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 exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death).
Article 1 – respecting rights 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 2 – life cited the article 2 of the ECHR to say that the government must
limit climate change to protect human health. Article 2 protects the right of every person to their life. The right to life extends only to human beings, not to animals, nor to "legal persons" such as corporations. the court declined to extend the right to life to an unborn child, while stating that "it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention". The court has ruled that states have three main duties under Article 2: • a duty to refrain from unlawful killing, • a duty to investigate suspicious deaths, and • in certain circumstances, a positive duty to prevent foreseeable loss of life. The first paragraph of the article contains an exception for
lawful executions, although this exception has largely been superseded by Protocols 6 and 13.
Protocol 6 prohibits the imposition of the death penalty in peacetime, while Protocol 13 extends the prohibition to all circumstances. The second paragraph of Article 2 provides that death resulting from defending oneself or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary". Signatory states to the convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war. The European Court of Human Rights did not rule upon the right to life until 1995, when in
McCann and Others v United Kingdom it ruled that the exception contained in the second paragraph does not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.
Article 3 – torture 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 4 – servitude Article 4 prohibits
slavery, servitude and
forced labour but exempts labour: • done as a normal part of imprisonment, • in the form of
compulsory military service or work done as an alternative by conscientious objectors, • required to be done during a
state of emergency, and • considered to be a part of a person's normal "civic obligations".
Article 5 – liberty and security 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 – fair trial , proclaimed in Article 6, is one of the most invoked by plaintiffs. 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 found by the court, 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 since 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 7 – retroactivity Article 7 prohibits the retroactive criminalisation of acts and omissions. No person may be punished for an act that was not a criminal offence at the time of its commission. The article states that a criminal offence is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under domestic law at the time, so long as it was prohibited by
international law. The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed. Article 7 incorporates the legal principle
nullum crimen, nulla poena sine lege (no crime, no penalty without law) into the convention. Relevant cases are: •
Kokkinakis v. Greece [1993] ECHR 20 •
S.A.S. v. France [2014] ECHR 69
Article 8 – privacy Article 8 provides a right to respect for one's "private and family life, his home and his
correspondence", subject to restrictions that are "in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others". This article clearly provides a right to be free of unlawful searches, but the court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. There have been cases discussing consensual familial sexual relationships, and how the criminalisation of this may violate this article. However, the ECHR still allows such familial sexual acts to be criminal. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the
right to privacy. Furthermore, Article 8 sometimes comprises
positive obligations: whereas classical human rights are formulated as prohibiting a state from interfering with rights, and thus
not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the state to become active, and to
do something (e.g. to enforce access for a divorced parent to his/her child). Relevant cases: •
Malone v. United Kingdom [1984] ECHR 10, (1984) 7 EHRR 14 •
Goodwin v. United Kingdom (2002) ECHR 28957/95 •
Zakharov v. Russia [2015] ECHR 47143/06 •
Oliari and Others v. Italy (2015) •
Vavřička and Others v. the Czech Republic (ECtHR April 8, 2021), holding that the nation of the
Czech Republic did not violate the convention by imposing a vaccination mandate on children in that country
Article 9 – conscience and religion Article 9 provides a right to
freedom of thought, conscience and
religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". Relevant cases: •
Kokkinakis v. Greece [1993] ECHR 20 •
Universelles Leben e.V. v. Germany [1996] (app. no. 29745/96) •
Buscarini and Others v. San Marino [1999] ECHR 7 •
Pichon and Sajous v. France [2001] ECHR 898 •
Leyla Şahin v. Turkey [2004] ECHR 299 •
Leela Förderkreis E.V. and Others v. Germany [2008] ECHR •
Lautsi v. Italy [2011] ECHR 2412 •
S.A.S. v. France [2014] ECHR 695 •
Eweida v. United Kingdom [2013] ECHR 2013
Article 10 – expression Article 10 provides the right to
freedom of expression, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This right includes the freedom to hold opinions, and to receive and impart information and ideas, but allows restrictions for: • interests of national security • territorial integrity or public safety • prevention of disorder or crime • protection of health or morals • protection of the reputation or the rights of others • preventing the disclosure of information received in confidence • maintaining the authority and impartiality of the judiciary Relevant cases: •
Lingens v. Austria (1986) 8 EHRR 407 •
The Observer and The Guardian v. United Kingdom (1991) 14 EHRR 153, the "
Spycatcher" case. •
Bowman v. United Kingdom [1998] HUDOC, (1998) 26 EHRR 1, distributing vast quantities of anti-abortion material in contravention of election spending laws •
Communist Party v. Turkey (1998) 26 EHRR 1211 •
Appleby v. United Kingdom (2003) 37 EHRR 38, protests in a private shopping centre •
TV Vest and Rogaland Pensioners Party v. Norway (2008)
Article 11 – association 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". Relevant cases: •
Vogt v. Germany (1995) •
Yazar, Karatas, Aksoy and Hep v. Turkey (2003) 36 EHRR 59 •
Bączkowski and Others v. Poland (2005)
Article 12 – marriage Article 12 provides a right for women and men of
marriageable age to
marry and establish a family. Despite multiple 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 birth sex violated article 12 as it meant that transsexual people were unable to marry individuals of the 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 – effective remedy 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 14 – discrimination Article 14 contains a prohibition of
discrimination. This prohibition is broad in some ways and narrow in others. It is broad in that it prohibits discrimination under a potentially unlimited number of grounds. While the article specifically prohibits discrimination based on "sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status", the last of these allows the court to extend to Article 14 protection to other grounds not specifically mentioned such as has been done regarding discrimination based on a person's sexual orientation. At the same time, the article's protection is limited in that it only prohibits discrimination with respect to rights under the convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the convention (e.g. discrimination based on sex – Article 14 – in the enjoyment of the right to freedom of expression – Article 10). As of 2016, only eight member states had ever invoked derogations. The court is quite permissive in accepting a state's derogations from the convention but applies a higher degree of scrutiny in deciding whether measures taken by states under a derogation are, in the words of Article 15, "strictly required by the exigencies of the situation". Thus in
A v United Kingdom, the court dismissed a claim that a derogation lodged by the British government in response to the
September 11 attacks was invalid, but went on to find that measures taken by the United Kingdom under that derogation were disproportionate. Examples of such derogations include: • In the 1969
Greek case, the
European Commission of Human Rights ruled that the derogation was invalid because the alleged Communist subversion did not pose a sufficient threat. This is the only time that the convention system has rejected an attempted derogation. •
Operation Demetrius—Internees arrested without trial pursuant to "Operation Demetrius" could not complain to the
European Commission of Human Rights about breaches of Article 5 because on 27 June 1957, the UK lodged a notice with the Council of Europe declaring that there was a "public emergency within the meaning of Article 15(1) of the Convention".
Article 16 – foreign parties 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 – abuse of rights 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 – permitted restrictions 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. ==Convention protocols==