Convention Structure

The full Convention is here

The U.K. helped write the Convention in the late 1940s and signed it in 1950.

It has 16 Rights including 3 Protocol Rights agreed in 1952, and the following structural features that operate to different degrees for different rights.

1. Absolute Rights
The Prohibitions on Torture and Degradation (Article 3); on Slavery (Article 4); and on Retroactive Punishment (Article 7) allow no opt-outs or exeptions.

The absolute ban on torture is often blamed for our courts preventing Home Secretaries returning immigrants to their countries of origin if that would place them at risk of capital punishment, torture or conviction by evidence obtained under torture. However this is also the position of the Geneva Convention on Refugees disobeying which would require us to withdraw from the United Nations itself.

2. Qualified rights    ECHR EXCEPTIONS TABLE
The Right to Life (Article 2) is subject to the exception of deaths directly caused by war but excludes civilian collateral deaths. However the state;s right to punish a person by actively taking his life was removed in Convention Protocols 6 (1983) and 13 (2002). Modern contentious issues include avoidable deaths of soldiers.

The Right to Liberty obviously carries exceptions e.g. after trial by a competent court.

The remaining qualified rights are those to Privacy and Family Life; Thought, Conscience and Belief; Freedom of Expression; and Assembly and Association. Any exception to these must be (i) necessary in a democratic society; (ii) have an important aim that is laid down in national law and is carried out compatibly with that aim; and (iii) applied as lightly as achieving its aim will allow: i.e. exceptions must be “proportionate”.  The test for proportionality is that: “the means used to limit the Right must be no more than essential to accomplish the aim”. Thus proportionality ensures more precise limitations of rights than does “the reasonable man” which has been English Common Law’s way of judging state officials’ restriction of rights: see for example Protest: Laporte

The Prohibition on Discrimination (Article 14) works only through the other rights.

 

3. Protocols 1, 6 & 14
The Rights to Education; Peaceful Enjoyment of Property; and to Vote in an Election were added to the Convention in 1952. Prisoners’ Right to Vote gives trouble to the UK where we still operate the medieval practice of civic death. It is the blanket i.e. (disproportionate) nature of this ban that troubles the courts.

Balancing Rights
As above, various rights can be limited in to maintain the rights of other people. The classic example is the limitation of Free Expression in the interests of Privacy and Family Life as in the necessarily famous cases between celebrities and the press: Art. 8 Right to Privacy and Family Life.

The Margin of Appreciation:
The Strasbourg Court has developed this facility for discretion by states to respond to particular issues of national  culture such as religious issues  or national sensitivity such as issues involving finance.

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