Law of the European Convention on Human Rights

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1 Law of the European Convention on Human Rights DJ Harris LLM, PhD (London) Professor of Public International Law, University of Nottingham M O'Boyle LLB (Belt), LLM (Harvard) Barrister-at-Law (Inn of Court of Northern Ireland), Senior Legal Officer at the European Court of Human Rights C Warbrick MA, LLB (Cantab), LLM (Michigan) Senior Lecturer in Law, University of Durham Butterworths London, Dublin, Edinburgh 1995

2 Preface v Note on the citation of Strasbourg cases xv List of abbreviations xvii Table of statutes xxi Table of European legislation and internationalfun conventions xxiii List of European Court of Human Rights cases xxxi Alphabetical list of European Commission of Human Rights cases xli Numerical list of European Commission of Human Rights cases li List of other cases!xi Chapter 1 The European Convention on Human Rights in context 1 1. Background 1 2. The substantive guarantee 3 3. The Strasbourg enforcement machinery 5 4. The interpretation of the Convention 5 5. Negative and positive obligations and drittwirkung Reservations The Convention in national law The Convention and the European Union Achievements and prospects 28 Chapter 2 Article 2: The right to life The obligation to protect the right to life by law Prohibition of the taking of life Conclusion 54 Chapter 3 Article 3: Freedom from torture or inhuman or degrading treatment or punishment Introduction Torture Inhuman treatment Inhuman punishment Degrading treatment 80

3 x 6. Degrading punishment Conclusion 88 Chapter 4 Article 4: Freedom from slavery, servitude or forced or compulsory labour Freedom from slavery and servitude Freedom from forced or compulsory labour Permitted work or services 94 Chapter 5 Article 5: The right to liberty and security of the person 1. Article 5(1): Generally Cases in which detention is permitted Article 5(2): Reasons for arrest to be given Article 5(3): Pre-trial detention and trial within a reasonable time Article 5(4): Remedy to challenge the legality of detention Article 5(5): Right to compensation for illegal detention Conclusion 160 Chapter 6 Article 6: The right to a fair trial Article 6: Generally Field of application Article 6(1): Guarantees in criminal and non-criminal cases Article 6(2): The right to be presumed innocent in criminal cases Article 6(3): Further guarantees in criminal cases Conclusion 272 Chapter 7 Article 7: Freedom from retroactive criminal offences and punishment Ex post facto criminal offences Ex post facto criminal penalties General principles of law exception 281 Chapter 8 Articles 8-11: General considerations Introduction Negative and positive obligations Limitations Conclusion 301 Chapter 9 Article 8: The right to respect for private and family life, home and correspondence Introduction The four interests protected by Article 8(1) 'Respect' Article 8(2): Justification for interference with Article 8(1) rights Conclusion 353 Chapter 10 Article 9: Freedom of religion What rights are protected? Freedom of thought, conscience and religion: the right to believe 360 Manifesting religion or belief in worship, teaching, practice and observance Justifiable interferences Conscientious objection Conclusion 370 Chapter 11 Article 10: Freedom of expression Introduction Freedom of expression: what is protected? Interference with freedom of expression Conclusion 414 Chapter 12 Article 11: Freedom of assembly and association Freedom of peaceful assembly Freedom of association Freedom to form and join trade unions Restrictions on public service employees Conclusion 432 Chapter 13 Article 12: The right to marry and to found a family Introduction The right to marry The right to found a family Non-married persons 442 Chapter 14 Article 13: The right to an effective national remedy A pre-emptive remedy An auxiliary remedy The requirement of a 'claim' of a Convention violation An 'arguable' claim A remedy before a national authority An effective remedy The 'state action' problem Conclusion 461 Chapter 15 Article 14: Freedom from discrimination in respect of protected rights The relation between the obligation of non-discrimination and the enjoyment of the rights and freedoms in the Convention Differential treatment and analogous situations The concept of discrimination Conclusion 486 xi

4 xii Chapter 16 Article 15: Derogation in time of war or other public emergency Introduction The general pattern of Article 'In time of war or other public emergency threatening the life of the nation' 'Measures... to the extent strictly required by the exigencies of the situation...' Other international law obligations Article 15(2): The non-derogable provisions The procedural requirements: Article 15(3) The French reservation 506 Chapter 17 Articles 16-18: Other restrictions upon the rights protected Article 16: Restrictions on the political rights of aliens Article 17: Restrictions on activities subversive of Convention rights Article 18: Prohibition of the use of restrictions for an improper purpose 513 Chapter 18 Article 1, First Protocol: The right to property Introduction The structure of Article 1, First Protocol and the inter-relationship of its provisions Article 1/1/1: Interference with the peaceful enjoyment of possessions Article 1/1/2: Deprivation of property Article 1/2: Control of use Conclusion 538 Chapter 19 Article 2, First Protocol: The right to education Introduction The basic obligation Respect for parents' religious and philosophical convictions Discrimination and minority rights 547 Chapter 20 Article 3, First Protocol: The right to free elections 550 Chapter 21 Rights protected by the Fourth, Sixth and Seventh Protocols to the Convention Article 1, Fourth Protocol: Freedom from imprisonment for non-fulfilment of a contractual obligation Article 2, Fourth Protocol: Freedom of movement within a state and freedom to leave its territory Article 3, Fourth Protocol: The right of a national not to be expelled from and to enter a state's territory Article 4, Fourth Protocol: Freedom of aliens from collective expulsion Sixth Protocol: Freedom from the death penalty Article 1, Seventh Protocol: Freedom from expulsion of individual aliens Article 2, Seventh Protocol: The right to review in criminal cases Article 3, Seventh Protocol: Right to compensation for miscarriages of justice Article 4, Seventh Protocol: Ne bis in idem Article 5, Seventh Protocol: Equality of rights of spouses 569 Chapter 22 The European Commission of Human Rights: Practice and procedure Composition, election and independence Role of the Commission Organisation and functioning of the Commission Right of individual petition Inter-state applications Procedure before the Commission Conclusion 603 Chapter 23 Admissibility of applications Application of admissibility requirements to inter-state cases Exhaustion of domestic remedies The six-month rule Other grounds of inadmissibility Incompatibility and the competence of the Commission 629 Chapter 24 The operation of the European Court of Human Rights Composition and independence of the Court The referral of cases to the Court and acceptance of compulsory jurisdiction Relinquishment of jurisdiction: chambers, grand chambers and plenary Procedure before the Court Jurisdiction of the Court Establishing the facts and the burden of proof Friendly settlement and discontinuance Just satisfaction under Article Interpretation and revision of a judgment Advisory opinions 689 Chapter 25 The role of the Committee of Ministers Decision-making under Article xiii

5 xiv 2. Supervising the execution of the Court's judgments (Article 54) Conclusion 705 Chapter 26 Reforming the Convention: Eleventh Protocol The background to the Eleventh Protocol The operation of the new single Court Assessment 711 Appendix I European Commission of Human Rights and European Court of Human Rights members on 31 December Appendix II Table of applications in 1993/ Index 719

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