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On the Operation of the European Convention on Human Rights

Published online by Cambridge University Press:  22 May 2009

Egon Schwelb
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Extract

The Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), signed in Rome on November 4, 1950 entered into force on September 3, 1953. It provides in Article 19 for the establishment of two organs whose task it is “to ensure the observance of the engagements undertaken” in the Convention by the contracting parties: a European Commission of Human Rights (hereinafter referred to as the Commission) and a European Court of Human Rights (hereinafter referred to as the Court).

Type
Articles
Information
International Organization , Volume 18 , Issue 3 , Summer 1964 , pp. 558 - 585
Copyright
Copyright © The IO Foundation 1964

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References

1 United Nations Treaty Series, 1955 (Vol. 213, No. 2889), pp. 221–261Google Scholar; Council of Europe, “Convention for the Protection of Human Rights and Fundamental Freedoms,” European Treaty Series (hereinafter cited as European Treaty Series) No. 5; European Commission of Human Rights, Documents and Decisions 1955–1956–1957 (being Vol. 1 of the Directorate of Human Rights of the Council of Europe, Yearbook of the European Convention on Human Rights [hereinafter cited as YBEC] [The Hague: Martinus Nijhoff, 1959]), pp. 4–37Google Scholar; Yearbook on Human Rights for 1950 (New York: United Nations, 1952), pp. 420–426Google Scholar; and The American Journal of International Law, Supplement of Documents, 04 1951 (Vol. 45, No. 2), pp. 24–39CrossRefGoogle Scholar.

By the summer of 1963 four volumes of the YBEC had appeared. Volume 1 covers the years 1955, 1956, and 1957; Volume 2, the years 1958 and 1959; Volume 3, the year 1960; and Volume 4, the year 1961. In a series entitled Collection of Decisions of the European Commission of Human Rights, the Secretariat of the Council of Europe also publishes the decisions of the Commission in mimeographed form in advance of their publication in the YBEC. Volume 9 of this series contains decisions rendered in 1962 and Volume 10 contains decisions rendered in 1963.

The literature on the Convention is legion. Bibliographies appear in the various volumes of the YBEC. See also the comprehensive bibliography in Weil, Gordon L., The European Convention on Human Rights (Leyden: A. W. Sythoff, 1963), pp. 248–260Google Scholar. When this article went to press, the book by Robertson, A. H., Human Rights in Europe (Dobbs Ferry, N.Y.: Oceana Publications, Inc., 1963)Google Scholar, was not yet available to the author.

2 YBEC, Vol. 1, p. 58; amendments in YBEC, Vol. 2, p. 62; and consolidated text as amended in YBEC, Vol. 3, p. 4.

3 The protocols to the Convention have appeared in the European Treaty Series as follows: Protocol of 1952 as No. 9; Protocol No. 2 as No. 44; Protocol No. 3 as No. 45; and Protocol No. 4 as No. 46. The Protocol of 1952 can also be found in Yearbook on Human Rights for 1952 (New York: United Nations, 1954), pp. 411–412Google Scholar; and Protocols No. 2, No. 3, and No. 4 in The American Journal of International Law, 01 1964 (Vol. 58, No. 1), pp. 331–336CrossRefGoogle Scholar.

4 Austria, Belgium, Cyprus, Denmark, the Federal Republic of Germany, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, Turkey, and the United Kingdom.

5 Austria, Belgium, Denmark, the Federal Republic of Germany, Iceland, Ireland, Luxembourg, the Netherlands, Norwaÿ, and Sweden.

6 Those listed in footnote 5 with the exception of Norway and Sweden.

7 “Der auf diese Weise abgeschirmte Gerichtshof.” (Mosler, Hermann, “Organisation und Verfahren des europäischen Gerichtshofs für Menschenrechte,” Zeitschrijt für ausländisches öffentliches Recht und Völkcrrecht, 1959–1960 [Vol. 20], p. 421Google Scholar.)

When Protocol No. 2 (see above, p. 559) comes into force, the Court will also be authorized to give, at the request of the Committee of Ministers, advisory opinions on legal questions concerning the interpretation of the Convention and of the protocols thereto. The Court's advisory function is also very narrowly circumscribed.

8 Sec Hurwitz, , The Ombudsman (Copenhagen: Denmark's Parliamentary Commissioner for Civil and Military Administration, 1961)Google Scholar; and Björn Kjellin and others, Wording Paper (for the 1962 United Nations Seminar on Judicial and Other Remedies Against the Abuse of Administrative Authority) (UN Document ST/TAO/HR/15).

9 YBEC, Vol. 1, p. 153.

10 YBEC, Vol. 4, p. 116.

11 Article 24 reads as follows: “Any High Contracting Party may refer to the Commission, through the Secretary-General of the Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party.”

12 The outcome of the Austro-Italian dispute became known in October 1963. The Commission stated in its report that the Italian Courts had not violated Article 6 of the Convention, that the files did not disclose the existence of any discrimination contrary to Article 14, and that it was of the opinion that no breach by Italy of her obligations had occurred. The Committee of Ministers agreed and also took note of the fact that the Commission considered it desirable on humanitarian grounds, among which may be counted the youth of the prisoners, that measures of clemency be taken in their favor. (Council of Europe Press Release [63] 39.)

13 The Convention does not automatically apply to the dependencies of states parties. However, under its “colonial clause” any state may declare “that the Convention shall extend to all or any of the territories for whose international relations it is responsible.” (Article 63.) Under this provision the United Kingdom extended in 1953 the application of the Convention to some 50 territories under its jurisdiction at the time. These included Cyprus and a number of other territories that have since acquired independence.

14 This statement is based on the information on the proceedings in YBEC, Vol. 2, p. 176.

15 Resolution of the Committee of Ministers of April 20, 1959, YBEC, Vol. 2, p. 186.

18 The facts and the other issues involved in the Lawless case are dealt with later in this article (see below, pp. 570–571). For the decision of the Commission declaring the application admissible, sec YBEC, Vol. 2, p. 308. The judgments rendered in the case by the Court were as follows: 1) Preliminary Objections and Questions of Procedure: Judgment of November 14, 1960, YBEC, Vol. 3, p. 492; 2) Question of Procedure: Judgment of April 7, 1961, Verbatim Report of the Hearing Held by the Chamber of the Court at Strasbourg on the 7th, 8th, 10th and nth April 1961 (hereinafter cited as Verbatim Report) (mimeo.); and 3) Merits: Judgment of July 1, 1961, YBEC, Vol. 4, p. 438.

See also, Robertson, A. H., “Lawless v. The Government of Ireland (Second Phase),” British Yearbook of International Law, 1961 (London: Oxford University Press, 1962), Vol. 37, p. 536Google Scholar; and the section on the European Court of Human Rights in Garretson, Albert H., “International Law,“ Annual Survey of American Law, 1961 (Dobbs Ferry, N.Y.: Oceana Publications, Inc., 1962), p. 18.Google Scholar

17 The above is this writer's summary of SirHumphrey's, statement as recorded in Verbatim Report, pp. 47–51Google Scholar.

18 Author's italics.

19 The facts and the other issues involved in the De Becker case are dealt with later in this article (see below, pp. 576–578). For the decision of the Commission declaring the application admissible, see YBEC, Vol. 2, p. 216. The report by the Commission and all other relevant documentation are reproduced in the De Becker Case, E.C.H.R., Series B, 1962; and Judgment of the Court of March 27, 1962, E.C.H.R., Series A, 1962, p. 1.

20 Subtitle of an article by Recaséns-Siches, Luis, “El Art. 30 de la Declaración Universal de Derecho del Hombre,” Revista Juridica de la Universidad de Puerto Rico, 1961 (Vol. 30, Nos. 3–4), p. 205Google Scholar. This article deals with Article 30 of the Universal Declaration of Human Rights, the model for Article 17 of the Convention.

21 Judgment of August 17, 1956, Entscheidungen des Bundesverfassungsgerichts, Vol. 5, pp. 86–393Google Scholar.

22 Ibid., p. 392.

23 he Communist Party of Germany, Max Reimann and Walter Fisch v. The Federal Republic of Germany, Decision of 07 20, 1957, YBEC, Vol. 1, pp. 222 ff.Google Scholar

24 Judgment of 08 17, 1956, Entscheidungen des Bundesverfassungsgerichts, Vol. 5, pp. 135, 137Google Scholar.

25 The decision of the Constitutional Court fills 308 printed pages compared with the two and one-half pages of the decision of the Commission. The Constitutional Court required almost five years (November 1951 to August 1956) while the Commission decided die case in less than six mondis.

26 A. M. Pilling considers the Commission's decision in the German Communist Party case, strangely enough, “a great advance in the area of political liberties and their enforcement on a supra-national level.” (“The European Convention on Human Rights: A Study in Regionalism,” Faculty of Law Review [University of Toronto), 04 1963 [Vol. 21], p. 100)Google Scholar. See, however, Maurice Duverger who, commenting on Article 21(2) of the Basic Law and the decision of the Constitutional Court, has said that “ces dispositions par leur caractère vague et général peuvent etre dangereuses pour I'avenir de la démocratie allemande.” (Droit Constitutionnel et Institutions Politiques [3rd ed.; Paris: Presses Universitaires de France, 1958], p. 283Google Scholar.) Marsh, Norman S. finds it striking “that the Commission, at all events as far as the Communist Party is concerned, ruled out any possible distinction between short-term legal aims and an ultimate objective of establishing an order in which the rights given by die Convention would be denied.” (“Civil Liberties in Europe,“ Law Quarterly Review, 10 1959 [Vol. 75, No. 300], p. 545Google Scholar.) He also states that Article 17 of the Convention is narrower in scope and more precise in meaning than the various clauses of the German Basic Law. In his excellent book Heribert Golsong attempts an ingenious defense of the procedural aspect of the decision. (Das Rechtsschutzsystem der Europä;ischen Menschenrechtskpnvention [Karlsruhe: C. F. Müller, 1958], p. 52Google Scholar.) See also, McWhinney, Edward, “The German Federal Constitutional Court and the Communist Party Decision,” Indiana Law Journal, Spring 1957 (Vol. 32, No. 3), p. 295Google Scholar.

27 See above, footnote 16.

28 Verbatim Report, pp. 55 et seq.

28 YBEC, Vol. 4, p. 452.

30 See above, footnote 19.

31 YBEC, Vol. 2, p. 376.

32 Author's italics.

33 Author's italics.

34 Council of Europe Document DH (56) 11, pp. 14–15; and Weil, , op. cit., p. 52Google Scholar. The United Nations, in drafting the corresponding article of the draft Covenant on Civil and Political Rights (Article 14 as approved by the Third Committee [UN Document A/4299]), has, at least as far as the English text is concerned, avoided the pitfall of which Article 6 of the European Convention is the result. The draft Covenant contrasts “criminal charge” not with “civil rights and obligations” but with determination of “rights and obligations in a suit at law.” The French text of Article 14 of the draft Covenant juxtaposes “contestations stir les droits et obligations de caractère civil” and “accusations en matière pénale.” To examine the legislative history of the two versions and its implications is outside the scope of the present article. See Velu, Jacques, “Le problème de l'application aux jurisdictions administratives des règies de la Convention européenne des droits de l'homme relatives à la publicité des audiences et des jugements,” Revue de droit international et de droit comparé (Brussels), 1961 (Vol. 38), pp. 129–171Google Scholar. Velu's article is of importance not only as far as the publicity of the hearing is concerned but also for the question of the applicability of the general requirement of a fair trial to proceedings of administrative tribunals and authorities.

35 X v. Denmark, Decision of 05 7, 1962, Collection of Decisions of the European Commission of Human Righits, Vol. 9, p. 28Google Scholar.

36 To see the problem involved in this decision of the Commission in proper perspective, reference should be made to Judge SirLauterpacht's, Hersch separate opinion in the Case Concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), I.C.f. Reports 1958, pp. 79–101Google Scholar, and in particular to his statement: “The rights of the parties, especially in an international dispute, ought not to be determined by reference to the controversial mysteries of the distinction between private and public law.” (Ibid., p. 86.)

37 X v. Federal Republic of Germany, YBEC, Vol. 2, p. 254.

38 See above, footnote 19.

39 Loi relative à l'épuration civique of June 30, 1961.

40 De Becker Case, Judgment of March 27, 1962, E.C.H.R., Series A, 1962, p. 23.

41 E.C.H.R., Series B, 1962, p. 199. The Principal Delegate also quoted a passage from the explanatory memorandum accompanying the bill which became the new Belgian Act of 1961. In this the government had explained that the abolition of the disabilities relating to intellectual and artistic media (as distinct from those of a political character) was being proposed “with a view to bringing our legislation into line with the European Convention on Human Rights.” (Ibid., p. 211; and Belgian Senate, Document No. 30 of 1961, p. 2.)

42 X v. Belgium, Decision of 03 27, 1963, Collection of Decisions of the European Commission of Human Rights, Vol. 10, p. 40Google Scholar

43 YBEC, Vol. 3, p. 322.

44 Ibid., p. 372.

45 Ibid., p. 356.

46 YBEC, Vol. 4, p. 186.

47 Council of Europe Document A 78.827 (mimeo.).

48 Council of Europe Document A 78.768 (mimeo.). Volume 10 of the Collection of Decisions of the European Commission of Human Rights contains the texts of decisions on three more cases by which the Commission declared admissible applications relating to the Austrian criminal appeals procedure which was at issue in the four cases dealt with in the text. These three cases were: Glaser v. Austria, p. 64; X v. Austria, p. 71; and Plischke v. Austria, p. 76.

49 Strafprozessnovelle 1962 of July 18, 1962, Bundesgesetzblatt No. 229.

50 Erneuerung von Berufungsverfahren in Strafsachen of 03 27, 1963, Bundesgesetzblatt No. 66Google Scholar.

51 Report of the Commission of March 28, 1963 and Resolution of the Committee of Ministers of September 16, 1963.

52 UN Document A/5411, paragraph 60.

53 Vasak, , “The European Convention of Human Rights Beyond the Frontiers of Europe,” International and Comparative Law Quarterly, 10 1963 (Vol. 12), p. 1212CrossRefGoogle Scholar.

54 Report of the Commission appointed under Article 26 of die Constitution of the International Labor Organization to examine the complaint filed by the government of Ghana concerning die observance by the government of Portugal of the Abolition of Forced Labor Convention, 1957 (No. 105), International Labor Office Official Bulletin, Supplement 11, 04 1962 (Vol. 45, No. 2)Google Scholar; and Report of the Commission appointed under Article 26 of the Constitution of die International Labor Organization to examine the complaint filed by the government of Portugal concerning the observance by the government of Liberia of die Forced Labor Convention, 1930 (No. 29), International Labor Office Official Bulletin, Supplement II, 04 1963 (Vol. 46, No. 2)Google Scholar.

55 Robertson, loc. cit.

56 Mosler, , op. cit., pp. 424 et seq.Google Scholar; and Eissen, Marc-André, “La Cour Européenne des Droits de I'Homme: De la Convention au Reglement,” Annuaire Francais de Droit International, 1959 (Vol. 5), p. 618CrossRefGoogle Scholar.

57 YBEC. Vol. 4, p. 15.

58 “Interpretation of the Treaty of Lausanne (Iraq Boundary),” Publications of the Permanent Court of International Justice, 1925, Series B, No. 12, p. 32Google Scholar. See also the separate opinion of Judge SirLauterpacht, Hersch in Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, Advisory Opinion, I.C.J. Reports 1955, p. 99Google Scholar; and “The Principle nemo judex in re sua,” section 49 in SirLauterpacht, Hersch, The Development of International Law by the International Court (rev. ed.; London: Stevens & Sons Ltd., 1958), pp. 158 et seqGoogle Scholar.

59 Golsong, , op. cit., p. 33Google Scholar.

60 Report of the tenth session of the United Nations Commission on Human Rights (1954) (Economic and Social Council Official Records [18th session], Supplement No. 7, Annex I, pp. 65–72)Google Scholar.

61 General Assembly Official Records … Third Committee (18th session), 1267th to 1269th and 1273rd to 1279th meetings, pp. 289–291, 294–298, 300–302, 327–331, 333–338, 341–345, 347–352. 355–357, and 359Google Scholar; Report of the Third Committee (UN Document A/5655, paragraphs 109 to 123, December 10, 1963).

62 General Assembly Official Records … Third Committee (18th session), 1268th meeting, p. 296Google Scholar.

63 General Assembly Official Records … Third Committee (18th session), 1273rd meeting, pp. 328–329Google Scholar.

64 Before and in 1954.

65 General Assembly Resolution i960 (XVIII), December 12, 1963.