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Chapter

David Harris, Michael O’Boyle, Ed Bates, Carla Buckley, and Krešimir Kamber

This chapter discusses the organization and functions of the European Court of Human Rights. Topics covered include the composition of the Court; the election of judges; the roles of the Court Chambers and the Grand Chamber; pilot judgments; reform of the Court; and the future of the Court.

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This chapter examines the provisions of the European Convention on Human Rights (ECHR) on the right to a fair trial in criminal and civil cases, explaining that Article 6 of ECHR holds that the Strasbourg Court has no jurisdiction to reopen national legal proceedings or to substitute its own findings of fact for the conclusions of national courts. The chapter examines the interpretation by the Strasbourg Court of the protections provided by Article 6 in the extensive jurisprudence on this Article and discusses issues concerning the overall requirements of a fair hearing, right of access to court, and the extraterritorial effect of Article 6.

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This chapter sums up the key findings of this study on the Convention on Human Rights (ECHR). It suggests that the principal achievement of the Convention has been the establishment of a formal system of legal protection available to individuals covering a range of civil and political rights which has become the European standard. The chapter highlights the measures taken by the Court to decrease its caseload and increase its efficiency in dealing with applications. It also highlights the contemporary challenges facing the Court, including the relationship between States and the Court, the challenge of the rise of authoritarian governments, and the threats to rights protection from the climate crisis.

Chapter

David Harris, Michael O’Boyle, Ed Bates, and Carla Buckley

The Committee of Ministers of the Council of Europe (Committee of Ministers) is tasked with the execution and enforcement of the judgments of the Court. The process is based essentially on peer pressure and political persuasion exercised within a forum where there is a genuine commitment to effective enforcement of judgments, but also on a commonality of political interest and often a self-interested tolerance of the practical problems associated with execution. This chapter discusses the role of the Committee of Ministers, its procedures and common features, and recent developments in the execution process.

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This chapter examines the proceedings at the Strasbourg Court of the European Court of Human Rights. It explains that the Court’s principal role is to pronounce on applications under the European Convention on Human Rights (ECHR) and that its judgments are legally binding on respondent States and declaratory in nature. The chapter describes the composition and general procedure of the Court, and discusses the admissibility criteria. It outlines the ongoing reform of the institutions of the Court and measures taken to increase the efficiency of the Court and improve the relationship between the States and the Court.

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This chapter examines the protection of the right to education in the European Convention on Human Rights (ECHR), discusses the provisions of Article 2 of the Protocol 1, and highlights the Strasbourg Court’s recognition of the connection of the right to education with the rights protected by Articles 8 to 10 of the Convention. It examines the developments concerning parents’ philosophical convictions and issues concerning religious symbols in the classroom. The chapter examines the use of the margin of appreciation doctrine and proportionality by the Court in order to balance different beliefs in an educational setting within a multicultural society.

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This chapter examines protection of the right to property in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 1 of Protocol 1 and explains that all the provisions of the Convention, including Articles 13 to 18, apply equally to the rights guaranteed by the First Protocol. The chapter also suggests that the Strasbourg Court has come to approach the protection of property rights using much the same methodology as it adopts in relation to complaints of violations of the rights protected by Articles 8 to 11. It examines the application of the right to property to issues such as rent control and restitution, especially focusing on cases arising from the transition of post-Soviet States to democracy, and cases arising from armed conflict.

Chapter

This chapter analyses the limitations found in the second paragraphs of Articles 8 to 11 of the European Convention on Human Rights (ECHR), including the interests of national security, the interests of territorial integrity, the interests of public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation of others, the protection of the rights or freedoms of others, the prevention of the disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary. It discusses the application of the limitations in these Articles in the decisions made by the Strasbourg Court, and considers the required legal basis for interference, the legitimate aims of interference, the margin of appreciation doctrine, and the doctrine of proportionality.

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This chapter examines the provisions of the European Convention on Human Rights on personal liberty and security, and discusses the provisions of Article 5, which aims to guarantee liberty of the person and to provide guarantees against arbitrary arrest or detention. It explains what amounts to a deprivation of liberty and considers the concept of arbitrariness. The chapter also criticises the rather confused and unclear text of Article 5, examining each part of Article 5 and discusses the interpretation of the Court of this Article in its judgments. This includes the Court’s approach to detention on grounds provided for in the Article such as mental health and detention for the purposes of removal from the State.

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This chapter, which examines the provisions of the European Convention on Human Rights against slavery and forced labour, discusses the provisions of Article 4 and the judgments made by the Strasbourg Court in cases such as human trafficking. It considers the developments concerning human trafficking in cases such as Rantsev, which expanded on the positive obligations placed on the State. The chapter examines how the Court has developed the interpretation of slavery in light of international Conventions on human trafficking and the relationship between human trafficking and forced labour. The chapter also examines the interpretation of forced labour, including in relation to employment, prisoners, and military service.

Chapter

This chapter examines the issue of remedy under the provisions of the European Convention on Human Rights (ECHR), addresses the question concerning the existence of an arguable complaint and the effectiveness of the remedy in the national legal order, and considers proceedings in cases involving violations by persons in an official capacity. It also discusses the approach of the Strasbourg Court in the determination of remedies and the increasing use of Article 13 to tackle repetitive cases by requesting respondent States to create remedies so that the complaints can be dealt with at national level.

Chapter

This chapter examines the role of the Council of Europe’s Committee of Ministers in supervising the judgments made by the European Court of Human Rights or the Strasbourg Court, describes the composition and procedure of the Committee of Ministers, and the execution of judgments.

Chapter

Christine Chinkin

This chapter discusses the sources of international human rights law set out in Article 38(1) of the Statute of the International Court of Justice: treaties, custom, general principles of law, and, as subsidiary means for determining the law, judicial decisions and the teachings of publicists. It then considers the role of ‘soft law’ instruments, such as resolutions of the UN General Assembly and the work of human rights expert bodies.

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This chapter examines Article 8 of the European Convention on Human Rights (ECHR) and its protection of private life, the home, and correspondence; analyses the scope of the protection of private life under the ECHR; and provides the Convention definition of private life, home, and correspondence. It also discusses the judgments given by the Strasbourg Court in several relevant cases, including those involving freedom from interference with physical and psychological integrity, freedom to develop one’s identity, issues of health and sexuality, reproductive rights, State surveillance and data collection, the monitoring of employees in the workplace, protection of one’s living environment, and protection of prisoners’ correspondence.

Chapter

This chapter examines the protection of the freedom of expression in the European Convention on Human Rights, discusses the provisions of Article 10, and explains that the majority of cases concerning Article 10 are brought by persons who have received some penalty for defaming or insulting other people. It analyses what constitutes an interference with free expression and considers the limitations on freedom of expression. The chapter also examines the judgments made by the Strasbourg Court on several related cases, including those that involved privacy, incitement to violence and hate speech, obscenity, and blasphemy. It also covers the development of case-law concerning social media and the internet.

Chapter

This chapter, which examines the provisions of the European Convention on Human Rights on fair trial specific to criminal proceedings found in paragraphs (2) and (3) of Article 6, explains the scope of Article 6(2) and (3), and discusses the principle of legality and the judgments made by the Strasbourg Court in several related cases. It also considers the rule against retrospective legislation in Article 7 of the Convention and a number of additional rights connected with the criminal process introduced by Articles 2 to 4 of Protocol 7. The Court considers the relationship between the Court and domestic jurisdictions in relation to Article 6, Article 7, and Articles 2 to 4 of Protocol 7.

Chapter

This chapter examines the provisions for freedom of assembly and association in the European Convention on Human Rights, and discusses the provisions of Article 11, which covers the protection of political parties, other associations, and a bundle of trade union rights. It explains that the case-law under Article 11 can be divided into two categories: the first is concerned with political or democratic rights; and the second relates to the employment-based rights to join, or refuse to join, a trade union. It examines developments concerning the right to protest and trade union rights such as collective bargaining.

Chapter

This chapter examines the protection of the freedom of thought, conscience, and religion in the European Convention on Human Rights. It explains the provisions of Article 9 and the definition that has been given to the concepts of ‘religion’, ‘belief’, and the ‘manifestation of religion or belief’. It analyses the decisions made by the Strasbourg Court in several related cases, including those involving proselytism, the wearing of religious dress and symbols, the manifestation of religion and belief by prisoners, the conscientious objection to military service, immigration issues which touch on the freedom of religion, and the recognition and authorisation of religious organisations.

Chapter

This chapter analyses the interpretation of the European Convention on Human Rights (ECHR). It explains that there are two key themes which have dominated the interpretation of the Convention: the purposive and the evolutive interpretations. The chapter describes the approach of the Strasbourg Court to the interpretation of the ECHR and evaluates the influence of the Vienna Convention. It suggests that the interpretation of the Convention builds on the rules of public international law on the interpretation of treaties and has remained broadly consistent with those principles, and that the role of the Strasbourg Court is casuistic.

Chapter

This chapter examines the protection of the freedom of movement in the European Convention on Human Rights (ECHR), explains the provisions of Protocols 4 and 7, and discusses the prohibition of expulsion of nationals and the right of entry to the territory of the State of nationality. It describes the complaints of violations of the freedom of movement provisions of Protocols 4 and 7, and analyses the Strasbourg Court’s interpretation of these provisions, considering the reasons given for restrictions of movement. The chapter also considers the case-law on the collective expulsion of asylum seekers and migrants who have sought protection in Europe.