International Human Rights

1. International HumanRights 5.4.2011

2. GeneralIssues • Nature ofprotectedrights • Interpretation • Derogations • Reservations • Non-discrimination

3. Nature ofprotectedrights • Absoluterights: Article 3: Saadi v. Italy, Nr. 37201/06, 28/02/2008 A. and Others v. United Kingdom, No. 3455/05 GC 19/02/2009 • Rightswhichmaybesubjecttolimitations:  prescribedby the law  pursuinglegitimateaims  proportionate(“marginofappreciation”) McCann v. UK, 5.10. 1995; Giuliani and Gaggio v. Italy, 23458/02, GC 24/03/2011

4. A. and Others v. United Kingdom 126.  The Court is acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence. This makes it all the more important to stress that Article 3 enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 notwithstanding the existence of a public emergency threatening the life of the nation. Even in the most difficult of circumstances, such as the fight against terrorism, and irrespective of the conduct of the person concerned, the Convention prohibits in absolute terms torture and inhuman or degrading treatment and punishment (...).

5. RightssubjecttolimitationsGiuliani and Gaggio v. Italy 174.  The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention, one which, in peace time, admits of no derogation under Article 15. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe (...).

6. Giuliani and Gaggio 176.  The use of the term “absolutely necessary” indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2. Furthermore, in keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (...)

7. InterpretationLoizidou v. Turkey (preliminaryobjections)(no. 15318/89) 23 March 1995, para. 73 “the Court will seek to ascertain the ordinary meaning to be given to the terms of these provisions in their context and in the light of their object and purpose (see, inter alia, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 24, para. 51, and Article 31 para. 1 of the Vienna Convention of 23 May 1969 on the Law of Treaties). It shall also take into account, together with the context, "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation" (see Article 31 para. 3 (b) of the above-mentioned Vienna Convention)”.

8. Behrami and Saramati (nos 71412/01  and 78166/01), GC 2 May 2007 122.  (…) the Court hasborne in mind thatitisnotitsroletoseektodefineauthoritatively the meaningofprovisionsof the UN Charter and otherinternationalinstruments: itmustneverthelessexaminewhethertherewas a plausiblebasis in suchinstrumentsfor the mattersimpugnedbeforeit (…). Italsorecallsthat the principlesunderlying the Convention cannotbeinterpreted and applied in a vacuum. Itmustalso take into account relevantrulesofinternationallawwhenexaminingquestionsconcerningitsjurisdiction and, consequently, determine State responsibility in conformity and harmonywith the governingprinciplesofinternationallawofwhichitforms part, althoughitmustremainmindfulof the Convention's specialcharacteras a humanrightstreaty (Article 31 § 3 (c) of the Vienna Convention on the LawofTreatiesof 23 May 1969; Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; and the above-citeddecisionofBanković and Others, at § 57)

9. Artico v. Italy, 13 May 1980, para. 33 “The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive”

10. DerogationsA. and Others v. United Kingdom 173.  The Court recalls that it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.

11. (…) Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the “extent strictly required by the exigencies” of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (...).

12. ReservationsLoizidou v. Turkey(1995) 89. Taking into consideration the character of the Convention, the ordinary meaning of Articles 25 and 46 (art. 25, art. 46) in their context and in the light of their object and purpose and the practice of Contracting Parties, the Court concludes that the restrictions ratione loci attached to Turkey’s Article 25 and Article 46 (art. 25, art. 46) declarations are invalid. It remains to be examined whether, as a consequence of this finding, the validity of the acceptances themselves may be called into question.

13. (…) 95. (...) the respondent Government must have been aware, in view of the consistent practice of Contracting Parties under Articles 25 and 46 (art. 25, art. 46) to accept unconditionally the competence of the Commission and Court, that the impugned restrictive clauses were of questionable validity under the Convention system and might be deemed impermissible by the Convention organs. (...) • It thus falls to the Court, in the exercise of its responsibilities under Article 19 (art. 19), to decide this issue with reference to the texts of the respective declarations and the special character of the Convention regime. The latter, it must be said, militates in favour of the severance of the impugned clauses since it is by this technique that the rights and freedoms set out in the Convention may be ensured in all areas falling within Turkey’s "jurisdiction" within the meaning of Article 1 (art. 1) of the Convention. • (...) the impugned restrictions can be separated from the remainder of the text leaving intact the acceptance of the optional clauses.