.

Protocol no. 9

In certain cases, the Protocol allowed an applicant the right to submit his/her case directly to the ECHR. It entered into force on 1 October 1994 when it was ratified by ten member states of the Council of Europe. The Protocol was repealed when Protocol No. 11 entered into force.

Protocol no. 10

The Protocol has changed the rule of majority required when the Committee of Ministers votes on whether the ECHR has been violated in cases where the ECHR does not decide on it. The protocol lost its purpose when Protocol No. 11 entered into force.

Protocol no. 11

The Protocol abolished the European Commission on Human Rights which was responsible for the pre-selection of applications. Since the introduction of the Protocol, an individual may submit an application directly to the ECHR. With the entry into force, it replaced the Protocols no. 2, 3, 5, 8, 9 and 10. It entered into force on 1 November 1988 when it was ratified by all member states of the Council of Europe.

Protocol no. 12

The Protocol introduced the provision on the general prohibition of discrimination. It entered into force on 1 April 2010 when it was ratified by ten member states of the Council of Europe.

Protocol no. 13

The protocol introduced the provision on the abolition of the death penalty. The provision applies in all circumstances, including for offenses committed during the war and in times of imminent threat thereafter. It entered into force on 1 July 2003 when it was ratified by ten member states of the Council of Europe.

Protocol no. 14

The Protocol seeks to ensure the long-term effectiveness of the ECHR by optimizing the filtering and processing of applications. It ruled that minor matters were assigned to the new composition of judges. An individual judge can definitively decide the case if the inadmissibility is clear from the outset. The Protocol extended the mandate of the judges to nine years, without the possibility of re-election. It entered into force on 1 June 2010 when it was ratified by all member states of the Council of Europe.

Protocol no. 15

The Protocol modifies the ECHR by adding a reference to the principle of subsidiarity and the doctrine of discretion in the Preamble to the ECHR. It also changes the deadline for submitting the application to the ECHR. Now, the application must be filed within six months of the date on which the final decision was taken under domestic law. Once the Protocol enters into force, the six-month deadline will be shortened to four months. The Protocol will enter into force upon signature and ratification by all member states of the Council of Europe.

Protocol no. 16

The Protocol has enabled the highest courts and tribunals in a State Party to request advice from the ECHR on questions of principle concerning the interpretation or application of the rights and freedoms set out in the ECHR and its Protocols. The Protocol came into force on 1 August 2018 when it was ratified by ten member states of the Council of Europe.

Source: “Slovenia before the European Court of Human Rights,” master thesis, 2015, author: Maja Gogala

2019-03-12T08:03:08+01:00
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