European convention of the humans right

European convention of the humans right

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PRESENTATION

European convention of the humans right, convention signed in 1950 and come into effect in 1953 within the Council of Europe.

The European Convention of safeguard of the humans right and of fundamental freedoms constitutes the model of international guarantee of the humans right most sophisticated to the world. It takes as a starting point the the universal Declaration of the humans right adopted by United Nations (UNO) in 1948, but it is adapted to the specificity of the European continent and envisages an original system of legal control of the respect of the humans right.

As of the creation of the Council of Europe, the will of the Member States was to create a "tool" of reference as regards humans right, in order to carry out a narrower union between its members. This Convention was to constitute a common inheritance of ideal and political traditions, the axis around whose should link European, respectful countries of the democracy and humans right. Indeed, today, when the Council of Europe examines the new requests for adhesion, it first of all sticks to check if the applicant country respects a minimum the provisions of the European Convention of the humans right. However, as it was the case in 1996 for Russia, it prefers to accomodate in its centre a country which one can reproach the non-observance of the humans right, to try, thereafter, to make pressure of the interior so that the situation improves. It is required, for example, that the candidate sign convention at the time of his adhesion to the Council of Europe and makes the promise to ratify it as soon as possible.

The European Convention of the humans right recognizes a certain number of rights whose human person is titular. They aim in priority at protecting freedom and dignity from the man. It is what is called classically the civil laws and political; the economic and social rights are recognized and protected by the European social Charter, signed in Turin in 1961.

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RIGHTS PROTECTED BY CONVENTION

Convention protects from three types of rights: intangible rights, conditional rights, and finally of the rights ensuring the rule of the law.

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Intangible rights

The intangible rights are those which aim at protecting the integrity physical and moral from the human person and to which the State cannot carry reached. It acts, initially, of the right to the life (article 2). According to the Court, this right would protect to be alive for it, and not to be it to be born. It thus recognizes the "spiritual" life ("All the human beings [… ] are endowed with reason and conscience", article 1 of the universal Declaration of the humans right), more than the biological life. This distinction is particularly significant to deal with problems such as the abortion, procreation médicalement assisted, etc. It is also about the prohibition of torture and the degrading treatments (article 3) and, finally, of the prohibition of slavery, the constraint and the forced or obligatory labour (article 4).

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Conditional rights

The conditional rights are those to which the States could carry reached, in certain cases laid down in Convention. This category of right is justified for reasons of law and order. It is about the right to freedom and safety (article 5), of the right to the respect of the private and family life, to the respect of its residence and its correspondence (article 8), of the principle of non-discrimination, "founded on the sex, the race, the color, the language, the religion, the opinions political or all other opinions, the national or social origin, the membership of a national minority, fortune, the birth or any other situation" (article 14), freedom of thought, conscience and religion (article 9), freedom of 10), and finally of the right of association and meeting (article 11).

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Rights ensuring the rule of the law

The rights ensuring the rule of the law are the non-retroactivity of the criminal law (article 7)  —this right forms also part of the category of the intangible rights—, and the right to an equitable lawsuit: impartiality of the judge, reasonable duration of the lawsuit, respect of the presumption of innocence and the rights of defense, insurance of a contradictory lawsuit (article 6).

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The APPLICATION OF CONVENTION

Convention is directly applicable in the legal order of the States; it concerns directly the citizens of the States signatories, without preliminary vote of law. The States, which signed Convention, have the legal obligation to respect it. An institutional system is envisaged for this purpose; it aims at being ensured of the effectiveness of the guarantee of respect of the humans right, by in particular envisaging the sanction of a judgement in the event of non-observance. It is different in that from the universal Declaration from the humans right who has only one value moral and political and did not envisage any mechanism of jurisdictional control.

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OPERATION

This institutional system rests on two bodies: European Court of the humans right and the Committee of the ministers.

The European Court of the humans right (CEDH) is the jurisdictional body: it informs the requests, which can be formulated by a State or an individual which estimates that its rights are not respected. 

The Committee of the ministers, composed of the Foreign Ministers of the Member States of the Council of Europe, is the political body: it is responsible for the monitoring of the execution of the stops. The judgments of the Court are obligatory, and have a value higher than the laws. The States are obliged to put their right in conformity with the judgments of the Court.

This institutional framework is the result of a deep revision implemented in 1998. Indeed, with its creation, the mechanism of control was distributed between three bodies, a Commission being charged to operate a filter while coming to a conclusion about the admissibility of the requests. Moreover, the Committee of the ministers had also a judicial office. The purpose of fusion in a single and permanent jurisdiction of the Commission and Court was to cure the risks of clogging vis-a-vis an increasing number of complaints  —due in particular on massive arrival within the Council of Europe of the Central European country and Eastern at the beginning of the years 1990. Moreover, this reform widens the right of individual petition whereas it was before open only against the States having expressly authorized it. 

These evolutions account for the will to better guarantee the protection of the humans right, with the detriment of the need for limiting the attacks to the national sovereignty which a judgment by the Court can constitute. However, any State can, at the moment of the signature of Convention, to express a reservation about a particular provision and to inform the other States that it will not respect it.