The European system: the Convention and the European Court of Human Rights

1. Background

The Council of Europe was founded in 1949 to promote democracy, the rule of law and human rights in post-war Europe. Its members signed the Convention for the Protection of Human Rights and Fundamental Freedoms at Rome on 4 November 1950; it came into force on 3 September 1953. It was the first treaty to give individuals a right to bring a state before an international court. There are now 46 member states: Russia was expelled from the Council of Europe on 16 March 2022 and ceased to be a party to the Convention on 16 September 2022.

2. The rights and freedoms

Article 1 obliges states to secure the rights to “everyone within their jurisdiction”, not only nationals. Section I (Arts. 2–18) sets out:

• Art. 2 — right to life. Deprivation of life is not a violation when it results from force no more than absolutely necessary in defence from unlawful violence, to effect a lawful arrest or prevent escape, or to quell a riot or insurrection.
• Art. 3 — prohibition of torture and inhuman or degrading treatment or punishment. Absolute, with no exceptions.
• Art. 4 — prohibition of slavery, servitude and forced labour.
• Art. 5 — liberty and security; lawful grounds for detention are listed exhaustively; reasons, prompt production before a judge, habeas corpus, and compensation.
• Art. 6 — fair trial in the determination of civil rights and criminal charges: public hearing within a reasonable time by an independent and impartial tribunal; presumption of innocence; minimum rights of the accused, including free legal assistance when the interests of justice require.
• Art. 7 — no punishment without law.
• Art. 8 — respect for private and family life, home and correspondence.
• Arts. 9, 10, 11 — thought, conscience and religion; expression; peaceful assembly and association including trade unions. Each has a second paragraph permitting restrictions “prescribed by law” and “necessary in a democratic society” for listed aims.
• Art. 12 — right to marry and found a family.
• Art. 13 — an effective remedy before a national authority.
• Art. 14 — non-discrimination in the enjoyment of Convention rights. It is accessory: it applies only together with another right.

Protocols adding rights. Protocol No. 1 (1952): protection of property (Art. 1), education (Art. 2), free elections (Art. 3). Protocol No. 4 (1963): no imprisonment for debt, freedom of movement, no expulsion of nationals, no collective expulsion of aliens. Protocol No. 6 (1983): abolition of the death penalty in peacetime. Protocol No. 7 (1984): appeal in criminal matters, compensation for wrongful conviction, no double jeopardy, equality of spouses. Protocol No. 12 (2000): a general prohibition of discrimination. Protocol No. 13 (2002): abolition of the death penalty in all circumstances.

3. Derogation: Article 15

In time of war or other public emergency threatening the life of the nation, a state may derogate to the extent strictly required by the exigencies of the situation. No derogation is allowed from Article 2 (except for deaths from lawful acts of war), Article 3, Article 4(1) and Article 7. The state must keep the Secretary General of the Council of Europe fully informed. Article 17 forbids using the Convention to destroy the rights it protects, and Article 18 forbids restrictions for purposes other than those prescribed.

4. The machinery

Original system (1953–1998). Three bodies: the European Commission of Human Rights, which received applications, decided admissibility and attempted friendly settlement; the European Court of Human Rights (set up in 1959), to which the Commission or a state could refer a case; and the Committee of Ministers, which decided cases not referred to the Court. The individual right of petition and the Court’s jurisdiction were optional.

Protocol No. 11 (in force 1 November 1998) abolished the Commission and created a single, permanent, full-time Court. The right of individual application and the Court’s jurisdiction became compulsory for every state party.

The Court today (Section II, Arts. 19–51).

• Composition. One judge for each state party (Art. 20), elected by the Parliamentary Assembly of the Council of Europe from three candidates nominated by the state, for a single nine-year term, sitting in an individual capacity.
• Formations. Single judges (clearly inadmissible cases), Committees of three, Chambers of seven, and a Grand Chamber of seventeen.
• Jurisdiction (Art. 32). All matters concerning the interpretation and application of the Convention and Protocols.
• Inter-state cases (Art. 33). Any state party may refer an alleged breach by another, for example Ireland v. United Kingdom (1978).
• Individual applications (Art. 34). Any person, NGO or group of individuals claiming to be a victim of a violation by a state party.
• Admissibility (Art. 35). Domestic remedies must be exhausted; the application must be lodged within four months of the final domestic decision (six months until Protocol No. 15 took effect, from 1 February 2022); it must not be anonymous or substantially the same as a matter already examined; and, after Protocol No. 14, it may be rejected if the applicant has suffered no significant disadvantage.
• Just satisfaction (Art. 41) and referral to the Grand Chamber in serious cases (Art. 43).
• Binding force and execution (Art. 46). States undertake to abide by final judgments. The Committee of Ministers supervises execution. Since Protocol No. 14 (in force 1 June 2010) it may bring infringement proceedings before the Court against a state that refuses to comply.
• Advisory opinions. At the request of the Committee of Ministers (Art. 47); and, under Protocol No. 16 (in force 1 August 2018), at the request of the highest courts of states that have ratified it, on questions of principle in pending cases.

Protocol No. 15 (in force 1 August 2021) wrote the principle of subsidiarity and the margin of appreciation into the Preamble: states have primary responsibility for securing the rights, and some latitude in how they do so.

5. The Lawless case (1961)

Lawless v. Ireland was the first judgment of the European Court (1 July 1961). Gerard Lawless, suspected of membership of the IRA, was detained without trial for about five months in 1957 under the Offences Against the State (Amendment) Act, 1940, following an Irish proclamation of emergency. Ireland had notified a derogation under Article 15.

• The Court held that the detention, not being for the purpose of bringing him before a court, fell outside Article 5(1)(c) and conflicted with Article 5(3).
• But the derogation was valid. The Court defined a public emergency threatening the life of the nation as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed”. The existence of a secret army, its activities outside the State, and the steady increase in terrorist activity justified that finding.
• Detention without trial, with safeguards (a detention commission and release on undertaking to observe the law), was strictly required by the situation. There was no violation.
• The Court also held that Article 17 could not be used to deny Lawless the protection of Articles 5 and 6, because he was not using the Convention to destroy rights.

The importance of the case: it established that the Court will itself review whether an emergency exists and whether the measures are strictly required, instead of leaving it entirely to the state, though with a margin of appreciation.

6. Other leading cases worth a line

• Golder v. UK (1975): Article 6 includes a right of access to a court.
• Tyrer v. UK (1978): judicial birching was degrading; the Convention is “a living instrument” to be interpreted in the light of present-day conditions.
• Handyside v. UK (1976): margin of appreciation in matters of morals; freedom of expression covers ideas that offend, shock or disturb.
• Soering v. UK (1989): extradition to face the death row phenomenon would breach Article 3.
• Dudgeon v. UK (1981): criminalising private homosexual acts violated Article 8.

7. The European Social Charter

Economic and social rights are covered by a separate treaty, the European Social Charter (1961, revised 1996), supervised by the European Committee of Social Rights through state reports and a collective complaints procedure (1995 Protocol) open to trade unions and NGOs.

How this is examined

January 2026: “Discuss the rights and freedoms provided under the European Convention” (10 marks) and “Lawless case” (6 marks). June 2025: “Enumerate rights and freedoms under the European Convention” (10 marks) and “Jurisdiction of European Court” (6 marks). August 2024 set “European Court of Human Rights”. For rights, use section 2 and Article 15. For the Court, use section 4: composition, Articles 32 to 35, Article 46 and the Protocols. For Lawless, facts, the two holdings, the definition of emergency, and why the case matters.