Law of the European Convention on Human Rights
Michael O'Boyle2014, Oxford University Press eBooks
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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
Contents
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. 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 19 ·
6. Reservations 22
7. The Convention in national law 23
8. The Convention and the European Union 27
9. Achievements and prospects 28
Chapter 2 Article 2: The right to life 37
1. The obligation to protect the right to life by law
2. Prohibition of the taking of life 44
3. Conclusion 54
38
Chapter 3 Article 3: Freedom from torture or inhuman or degrading
treatment or punishment 55
1. Introduction 55
2. Torture 59
3. Inhuman treatment 61
4. Inhuman punishment 80
5. Degrading treatment 80
1
x
Contents
6.
7.
Degrading punishment
Conclusion 88
Contents
84
Chapter 4 Article 4: Freedom from slavery, servitude or forced or
compulsory labour 90
1. Freedom from slavery and servitude 90
2. Freedom from forced or compulsory labour 92
3. Permitted work or services 94
Chapter 5 Article 5: The right to liberty and security of the person 97
1. Article 5(1): Generally 97
2. Cases in which detention is permitted 104
3. Article 5(2): Reasons for arrest to be given 128
4. Article 5(3): Pre-trial detention and trial within a reasonable
time 131
5. Article 5(4): Remedy to challenge the legality of detention 145
6. Article 5(5): Right to compensation for illegal detention 158
7. Conclusion 160
Chapter 6 Article 6: The right to a fair trial 163
1. Article 6: Generally 164
2. Field of application 166
3. Article 6(1): Guarantees in criminal and non-criminal cases
4. Article 6(2): The right to be presumed innocent in
criminal cases 241
5. Article 6(3): Further guarantees in criminal cases 249
6. Conclusion 272
196
Chapter 7 Article 7: Freedom from retroactive criminal offences
and punishment 274
1. Ex post facto criminal offences 275
2. Ex post facto criminal penalties 280
3. General principles of law exception 281
Chapter 8 Articles 8-11: General considerations
1. Introduction 283
2. Negative and positive obligations 284
3. Limitations 285
4. Conclusion 301
283
Chapter 9 Article 8: The right to respect for private and family life, home
and correspondence 302
1. Introduction 302
2. The four interests protected by Article 8(1) 305
3. 'Respect' 320
4. Article 8(2): Justification for interference with Article 8(1) rights 335
5. Conclusion 353
Chapter 10 Article 9: Freedom of religion 356
1. What rights are protected? 356
2. Freedom of thought, conscience and religion: the right
to believe 360
3. Manifesting religion or belief in worship, teaching, practice
and observance 363
4. Justifiable interferences 365
5. Conscientious objection 368
6. Conclusion· 370
Chapter 11 Article 10: Freedom of expression 372
1. Introduction 372
2. Freedom of expression: what is protected? 377
3. Interference with freedom of expression 386
4. Conclusion 414
Chapter 12 Article 11: Freedom of assembly and association
1. Freedom of peaceful assembly 418
2. Freedom of association 421
3. Freedom to form and join trade unions 424
4. Restrictions on public service employees 430
5. Conclusion 432
417
Chapter 13 Article 12: The right to marry and to found a family
1. Introduction 435
2. The right to marry 436
3. The right to found a family 440
4. Non-married persons 442
435
Chapter 14 Article 13: The right to an effective national remedy 443
1. A pre-emptive remedy 444
2. An auxiliary remedy 445
3. The requirement of a 'claim' of a Convention violation 446
4. An 'arguable' claim 447
5. A remedy before a national authority 449
6. An effective remedy 450
7. The 'state action' problem 460
8. Conclusion 461
Chapter 15 Article 14: Freedom from discrimination in respect of
protected rights 462
1. The relation between the obligation of non-discrimination
and the enjoyment of the rights and freedoms in
the Convention 464
2. Differential treatment and analogous situations 470
3. The concept of discrimination 475
4. Conclusion 486
xi
xii
Contents
Contents
Chapter 16 Article 15: Derogation in time of war or other
public emergency 489
1. Introduction 489
2. The general pattern of Article 15 490
3. 'In time of war or other public emergency threatening the life of
the nation' 491
4. 'Measures ... to the extent strictly required by the exigencies of
the situation ... ' 496
5. Other international law obligations 502
6. Article 15(2): The non-derogable provisions 503
7. The procedural requirements: Article 15(3) 505
8. The French reservation 506
Chapter 17 Articles 16-18: Other restrictions upon the
rights protected 508
1. Article 16: Restrictions on the political rights of aliens
2. Article 17: Restrictions on activities subversive of
Convention rights 510
3. Article 18: Prohibition of the use of restrictions for an
improper purpose 513
508
Chapter 19 Article 2, First Protocol: The right to education 540
1. Introduction 540
2. The basic obligation 542
3. Respect for parents' religious and philosophical convictions 544
4. Discrimination and minority rights 547
Article 3, First Protocol: The right to free elections
5.
6.
7.
8.
9.
10.
Article 4, Fourth Protocol: Freedom of aliens from
collective expulsion 563
Sixth Protocol: Freedom from the death penalty 564
Article 1, Seventh Protocol: Freedom from expulsion of
individual aliens 565
Article 2, Seventh Protocol: The right to review in
criminal cases 566
Article 3, Seventh Protocol: Right to compensation for
miscarriages of justice 567
Article 4, Seventh Protocol: Ne bis in idem 568
Article 5, Seventh Protocol: Equality of rights of spouses
569
Chapter 22 The European Commission of Human Rights: Practice
and procedure 571
1. Composition, election and independence 571
2. Role of the Commission 573
3. Organisation and functioning of the Commission 575
4. Right of individual petition 580
5. Inter-state applications 585
6. Procedure before the Commission 587
7. Conclusion 603
Chapter 18 Article 1, First Protocol: The right to property 516
1. Introduction 516
2. The structure of Article 1, First Protocol and the inter-relationship
of its provisions 521
3. Article 1/1/1: Interference with the peaceful enjoyment
of possessions 523
4. Article 1/1/2: Deprivation of property 527
5. Article 1/2: Control of use 534
6. Conclusion 538
Chapter 20
4.
550
Chapter 21 Rights protected by the Fourth, Sixth and Seventh Protocols
to the Convention 558
1. Article 1, Fourth Protocol: Freedom from imprisonment for
non-fulfilment of a contractual obligation 558
2. Article 2, Fourth Protocol: Freedom of movement within a state
and freedom to leave its territory 559
3. Article 3, Fourth Protocol: The right of a national not to be
expelled from and to enter a state's territory 562
Chapter 23 Admissibility of applications 604
1. Application of admissibility requirements to inter-state
cases 604
2. Exhaustion of domestic remedies 608
3. The six-month rule 621
4. Other grounds of inadmissibility 624
5. Incompatibility and the competence of the Commission
Chapter 24 The operation of the European Court of
Human Rights 648
1. Composition and independence of the Court 649
2. The referral of cases to the Court and acceptance of
compulsory jurisdiction 652
3. Relinquishment of jurisdiction: chambers, grand chambers
and plenary 654
4. Procedure before the Court 656
5. Jurisdiction of the Court 671
6. Establishing the facts and the burden of proof 678
7. Friendly settlement and discontinuance 680
8. Just satisfaction under Article 50 682
9. Interpretation and revision of a judgment 688
10. Advisory opinions 689
Chapter 25 The role of the Committee of Ministers
1. Decision-making under Article 32 691
691
629
xiii
xiv
2.
3.
Contents
Supervising the execution of the Court's judgments
(Article 54) 700
Conclusion 705
Chapter 26 Reforming the Convention: Eleventh Protocol
1. The background to the Eleventh Protocol 706
2. The operation of the new single Court 708
3. Assessment 711
706
Appendix I European Commission of Human Rights and European Court
of Human Rights members on 31 December 1994 715
Appendix II
Index
719
Table of applications in 1993/94
717
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