European convention of the humans right
|
1
|
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.
|
2
|
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.
|
2. 1
|
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).
|
2. 2
|
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).
|
2. 3
|
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).
|
3
|
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.
|
4
|
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.
