European Convention on Human Rights in the Context of the European Union Law

Seminar Paper, 2003

12 Pages, Grade: 8/10










Modern history of European integration processes can be traced back in the 1940s and the aftermath of World War II, which caused unprecedented destruction of European countries and a large-scale violation of human rights. Winston Churchill called for the creation of the “United States of Europe” at Zurich 1946,[1] while the European Congress of 1948 in the Hague paved the path for the constitution of the Council of Europe. Ten West-European countries founded this organisation in 1949,[2] which over the years enlarged to current forty-five members, thus including all the countries of the European continent, except Monaco and Belarus, while the Holy See enjoys the observer status.

The Council of Europe is an intergovernmental organisation with proclaimed aims to protect human rights, democracy and the rule of law, along with promotion of cultural identities and seeking solution to common European problems, such as discrimination, intolerance, environmental concerns, drug and human trafficking or terrorism.[3] Its main instruments of activity are conventions and recommendations, while the decision making process and structure maintains international and intergovernmental character. Many critics therefore keep labelling the Council as a mere “discussion forum” that lacks really efficient means of implementing those decisions in the member states.


A major achievement of the Council of Europe was arguably the adoption of the European Convention on Human Rights (ECHR) in 1950, which entered into force in 1953. Unlike traditional international law, founded on the doctrine of sovereignty and operating on the principles of reciprocity between the states, modern international human rights law calls for a state to accept unilateral obligations ensuring protection of human rights within its jurisdiction. The individual is now considered the subject rather than the object of international law.[4] This is evident from the text of the Convention, which in Article 34 provides for individuals, group of individuals and non-governmental organisations to lodge complaint against any of the signatories to the Convention, along with the provision for inter-state complaint set in Article 33.

The preamble of the Convention invokes the Universal Declaration of Human Rights, adopted by the United Nations’ General Assembly in 1948, but in this context the Convention acts as lex specialis, being designed to meet specific requirements of European countries. It also differs from other international documents on human rights in that it secures relatively reliable legal instruments for the protection of human rights contained therein. Of these, the most important were embodied in the European Commission of Human Rights established in 1954, and the European Court of Human Rights established in 1959. Given the ratification of the Convention is a precondition for membership in the Council of Europe, any individual, regardless of his/her citizenship or legal status who is under jurisdiction of any of the member states, enjoys full protection in accordance with the provisions of the Convention and this is revolutionary step forward in the development of international law. Protocol 11 to the Convention further simplifies the procedure of handling complaints. Prior to this, the Commission used to receive complaints and act as a filter, being authorised to examine their validity and subsequently to pass them to the Court for judgement. According to this Protocol, which was adopted by the Committee of Ministers of the Council of Europe in 1994 and entered into force in 1998, a single European Court of Human Rights was established to deal with an increased number of complaints and provided direct access to the Court both for individuals, groups and NGOs and for the states in inter-state complaints. Jurisdiction of this Court is now mandatory for all signatories to the Convention.[5]

Substantive rights and freedoms are defined in Section I of the Convention and those are:

- Right to life, Article 2
- Prohibition of torture, Article 3
- Prohibition of slavery and forced labour, Article 4
- Right to liberty and security, Article 5
- Right to a fair trial, Article 6
-- Nulla poena sine lege, Article 7
- Right to respect for private and family life, Article 8
- Freedom of thought, conscience and religion, Article 9
- Freedom of expression, Article 10
- Freedom of assembly and association, Article 11
- Right to marry, Article 12
- Right to an effective remedy, Article 13
- Prohibition of discrimination, Article 14

Additional rights and freedoms are established with Protocol 1 (Protection of property, Article 1; Right to education, Article 2; Right to free elections, Article 3), Protocol 4 (Prohibition of imprisonment for debt, Article 1; Freedom of movement, Article 2; Prohibition of expulsion of nationals, Article 3; Prohibition of collective expulsion of aliens, Article 4), Protocol 6 (Abolition of the death penalty, Article 1) and Protocol 7 (Procedural safeguards relating to expulsion of aliens, Article 1; Right of appeal in criminal matters, Article 2; Compensation for wrongful conviction, Article 3; Non bis in idem, Article 4; Equality between spouses, Article 5).

Covering a wide range of human rights and fundamental freedoms, the Convention is the oldest international legal instrument guaranteeing the protection of human rights, while its jurisprudence is the richest and most developed one. It is based on case-law system where the Convention bodies are bound by precedent, much like the Anglo-Saxon common law system. Under the Convention, however, there is no system of regular state reports concerning the application of its human rights standards, nor the Convention bodies may act ex officio in terms to examine national laws in abstracto. They respond only to the concrete cases of alleged violation of human rights in the member states.[6]

As above mentioned, according to the Protocol 11, the European Court of Human Rights sits on a permanent basis in Strasbourg and deals with all stages of a case. The number of judges equals the number of the member states and once elected by the Parliamentary Assembly of the Council of Europe, they act independently from their respective state authorities. Clearly unfounded cases are dismissed by a three-judge Committee, which now performs duties of the former European Commission on Human Rights. Majority of cases are heard by a seven-judge Chamber, which either reaches a friendly settlement or delivers a judgement. For the cases raising serious concerns of interpretation or application of the Convention the authorised body is the Grand Chamber of seventeen judges.

The Committee of Ministers is the policy-making and executive organ of the Council of Europe and is comprised of foreign ministers of the member states who serve as representatives of their governments.[7] In relation to the Convention, the Committee of Ministers approves the expenditures for functioning of the Convention organs, monitors the Court’s judgements ensuring the member states take necessary measures to prevent further violation of the Convention and supervises the process of granting compensation to the victims.

The Secretary General of the Council of Europe is overall responsible for strategic work and day-to-day management of the Organisation.[8] He/She acts as a depository for the Convention and for any reservations or derogations submitted by the member states and is responsible for informing all contracting parties of any signature or ratification of the Convention and of its Protocols.


Following the establishment of the Council of Europe the process of economic integration of the West-European countries commenced in 1950 with Robert Schuman’s Declaration, making the first step towards “European Federation”. European leaders of the time were guided by the ideas - firstly to strengthen security of Europe given the history of relations between France and Germany, thereby preventing any future conflicts, and secondly to establish a single economic space with freedom of movement of goods, capital and labour.[9] As a realisation of these goals the year 1951 saw the foundation of the first such organisation – the European Coal and Steel Community (ECSC), while in 1957 the Treaty of Rome established additional two – the European Economic Community (EEC) and the European Atomic Energy Community (Euratom).


[1] Pinder, John. Evropska unija. Sarajevo: TKP Šahinpašić, 2003. p. 181

[2] The Council of Europe: 800 Million Europeans. Ed. the Communication and Online Information Division - Unit for Contacts with the Public. The Council of Europe, 2003. p. 89

[3] Ibid. p. 7

[4] Gomien, Donna; Harris, David, and Zwaak, Leo. Law and Practice of the European Convention on Human Rights and the European Social Charter. Strasbourg: Council of Europe Publishing; 1996. p. 17

[5] Ibid. p. 91

[6] Gomien, Harris and Zwaak. 1996. pp. 18-19

[7] The Council of Europe: 800 Million Europeans. 2003, p.11

[8] Ibid. p. 19

[9] Pinder. 2003, pp. 1-3

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European Convention on Human Rights in the Context of the European Union Law
University of Sarajevo  (Centre for Interdisciplinary Postgraduate Studies)
European Studies
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european convention on human rights, european union, community law
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Sead S. Fetahagić (Author), 2003, European Convention on Human Rights in the Context of the European Union Law, Munich, GRIN Verlag,


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