In the aftermath of the Second World War the countries Europe had come to the conclusion that there was a need to prevent any recurrence of the atrocities of the Second World War, to prevent the creation of dictatorships. This gave rise to the creation of the Council of Europe in 1949 (not to be confused with the Council of Ministers in the EU). The Council of Europe set to work on negotiation and formulation of what was intended to become a legally binding convention on human rights for the nations of Europe. The intention was that for the first time human beings within Europe should have human rights enforceable under international law, before a court independent of the nation states, against public authorities. At the same time there was also a movement towards what subsequently become known as the EU.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, known simply as the European Convention on Human Rights (ECHR), was the COE's first legal treaty to protect human rights, as well as the first international human rights treaty with enforceable mechanisms. It was inspired by the United Nations' Universal Declaration of Human Rights (1948), which was signed in Rome on November 4, 1950, and entered into force on September 3, 1953. Only member states of the COE can become a party to the ECHR.
The ECHR's preamble provides for "the maintenance and further realization of human rights and fundamental freedoms," which "are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend."
The treaty deals mainly with civil and political rights, which are found in articles 1-18. Articles 19-51 list the working mechanisms of the European Court and Commission, while Protocol 1, 4, 6, 7, and 12 include additional rights. The right of individual complaint (article 25) obliges the states to accept the Court as having authority to rule over issues from within that state.
Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 (1), the control machinery established by the Convention has been restructured. All alleged violations of human rights are referred directly to the Court. In the majority of cases the Court sits in Chambers of seven judges. It decides on the admissibility and merits of applications and if necessary undertakes an investigation. The Court will also place itself at the disposal of the parties with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the protocols thereto. Hearings are public unless the Court in exceptional circumstances decides otherwise.
It is important to remember that the European Convention on Human Rights and the treaties of the EU are quite separate. The European Convention on Human Rights deals with human rights and their enforcement by the institutions created by the Convention. The EU treaties originally dealt with issues connected with trade between the member states. Subsequent treaties have expanded the area of activities covered by the EU treaties, creating laws and regulations which only apply to treaty matters; there are separate institutions created by the EU treaties for dealing with enforcement of these laws and regulations. The European Convention on Human Rights and the EU treaties are separate and distinct. However it should be noted that the member states of the EU agreed that no state would be admitted to membership of the EU unless it accepted the fundamental principles of the European Convention on Human Rights and agreed to declare itself bound by it.
The European Convention on Human Rights was drafted taking the Universal Declaration of Human Rights 1948 as its starting point, but with the pursuit of the aims and objectives of the Council of Europe, through the maintenance and further realisation of human rights and fundamental freedoms, firmly in mind. Once its terms had been agreed it was opened for signature in Rome on 4 November 1950 and took effect once ten of the subscribing states, described as ‘high contracting parties’ (HCPs) in the document, had executed and deposited with the Secretary General of the Council of Europe the necessary instrument of ratification. It entered into force in September 1953.
The European Convention on Human Rights represented the first steps for the collective enforcement of certain of the rights set out in the Universal Declaration since, in addition to defining a list of civil and political rights and freedoms, it created a means of enforcement of the obligations entered into by HCPs. Three institutions or organisations were set up to discharge this responsibility, namely the European Commission of Human Rights (usually referred to as the Commission, which was set up in 1954), the European Court of Human Rights (which was not set up until 1959) and the Committee of Ministers of the Council of Europe (i.e. the respective Minister of Foreign Affairs of each of the member states or their representative).
Whilst the Convention as originally drafted provided for complaints to be brought against HCPs either by another HCP or by individual applicants (which might be either individuals, groups of individuals or non-governmental organisations), the right of individuals to bring complaints was an option for the individual HCP, so that, unless the state opted in, the individual would be prevented from bringing a complaint against the particular state.
The Convention establishes the European Court of Human Rights. The European Court of Human Rights is an international court based in Strasbourg. It consists of a number of judges equal to the number of member states of the Council of Europe that have ratified the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court's judges sit in their individual capacity and do not represent any state. In dealing with applications, the Court is assisted by a Registry consisting mainly of lawyers from all the member states (who are also known as legal secretaries). They are entirely independent of their country of origin and do not represent either applicants or states.
The Court applies the European Convention on Human Rights. Its task is to ensure that states respect the rights and guarantees set out in the Convention. It does this by examining complaints (known as applications) lodged by individuals or, sometimes, by states. Where it finds that a member state has violated one or more of these rights and guarantees, the Court delivers a judgment. Judgments are binding: the countries concerned are under an obligation to comply with them.
An individual may lodge an application with the Court if they consider that they have personally and directly been the victim of a violation of the rights and guarantees set out in the Convention or its Protocols. The violation must have been committed by one of the states bound by the Convention.