Еуропалық адам құқықтары конвенциясы және адам құқықтарын қорғау механизмі

International treaty to protect human rights and fundamental freedoms in Europe

the court which enforces the convention, also referred to as ECHR

The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity. The convention established the European Court of Human Rights (generally referred to by the initials ECtHR). Any person who feels their rights have been violated under the convention by a state party can take a case to the court. Judgments finding violations are binding on the states concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgments, particularly to ensure payments awarded by the court appropriately compensate applicants for the damage they have sustained. The convention has sixteen protocols, which amend the convention framework. The convention has had a significant influence on the law in Council of Europe member countries and is widely considered the most effective international treaty for human rights protection.

The convention is drafted in broad terms, in a similar (albeit more modern) manner to the 1689 Scottish Claim of Right Act 1689, to the 1689 English Bill of Rights, the 1791 U. S. Bill of Rights, the 1789 French Declaration of the Rights of Man and of the Citizen, or the first part of the German Basic Law. Statements of principle are, from a legal point of view, not determinative and require extensive interpretation by courts to bring out meaning in particular factual situations.

As amended by Protocol 11, the convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the court and its rules of operation. Section III contains various concluding provisions. Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high level machinery for the operation of, respectively, the Commission and the court, and Section V contained various concluding provisions. Many of the articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death).

Article 1 simply binds the signatory parties to secure the rights under the other articles of the convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a contracting state's own national territory; the obligation to secure convention rights then also extends to foreign territories, such as occupied land in which the state exercises effective control. In Loizidou v Turkey, the European Court of Human Rights ruled that jurisdiction of member states to the convention extended to areas under that state's effective control as a result of military action.

Article 3 prohibits torture and "inhuman or degrading treatment or punishment". There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention. The court has emphasised the fundamental nature of Article 3 in holding that the prohibition is made in "absolute terms  irrespective of the victim's conduct". The court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state. The first case to examine Article 3 was the Greek case, which set an influential precedent. In Ireland v. United Kingdom (1979–1980) the court ruled that the five techniques developed by the United Kingdom (wall standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink), as used against fourteen detainees in Northern Ireland by the United Kingdom were "inhuman and degrading" and breached the European Convention on Human Rights, but did not amount to "torture". In Aksoy v. Turkey (1997) the court found Turkey guilty of torture in 1996 in the case of a detainee who was suspended by his arms while his hands were tied behind his back. Selmouni v. France (2000) the court has appeared to be more open to finding states guilty of torture ruling that since the convention is a "living instrument", treatment which it had previously characterized as inhuman or degrading treatment might in future be regarded as torture. In 2014, after new information was uncovered that showed the decision to use the five techniques in Northern Ireland in 1971–1972 had been taken by British ministers, the Irish Government asked the European Court of Human Rights to review its judgement. In 2018, by six votes to one, the court declined.

Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept – security of the person has not been subject to separate interpretation by the court. Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on reasonable suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides those arrested with the right to be informed, in a language they understand, of the reasons for the arrest and any charge they face, the right of prompt access to judicial proceedings to determine the legality of the arrest or detention, to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article. Assanidze v. Georgia, App. No. 71503/01 (Eur. Ct. H. R. 8 April 2004)

Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of convention violations that the court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the court has ruled that military judges in Turkish state security courts are incompatible with Article 6. In compliance with this Article, Turkey has now adopted a law abolishing these courts. Another significant set of violations concerns the "confrontation clause" of Article 6 (i. e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses. Steel v. United Kingdom (1998) 28 EHRR 603
Assanidze v. Georgia [2004] ECHR 140
Othman (Abu Qatada) v. United Kingdom (2012) – Abu Qatada could not be deported to Jordan as that would be a violation of Article 6 "given the real risk of the admission of evidence obtained by torture". This was the first time the court ruled that such an expulsion would be a violation of Article 6.

Article 11 protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". Vogt v. Germany (1995)
Yazar, Karatas, Aksoy and Hep v. Turkey (2003) 36 EHRR 59
Bączkowski v. Poland (2005)

Article 12 provides a right for women and men of marriageable age to marry and establish a family. Despite a number of invitations, the court has so far refused to apply the protections of this article to same sex marriage. The court has defended this on the grounds that the article was intended to apply only to different sex marriage, and that a wide margin of appreciation must be granted to parties in this area. In Goodwin v. United Kingdom the court ruled that a law which still classified post operative transsexual people under their pre operative sex violated article 12 as it meant that transsexual people were unable to marry individuals of their post operative opposite sex. This reversed an earlier ruling in Rees v. United Kingdom. This did not, however, alter the Court's understanding that Article 12 protects only different sex couples. The European Court of Human Rights ruled in Schalk and Kopf v. Austria that countries are not required to provide marriage licenses for same sex couples; however, if a country allows same sex couple marriage it must be done under the same conditions that opposite sex couples marriage face, in order to prevent a breach of article 14 – the prohibition of discrimination. Additionally, the court ruled in the 2015 case of Oliari and Others v. Italy that states have a positive obligation to ensure there is a specific legal framework for the recognition and protection of same sex couples.

Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free standing and separately actionable infringement of the convention.

Article 16 allows states to restrict the political activity of foreigners. The court has ruled that European Union member states cannot consider the nationals of other member states to be aliens.

Article 17 provides that no one may use the rights guaranteed by the convention to seek the abolition or limitation of rights guaranteed in the convention. This addresses instances where states seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights (for example where an individual issues a death threat). Communist Party of Germany v. the Federal Republic of Germany (1957), the Commission refused to consider the appeal by the Communist Party of Germany, stating that the communist doctrine advocated by them is incompatible with the convention, citing article 17's limitations on the rights to the extent necessarily to prevent their subversion by adherents of a totalitarian doctrine.

Article 18 provides that any limitations on the rights provided for in the convention may be used only for the purpose for which they are provided. For example, Article 5, which guarantees the right to personal freedom, may be explicitly limited in order to bring a suspect before a judge. To use pre trial detention as a means of intimidation of a person under a false pretext is, therefore, a limitation of right (to freedom) which does not serve an explicitly provided purpose (to be brought before a judge), and is therefore contrary to Article 18.

as of January 2010, fifteen protocols to the convention have been opened for signature. These can be divided into two main groups: those amending the framework of the convention system, and those expanding the rights that can be protected. The former require unanimous ratification by member states before coming into force, while the latter require a certain number of states to sign before coming into force.

This Protocol contains three different rights which the signatories could not agree to place in the convention itself. Monaco and Switzerland have signed but never ratified Protocol 1.

Article 1 ("A1P1") provides that "every natural or legal person is entitled to the peaceful enjoyment of his possessions". The European Court of Human Rights acknowledged a violation of the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights, also, in the uncertainty – for the owner – about the future of the property, and in the absence of an allowance. In the case of Mifsud and others v Malta (38770/17) the Maltese state was found to have violated Article 1 of Protocol No. 1 to the convention. The case involved a plot of land owned by the Mifsud family and their heirs which was expropriated twice (in 1984 and in 2012). The court, in its judgment, stated that "the (Maltese) Constitutional Court had no basis on which to ground its finding. The Court is disconcerted by the circumstances of the present case which led to an expropriation of property being endorsed without anyone being able to assert the reasons behind such an expropriation."

Article 2 provides for the right not to be denied an education and the right for parents to have their children educated in accordance with their religious and other views. It does not however guarantee any particular level of education of any particular quality. Although phrased in the Protocol as a negative right, in Şahin v. Turkey the court ruled that:

Article 3 provides for the right to elections performed by secret ballot, that are also free and that occur at regular intervals. Matthews v. United Kingdom (1999) 28 EHRR 361

Article 1 prohibits the imprisonment of people for inability to fulfil a contract. Article 2 provides for a right to freely move within a country once lawfully there and for a right to leave any country. Article 3 prohibits the expulsion of nationals and provides for the right of an individual to enter a country of their nationality. Article 4 prohibits the collective expulsion of foreigners. Turkey and the United Kingdom have signed but never ratified Protocol 4. Greece and Switzerland have neither signed nor ratified this protocol. The United Kingdom's failure to ratify this protocol is due to concerns over the interaction of Article 2 and Article 3 with British nationality law. Specifically, several classes of "British national" (such as British National (Overseas)) do not have the right of abode in the United Kingdom and are subject to immigration control there. In 2009, the UK government stated that it had no plans to ratify Protocol 4 because of concerns that those articles could be taken as conferring that right.

Requires parties to restrict the application of the death penalty except for "acts committed in time of war" or of "imminent threat of war". Every Council of Europe member state has signed and ratified Protocol 6.

Article 1 provides for a right to fair procedures for lawfully resident foreigners facing expulsion. Article 2 provides for the right to appeal in criminal matters. Article 3 provides for compensation for the victims of miscarriages of justice. Article 4 prohibits the re trial of anyone who has already been finally acquitted or convicted of a particular offence (double jeopardy). Article 5 provides for equality between spouses. Despite having signed the protocol more than thirty years ago Germany and the Netherlands have never ratified it. Turkey, which signed the protocol in 1985, ratified it in 2016, becoming the latest member state to do so. The United Kingdom has neither signed nor ratified the protocol.

Protocol 12 applies the current expansive and indefinite grounds of prohibited discrimination in Article 14 to the exercise of any legal right and to the actions (including the obligations) of public authorities. The Protocol entered into force on 1 April 2005 and has (as of March 2018) been ratified by 20 member states. Several member states—Bulgaria, Denmark, France, Lithuania, Monaco, Poland, Sweden, Switzerland, and the United Kingdom—have not signed the protocol. The United Kingdom government has declined to sign Protocol 12 on the basis that they believe the wording of protocol is too wide and would result in a flood of new cases testing the extent of the new provision. They believe that the phrase "rights set forth by law" might include international conventions to which the UK is not a party, and would result in incorporation of these instruments by stealth. The first judgment that found a violation of Protocol No. 12, Sejdić and Finci v. Bosnia and Herzegovina, was delivered in 2009.

Protocol 13 provides for the total abolition of the death penalty. Currently all Council of Europe member states but one have ratified Protocol 13. Azerbaijan has signed but not ratified the protocol. It established a fundamental change in the machinery of the convention. It abolished the Commission, allowing individuals to apply directly to the court, which was given compulsory jurisdiction and altered the latter's structure. Previously states could ratify the convention without accepting the jurisdiction of the Court of Human Rights. The protocol also abolished the judicial functions of the Committee of Ministers.

Protocol 14 follows on from Protocol 11 in proposing to further improve the efficiency of the court. It seeks to "filter" out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member state. Furthermore, a case will not be considered admissible where an applicant has not suffered a "significant disadvantage". This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject matter of the application had already been considered by a national court. A new mechanism was introduced by Protocol 14 to assist enforcement of judgements by the Committee of Ministers. The committee can ask the court for an interpretation of a judgement and can even bring a member state before the court for non compliance of a previous judgement against that state. Protocol 14 also allows for European Union accession to the convention. The protocol has been ratified by every Council of Europe member state, Russia being last in February 2010. It entered into force on 1 June 2010. A provisional Protocol 14bis had been opened for signature in 2009. Pending the ratification of Protocol 14 itself, 14bis was devised to allow the court to implement revised procedures in respect of the states which have ratified it. It allowed single judges to reject manifestly inadmissible applications made against the states that have ratified the protocol. It also extended the competence of three judge chambers to declare applications made against those states admissible and to decide on their merits where there already is a well established case law of the court. Now that all Council of Europe member states have ratified Protocol 14, Protocol 14bis has lost its raison d'être and according to its own terms ceased to have any effect when Protocol 14 entered into force on 1 June 2010.