European Convention on Human Rights
|Convention for the Protection of Human Rights and Fundamental Freedoms|
|Short title:||European Convention on Human Rights
|Title (engl.):||Convention for the Protection of Human Rights and Fundamental Freedoms|
|Abbreviation:||ECHR (not official)|
|Date:||Nov 4, 1950|
|Come into effect:||Germany: Sep. 3 1953 ( BGBl. 1954 II p. 14 )
Switzerland: AS 1974 2151
|Reference:||Germany: BGBl. 1952 II p. 685 , ber. 953 ,
Neubek .: BGBl. 2002 II p. 1054, 1055
Austria: BGBl. No. 210/1958 (constitutional rank : BGBl. No. 59/1964 )
Switzerland: SR 0.101
|Legal matter:||Human rights|
|Signing:||47 (Apr 18, 2010)|
47 (Apr 18, 2010)
|Germany:||Ratified December 5, 1952|
|Liechtenstein:||Ratification Sep 8 1982|
|Austria:||Ratification Sep 3 1958|
|Switzerland:||Ratified Nov. 28, 1974|
|Please note the note on the applicable contract version .|
The Convention for the Protection of Human Rights and Fundamental Freedoms contains a catalog of fundamental rights and human rights (Convention No. 005 of the Council of Europe). The European Court of Human Rights in Strasbourg monitors their implementation .
Entry into force and ratification of the Convention
The convention with SEV no. 003 was drawn up within the framework of the Council of Europe , signed in Rome on November 4, 1950, and came into general effect on September 3, 1953. Only their English and French language versions are binding under international law, but not the common German language version agreed between Germany, Austria, Liechtenstein and Switzerland.
As a so-called closed convention, it can only be signed by members of the Council of Europe and the European Union . The willingness to sign and ratify the ECHR has developed over time into a fixed condition for accession for states wishing to join the Council of Europe. Therefore, all member states of the Council of Europe have signed the convention and made it nationally valid.
Structure and content of the Convention
The Convention is divided into three sections, which in turn are divided into articles . Section I - “Rights and Fundamental Freedoms” (Art. 2–18) contains the individual human rights protected by the Convention. These basically include the classic civil liberties , but they were not chosen on the basis of theoretical considerations, but rather on the basis of practical considerations. This also reflects the fact that in addition to the classic civil liberties, economic, cultural and political rights are also partly reflected in the Convention or in the protocols that supplement it. On the other hand, there are also no rights of freedom, such as B. the freedom of occupation , which is guaranteed in the constitutions of many European countries.
Section II - “ European Court of Human Rights ” (Articles 19–51) contains the rules on the composition and procedure of the Court of Justice. Section III. - “Various provisions” (Art. 52–59) include, among other things, a. , according to which the convention must not be interpreted as restricting or impairing human rights and fundamental freedoms recognized in the laws of one of the contracting parties or in any other convention to which it is a party. The ECHR only specifies a minimum standard of human rights protection that may be extended by contracting states.
Methodology for the interpretation of Convention rights
The interpretation of the individual convention rights is carried out by the European Court of Human Rights. The two official language versions serve as the basis for the interpretation. H. the English and French. The interpretation is independent of national law (autonomous). For example, the Court of Justice has B. German regulatory offenses are attributed to criminal law , although the German legislature wanted to remove them from criminal law.
Since the ECHR regards the ECHR as a “living instrument”, ECHR provisions are interpreted on the basis of current social and economic conditions - not those during the creation of this provision (see e.g. in contrast to originalism ). The human rights protection of an ECHR provision can therefore change over time. For example, (3) ECHR speaks of the rights of the “accused” (English “charged with a criminal offense” or French “accusé”). Nowadays the ECHR understands this term much broader than just comprehending the proceedings in court (see indictment ). According to this, rights guaranteed in Art. 6 Para. 3 ECHR can already apply at the time of the police investigation , although no judicial process has yet been initiated.
According to the established case law of the ECHR, the aim of the convention is not to grant theoretical rights, but practical and effective ones. Therefore, the ECHR interprets the Convention in such a way that the Convention rights are also effective. Thus, according to the ECHR, an expropriation within the meaning of Art. 1 of the Additional Protocol (1st Protocol) is present even if the owner has not been formally expropriated, but he can in fact not use the property, because z. B. the military occupied his property.
The ECHR does not contain the right to asylum and does not protect against sexual discrimination, although its catalog innot exhaustive . It says:
“Sexual orientation falls under the prohibition of discrimination in Art. 14 ECHR. The list in Art. 14 ECHR is only an example and is not exhaustive, as the adverb “in particular” in the text of the article indicates. For the applicability of Art. 14 ECHR it is sufficient that the facts of the legal dispute are in the sphere of application of a convention guarantee. "
According to the established case law of the ECHR, the principle of the practical applicability of the rights granted applies.
"Just like differences based on gender, differences based on sexual orientation require particularly important reasons for their justification."
Alsofalls within the area to protect same-sex partnerships, as morals are subject to change, which the Supreme Court stated.
"Same-sex cohabitation falls within the scope of protection of Art. 8 Para. 1 ECHR with regard to the right to respect for private life."
Article 1 - Obligation to respect human rights
national territory . Furthermore, it is fundamentally irrelevant whether the person concerned is a citizen of the country concerned or not. The obligation under Article 1 applies to all state institutions, i.e. not only the executive but also legislation and jurisdiction .obliges all contracting states to the convention to grant the persons under their sovereignty the rights and freedoms granted in Section I of the convention. The responsibility of the respective state is therefore not limited to its
Article 2 - Right to Life
death penalty , the 6th and 13th Protocols to the ECHR mean that this restriction is no longer relevant. Under certain conditions (e.g. in the case of emergency aid , arrests or the lawful suppression of an uprising ), however, the use of deadly force is also permitted under Article 2, Paragraph 2.safeguards the right to life of every human being and forbids deliberate killing. Although it allows the execution of a judicial
According to the jurisprudence of the European Court of Human Rights, Art. 2 obliges the state to conduct effective official investigations if a person has died as a result of violence, in particular by representatives of the state or otherwise.
Article 3 - Prohibition of Torture
torture or inhuman or degrading punishment or treatment. The prohibitions according to Art. 3 areemergency proofaccording to the Convention. This means that evenifthe life of the nation is threatened by war or other public emergency, the prohibition applies.contains one of the core fundamental rights of the Convention. Under this rule, no one should besubjected to
Article 4 - Prohibition of slavery and forced labor
slavery or serfdom (Paragraph 1). This article also prohibits forced or compulsory labor (Paragraph 2). However, such work does not count as forced or compulsory labor under this article. B. Obligations to work in the penal system , in military and alternative service or in the event of a disaster.forbidskeepinga person in
Article 5 - Right to liberty and security
imprisonment , in cases of provisional arrest or in the case of mentally ill, drug addicts or vagabonds ). Paragraphs 2-5 of this article regulate the relevant rights of such persons. This includes informing arrested persons of the reasons for the arrest and the allegations and the right to be brought before a judge without delay. This also includes the right to have the deprivation of liberty examined by a judge and the right to compensation for unlawful deprivation of liberty.guarantees the right to freedom and security. In paragraph 1, it contains a final catalog of circumstances under which a person may be deprived of their liberty on a legal basis (e.g. after sentencing to
Article 6 - Right to a fair trial
right to a fair trial and is the mostimportant fundamental rightfor the case law of the ECHR . The overwhelming number of cases before the Court of Justice concern this right. Art. 6 para. 1 ECHR contains, in certain cases named there, among other things, the right to a public and thus oral court hearing. This must be carried out at least at some point in the course of the legal proceedings. If the court proceedings only involve a single instance, the oral public hearing must therefore be held in this instance. Art. 6 ECHR also guarantees the principle of equality of arms , the right to a fair hearing , the right to justify decisions and the right to inspect files .contains the
The hearing must be held before an independent and impartial court based on a law. He also demands that legal proceedings be completed within a reasonable period of time. Paragraph 2 of this article contains the right to the presumption of innocence . This means that every accused person has to be presumed innocent until proven guilty through a legal process. In paragraph 3, various individual rights of the accused are guaranteed, including a. the right to be informed about the charge, the right to a defense, the right to confront and the right to an interpreter.
Article 7 - No punishment without law
prohibition of retroactive effect ( lex praevia ) including the prohibition retroactive increase in penalties. It forbids punishing someone if the act or omission was not punishable at the time it was committed. This provision also prohibits a retroactive tightening of the penalty.para. 1 contains the principle nullum crimen, nulla poena sine lege and requires that only the law can provide for a criminal offense and threaten a punishment. The offense must be clearly defined. From the criminal law principle set out in Art. 7 ECHR, three specific guarantees can be distinguished: the requirement of certainty ( lex certa ) including predictability and accessibility, the prohibition of extensive - analogous - interpretation ( lex stricta ) and the
Article 8 - Right to respect for private and family life
Under, the protection can be of four rights - the private and family life, the right to housing and protection of correspondence - to summarize. The protection of private life comprises several sub-aspects, with human autonomy and the right to self-determination at the center of the guarantee. A right to the identity and development of the person, the possibility of establishing relationships with other people as well as professional activities are protected. Not only name, gender orientation, sex life, and identification with gender, but also physical integrity and mental health are essential elements in this context. Art. 8 ECHR protects the integrity of family relationships, privacy and also extends to the decision on how one wants to appear in public space (protection of good reputation and honor, right to a name, right to one's own image) as well as individual aspects of external lifestyle (choice of clothes, with restrictions; occupation). Under Art. 8 ECHR family life (existing family) is also protected and confers the right to be able to lead the family relationship undisturbed and without unjustified, in particular arbitrary, interference. Furthermore, Art. 8 ECHR protects the right to housing. Finally, it guarantees the protection of correspondence (mail and telecommunications secrecy).
Article 9 - Freedom of thought, conscience and religion
Article 10 - Freedom of Expression
Article 11 - Freedom of assembly and association
Article 12 - Right to marry
Article 13 - Right to an effective complaint
obliges the member states of the convention to provide an effective means of complaint in the event of violations of convention rights in domestic law.
Article 14 - Prohibition of Discrimination
discrimination . The article does not conclusively name reasons such as a. Gender, race (ethnicity), skin color, language and religion. However, the provision prohibits discrimination with regard to a certain convention law, which is why one speaks of the accessory nature of the prohibition of discrimination . The 12th Protocol to the ECHR, on the other hand, contains a general prohibition of discrimination. However, this has not yet been ratified by Germany, Liechtenstein and Austria; Switzerland has not signed it.requires the member states to ensure that everyonecan exercisethe rights of the Human Rights Convention without
see also interpretation of the ECHR
Article 15 - Derogation in case of emergency
allows the member states to deviate from the rights mentioned in the convention if “the life of the nation” is threatened by war or another state of public emergency. However, deviations from Article 2 are only permitted in the event of death as a result of lawful acts of war. Article 3 (prohibition of torture and ill-treatment), Article 4 (1) (prohibition of slavery and serfdom) and Article 7 (prohibition of retroactive effects) may in no case be deviated from.
Since 1998 - similar to a national constitutional complaint - every individual can appeal directly to the Court of Justice against a violation of his or her convention rights ( individual application ). Previously, this right was linked to the recognition of the jurisdiction of the European Commission for Human Rights and the European non-permanent Court of Justice for Human Rights. In addition, the individual member states can also refer to the Court of Justice for a violation of the Convention by another member state ( inter-state cases ).
Such a legal protection system is unusual for international human rights conventions; it is one of the most highly developed legal protection systems in international human rights protection.
Another procedure before the ECHR is the expert opinion procedure, which, however, is practically meaningless. The Committee of Ministers of the Council of Europe can ask the Court of Justice for an opinion on the interpretation of the Convention and its protocols.
Position and rank in national law
the European Convention on Human Rights reads: "The High Contracting Parties undertake to comply with the final judgment of the Court of Justice in all cases in which they are a party."
All signatory states have accordingly submitted to the case law of the European Court of Human Rights (ECHR). However, in the absence of executive powers, the ECHR can only impose restitutions in the form of compensation payments against the acting state (cf. ECHR). Although the decisions of the ECHR are binding at international law level, their binding effect varies within the legal systems of the individual convention states, as the position of the human rights convention differs from state to state (see dualistic system ).
In Germany, the ECHR ranks below the Basic Law at the level of the simple federal law (cf. (2) GG). In doing so, it takes precedence over state law provisions, but is subject to the “lex posterior” principle in comparison with similar federal law regulations, so it could possibly take a back seat to more recent legal regulations. However, since the ECHR's guarantee of fundamental rights largely corresponds to that of the Basic Law, the Federal Constitutional Court stated in 1987 that other statutory provisions of the Federal Republic (such as the Code of Criminal Procedure ) should be interpreted in the light of the ECHR. The higher federal courts also follow this view. So is de facto an above legal rank of the ECHR in the German law does not constitutional, but relents.
The Council of Europe monitors the national implementation of the judgments of the ECHR on human rights violations. In the current list of judgments to be monitored, etc. a. As of May 2009, a total of 7 procedures have not yet been implemented in Germany.
Judgment of the Federal Constitutional Court 2004
According to the case law of the Federal Constitutional Court of October 14, 2004 in the Görgülü case , all state organs of the Federal Republic of Germany are legally bound by the Convention and the additional protocols that have come into force for Germany within their jurisdiction. They have to take into account the guarantees of the Convention and the case law of the Court of Justice when interpreting fundamental rights and the rule of law. The judgments of the ECHR are an aid to the interpretation of the Convention for the German courts. If a convention-compliant interpretation of German law is possible, this takes precedence. If a German court wants to decide differently from the ECHR, it must give detailed reasons and deal with the case law of the ECHR in detail.
If the ECHR has found a human rights violation by the Federal Republic of Germany, this does not remove the legal force of decisions (e.g. a judgment). However, if the decision of the ECHR can still be taken into account in court proceedings, this must be done in principle. That means: The human rights violation is to be eliminated by a court decision. However, a “schematic enforcement” is not required. It can even be unconstitutional. If, for example, the competent specialized court in civil proceedings does not take into account the interests of the litigation party not involved in the Strasbourg proceedings, this can constitute a violation of fundamental rights in connection with the rule of law. In the Görgülü case , a dispute over the rights of access to a child, the interests of the child and the foster family who had not filed a complaint in Strasbourg had to be taken into account.
The decision of the BVerfG allows a wide range of interpretations as to whether and how decisions of the ECHR against Germany have to be implemented nationally. It caused considerable irritation on the part of the members of the Council of Europe about the extent to which the member states have to adhere to the decisions of the ECHR. The legislature has reacted to the case law of the BVerfG. If the ECHR establishes a violation of the ECHR or its protocols by Germany and a judgment is based on this violation, restitution action can be brought in civil proceedings (cf. No. 8 ZPO ). The regulations for labor ( ArbGG ), social ( SGG ), administrative ( VwGO ) and tax court proceedings ( FGO ) also refer to this provision . For the criminal process, the possibility of a resumption of the proceedings has existed since 1998 ( No. 6 StPO , so-called lex Pakelli ).
According to a statement by the Federal Constitutional Judge Gertrude Lübbe-Wolff in the Humboldt Forum Recht (ECtHR and national jurisdiction - The Görgülü Case) , Germany was convicted a total of 62 times for human rights violations by July 2006 . At the same time, Lübbe-Wolff expresses the general lack of understanding of the experts regarding the above judgment (RZ 32). It states that in the event of human rights violations, the state must restore the previous situation and, if these persist, the state must stop them (paragraph 16). In this lecture, she also mentions the Sürmeli case in RZ 34, which was granted a standstill in the acquisition of rights by the ECHR due to the lengthy duration of the proceedings. The case was decided by the Grand Chamber of the ECHR by judgment of June 8, 2006. Lübbe-Wolff notes that Germany reacted quickly in this case and submitted a draft law from the Federal Ministry of Justice in September 2006 that would cure this case. However, this is still the draft law on the complaint of failure to act (see in this respect complaint of failure to act ), which was submitted in August 2005.
Due to a conflict between the ECHR and the Federal Constitutional Court, as described in the newspaper Das Parlament on July 11, 2005, there was unprecedented open resistance from a national constitutional court in the history of the Council of Europe. In the same article, the former constitutional judge Renate Jaeger is quoted, who was a judge at the Human Rights Court until the end of 2010.
“Perhaps, presumed Jaeger, as a 'side effect' of the overloading of the court in some countries, it is not unwelcome when human rights violations 'are not investigated or reprimanded in a timely manner'. There may be a 'deterrent effect' to governments convicted of violating the Charter of Human Rights - with the consequence that the states may not be unwelcome to 'slow down, stand still and idle'. "
In July 2007 the ECHR stated in the Skugor v. Germany case that in the event of excessively long procedural duration in violation of human rights in civil proceedings, the constitutional complaint to the Federal Constitutional Court could not be regarded as an effective appeal option within the meaning ofECHR:
"[...] the Court of Justice recalls that the constitutional complaint before the Federal Constitutional Court cannot be regarded as a valid complaint within the meaning ofthe Convention and a complainant is therefore not obliged to make use of this legal remedy, even if the matter is still is pending (Sürmeli ./. Germany [GK], No. 75529/01, paras. 103-108, CEDH 2006-…) or has already been concluded (Autumn ./. Germany, No. 20027/02, January 11, 2007 , Paras 65-66). "
In order to close the legal protection gaps identified by the ECHR and to create effective legal protection options in the event of excessively long court proceedings and criminal investigation proceedings, the Federal Government launched a bill in 2010 that provides for two stages: on the first stage, those affected should be given the opportunity to to complain about excessive duration of proceedings (" delay complaint "); In a second step, if necessary, appropriate compensation can be claimed.
Based on the decision of the Federal Fiscal Court (on the so-called “ treaty override ”), the BVerfG will have to decide whether international treaty law - such as the ECHR - takes precedence over simple German law, because of its friendliness to international law. The Federal Administrative Court alone has allocated by decision of 27 February 2014. right to strike for civil servants, conflict resolution between the ECHR and contrary to standing simple German law the legislature without the BFH be considered as a submission to the Constitutional Court.
Status of the ECHR at the state level
Even if the ECHR has a somewhat dubious status at the federal level, it has constitutional status in the case of state regulations, as it is firmly anchored in some federal states.
Article 2, paragraph 3 of the constitution of the state of Brandenburg states:
"3) The people of the state of Brandenburg are committed to the fundamental rights laid down in the Basic Law for the Federal Republic of Germany, in the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the European Social Charter and in the International Human Rights Covenants." In the state of Brandenburg are all the regulations , which are a matter of the state, secured and derived directly by the ECHR.
Through the reform of federalism, the Basic Law partially grants the states more freedom in shaping their laws and ordinances; according to and GG, the penal law as well as the law on schools and civil servants should be mentioned. In these areas, the legislature of the respective country is primarily responsible. For example, the right to freedom of expression in state schools is given by the ECHR, which is anchored in the constitution of some federal states. This may be restricted if groups are discriminated against and robbed of their “good reputation” according to ECHR within the meaning of and in connection with ECHR. These views are, however, already indirectly realized through GG. In connection with ECHR, for example, they have compulsory and, in particular, neutral reporting on homosexuality required under national law. H. Schools in Brandenburg are not allowed to teach in a disparaging way about same-sex partnerships, this has state constitutional status.
The judgment of the ECHR states: “No violation ofof Prot. No. 1 to the ECHR (right to education), ECHR (freedom of thought, conscience and religion) and ECHR (right to privacy - and family love) by the refusal of the German authorities to exempt the children of the complainants from compulsory sex education classes and other compulsory school events that they have complained about. "
This view is also supported by the right to education, which appears in the Universal Declaration of Human Rights in Art. 26, is anchored in , and GG for the customary part of international people and indirectly by human rights in the Basic Law is defined. The Basic Law itself only has an educational mandate , but the state constitutions guarantee the right to a neutral education. The Federal Constitutional Court has already dealt with it and essentially endorsed the opinion of the ECHR.
In Austria , which joined the ECHR in 1958, their rank in relation to national law was initially disputed. In 1964, the ECHR was retroactively raised to constitutional rank with the Federal Constitutional Law, Federal Law Gazette No. 59/1964, so that the Constitutional Court (VfGH) the ECHR as well as "national" catalogs of fundamental rights, for example the fundamental rights of the constitutional constitutional constitution of 1867, has to apply. Since the Austrian Federal Constitutional Law does not have its own catalog of fundamental rights, the European Convention on Human Rights, together with the Constitutional Law on the General Rights of Citizens and, more recently, the Charter of Fundamental Rights of the European Union, represent the core of Austrian fundamental rights legislation. As the European Convention on Human Rights has constitutional status , encroachments on the rights guaranteed by the European Convention on Human Rights can be reprimanded in the same way as encroachments on other constitutionally guaranteed rights. Accordingly, the Constitutional Court also deals with asylum procedures, especially in the context of rights under Art. 3 and 8 ECHR.
A reservation to the Convention made on the occasion of the ratification concerned the provisions on the public in judicial proceedings. The ECHR declared this to be invalid on October 3, 2000 (case of Eisensteck vs. Austria).
In Switzerland , the ECHR is directly applicable law. According to the case law of the Swiss Federal Supreme Court , the ECHR takes precedence over the Federal Constitution. Basic state rights are enforceable by every citizen not only on the basis of constitutional rights, but also on the basis of any rights to which someone is entitled under the ECHR. However, according to the case law of the Swiss Federal Supreme Court, requests for declarations based on ECHR do not take effect, but refer those affected to legal action.
The Swiss Federal Constitution (BV) partly guarantees more extensive freedoms than the ECHR, such as comprehensive economic freedom . It should be noted, however, that according to BV, unconstitutional federal laws must also be applied. The constitution therefore offers no protection against federal laws that violate constitutionally protected fundamental rights. In the case of ECHR-protected fundamental rights, however, the Swiss Federal Supreme Court observes the ECHR in such cases, as otherwise Switzerland would be condemned by the European Court of Human Rights.
However, Switzerland (or the Swiss Federal Supreme Court) has recently shown a certain degree of difficulty in implementing the ECHR (especially in the implementation of ECHR judgments) in two cases.
The procedural guarantees of the ECHR led to adjustments to the cantonal criminal procedure codes in numerous cantons . However, certain cantons still had criminal procedure codes for a long time, which contradicted the ECHR. In the canton of Lucerne, for example, it was possible for the same judge to first order pre- trial detention and then to investigate the accused. With the entry into force of the Swiss Code of Criminal Procedure on January 1, 2011, these contradictions have been eliminated.
Principality of Liechtenstein
The Principality of Liechtenstein has been a member of the Council of Europe since 1978 and ratified the ECHR in 1979. Foreign nationals and stateless persons are now treated as equivalent to nationals as bearers of basic and human rights, unless previously stipulated in the state constitution (LV).
To foreigners does not apply, however, to be the asset acquisition of freedom and the freedom of the country's nationals is reserved, as this explicitly in Art. 28 para. 2 LV. Even after Liechtenstein's accession to the European Economic Area (EEA), these restrictions regarding the freedom of establishment largely continue to exist.
In Liechtenstein, the ECHR has de facto constitutional status.
With the implementation of the European Convention on Human Rights from 1982, the Liechtenstein State Court (StGH), similar to Austria, found a modern doctrine of fundamental rights that had long existed in Switzerland and Germany.
Dutch law even goes beyond that as it gives the ECHR precedence over constitutional law.
In Norway , the Law on Strengthening the Status of Human Rights in Norwegian Law of May 21 (Law No. 30) 1999 ensures that the ECHR takes precedence over other legal provisions.
The United Kingdom codified the status of the ECHR in the Human Rights Act 1998 . In the Good Friday Agreement in 1998 the kingdom committed itself to anchoring the human rights convention in Northern Irish law.
In the course of the referendum on whether the United Kingdom should remain in the European Union in April 2016 , the then Home Secretary Theresa May spoke out in favor of staying, but reforming human rights in the United Kingdom would require one to be aware of the influence of the European Convention on Human Rights and the European Court of Human Rights: " The Human Rights Convention can tie the hands of Parliament, does nothing to our prosperity, makes our country more insecure by preventing the deportation of dangerous, criminal, foreign citizens and does nothing to the attitude to human rights in governments, like that of Russia, change. According to Justice Minister Elizabeth Truss from August 2016, the convention is to be replaced by a British Bill of Rights in the future.
In order to be able to fend off potentially unjustified complaints against members of its own armed forces more easily, the British government announced at the beginning of October 2016 that it would no longer apply the European Convention on Human Rights on a case-by-case basis. Instead of the ECHR, only the Geneva Red Cross Conventions should apply to the deployment of the armed forces, which allowed lethal force as the first option against enemy fighters.
In the course of the Brexit negotiations, it became known in October 2020 that the negotiators of the European Union insisted that the United Kingdom should continue to commit to the European Convention on Human Rights in return for a trade agreement even after it had left the Union.
According to Article 140 of the Croatian Constitution , international treaties are part of the internal legal order of the Republic of Croatia and take precedence over domestic legislation.
According to Article 10 of the Constitution of the Czech Republic, the ratified conventions for the protection of human rights take precedence over national legislation. Ratified international agreements are binding on the Czech Republic and form part of the legal system. If the international agreement provides otherwise than the law, the international agreement takes precedence.
According to a decision of the Russian Constitutional Court on July 14, 2015, the ratification of the ECHR has become part of the legal system of the Russian Federation . Regardless of the binding nature of decisions of the European Court of Human Rights, these may not be enforced if they “contradict the fundamental constitutional values of the Russian Federation”. In December 2016, the Russian Duma, with a majority of 434 to 3 votes, passed an amendment to the Law on the Constitutional Court , which introduced a special procedure for checking the enforceability of decisions of international organizations. The court can deny enforceability if the decisions contradict the foundations of the state structure of the Russian Federation or the fundamental rights laid down in the constitution .
ECHR and EU
The European Union (EU) has not yet acceded to the convention, but the Union member states have ratified it . The European Union was obliged to conclude such a contract by (2) of the EU treaty . According to Art. 6 Para. 3 of the EU Treaty, the fundamental and human rights of the ECHR are already part of Union law: “The fundamental rights as guaranteed in the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the common Constitutional traditions of the member states are, as general principles, part of Union law. "
Since June 30, 2005, the European Court of Human Rights (case Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, Az. 45036/98) reserves the right to examine every single legal act of the EU with regard to the European Convention on Human Rights :
"156. If such equivalent protection is considered to be provided by the organization, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization. However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international co-operation would be outweighed by the Convention's role as a “constitutional instrument of European public order” in the field of human rights (Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, § 75). "
The prerequisites for the EU's accession to the ECHR were already created with the 14th Protocol to the ECHR in 2004. Since this protocol came into force on June 1, 2010, the EU has been able to join the ECHR. In a press release of March 17, 2010, the European Commission proposed so-called negotiating guidelines for accession to the ECHR.
On April 5, 2013, the EU negotiators presented a draft agreement for accession to the ECHR. As a further step, it was planned that the Court of Justice of the European Union (ECJ) would comment on the draft, that the EU member states would then unanimously agree to the agreement, and that the European Parliament would support the agreement with a two-thirds majority. Finally, the parliaments of the member states of the Council of Europe should have ratified the treaty.
In an opinion published on December 18, 2014, the ECJ as plenary, however, considered the draft agreement to be incompatible with Art. 6 (2) TEU and the corresponding Protocol No. 8 (Opinion 2/13 “ECHR after Lisbon”). The reasons he gave were the lack of coordination between Article 53 of the ECHR (no restriction of the legal human rights of the contracting parties) and Article 53 of the Charter of Fundamental Rights (no restriction on other levels of standardized human rights), the problematic relationship between Rule 18 of the draft and the preliminary ruling procedure under Article. 267 TFEU as well as a possible prejudice to Art. 344 TFEU (disputes between the member states of the EU). This has brought the accession process to a standstill.
The emergence of the European Convention on Human Rights
The European Convention on Human Rights was created in an astonishingly short time. From the first demand made on May 7, 1948 at the Hague European Congress , to the work in the Council of the European Movement or in the International Legal Committee and above all the intensive discussion of the convention in the Council of Europe, to its signing by the contracting states on May 4 , 1948 November 1950 passed just two and a half years.
United Nations influence
The influence of the Universal Declaration of Human Rights (UDHR) , which it had not only in terms of substantive law, but also in relation to the motivation to create a European Charter of Fundamental Rights, cannot be denied. This is already clearly expressed in the preamble to the agreement ( "... in view of the Universal Declaration of Human Rights ..." ). The aim was to achieve at the (initially Western) European level, which the United Nations, with its declaration of 1948 (UDHR), had not succeeded internationally due to the contradictions between East and West. A generally recognized declaration that is not merely a recommendation but should oblige the contracting states to submit.
Contribution of the European unification movement
Winston Churchill's speech , which he gave on September 19, 1946 at the University of Zurich, is generally regarded as the first impetus for the start of European unification policy . In this speech he advocated the creation of an institution that “may be called the United States of Europe ”. On May 14, 1947, the European unification movement was founded with the support of Churchill .
The influence the movement had on the creation of the ECHR is also undeniable. However, a first phase of disillusionment was already emerging in the decision-making process of the often enthusiastic movement. It was recognized that a convention based on broad approval could only be achieved by cutting back on the demands made.
From 7 to 10 May 1948 the European Congress met in The Hague as a manifestation of the European unification movement . Around 700 politicians from almost all European countries called for the political unity of Europe at the congress. The creation of the Council of Europe and a European human rights convention were called for, which should serve as the basis for a future community. Only those states should join the planned alliance that were ready to sign this human rights convention. The aim of the movement was discussed in three committees of the congress, the political, the economic-social and the cultural. The resolution of the political committee referred 6 out of 14 points to the planned human rights convention. Above all, freedom of expression and assembly and the right to political opposition should be in the foreground. The resolution of the cultural committee also dealt extensively with human rights. Here Sir David Maxwell Fyfe and David Eccles called for a legally binding convention for the first time. The Culture Committee called for a European Court of Justice that should not only be open to states, but also to individuals and groups. Many of the organs that are essential for the protection of fundamental rights at the European level, some of which still exist today, were proclaimed at the European Congress. However, the European Congress did not stop at these proclamations; he set up a commission that was entrusted with the task of drafting a human rights convention.
Council of the European Movement
The commission convened by the European Congress submitted a report to the Council of the European Movement at its conference held in Brussels from February 25 to 28, 1949, on the basis of which the conference decided on a recommendation which already specified the aims pursued. Since the UDHR had been adopted by the United Nations in December 1948 , the decision of the conference referred to this charter with the remark that many of the rights listed there not only require protection, but are also protectable. However, the decision still left open whether these rights from the UDHR should be adopted unchanged or not. At least it was clear that the convention should be created as a legal basis for decision-making by the planned court. Its competencies had already largely been worked out at the conference. As a permanent court of justice, the Court of Justice should have jurisdiction after the domestic courts have been exhausted and should be able to appeal to individual or state complaints. In the event of a violation of the Convention, the court should be able to award compensation and annul the incriminated act. As a further body of the Council of Europe, a commission was planned to act as an arbitration and consultation body for the Court of Justice, with the competence to make recommendations. The execution of judgments and recommendations should be the responsibility of the Council of Europe.
International Legal Committee
On the basis of the decision of the conference in Brussels, an international legal committee, chaired by the former French Justice Minister Pierre-Henri Teitgen and reporting by Sir David Maxwell Fyfe, drew up a draft of the Convention with substantive provisions and rules of procedure. This first draft was limited to listing the human rights to be guaranteed without defining them. This task should be left to a later supplementary agreement. Until this was created, the convention according to Teitgen and Fyfe should only oblige the contracting states to continue to guarantee the listed human rights to the extent to which they were already protected in the contracting state at the time the agreement was signed. Individuals should still have access to the Court of Justice, but only with the consent of the Commission, which should be refused without giving a reason. The draft convention was presented to the Council of Europe's Provisional Committee of Ministers on June 12, 1949.
Working in the Council of Europe
The contribution of the European unification movement was important for the development of the convention, but the majority of the work was done within the framework of the Council of Europe.
Consultative Assembly initiative
At the request of Winston Churchill, the Consultative Assembly (BV) of the Council of Europe decided on August 13, 1949 to obtain the approval of the Committee of Ministers (MK) to consider the MRK draft; the first plenary meeting took place on August 19, 1949. According to the wish of the President of the Committee of Ministers, the BV should place particular emphasis on the definition of fundamental rights in its work. Teitgen and Fyfe, however, insisted on their idea of first protecting the existing national fundamental rights internationally. The subsequent discussion remained very strong in the political community. The proposal to be satisfied with a collective guarantee of the status quo , however, did not meet with general approval and the plenary session decided to form a legal committee for further work.
Preparatory work by the Legal and Administrative Committee
The legal committee called for within the framework of the BV met for the first time on August 22, 1949. Teitgen was appointed rapporteur and the former rapporteur of the international legal committee Fyfe was appointed chairman. On the one hand, the committee took a step forward; he followed the request of the President of the Committee of Ministers and dealt with the definition of human rights, but only to the extent (but at least) that a reference to the corresponding articles of the UDHR was added to the list already available . On the other hand, he took a step back by declaring the individual contracting states to be competent to regulate the definition and implementation of the individual rights in their own area. The draft was therefore neither compatible with the Court of Justice already called for by the European Congress, for whose case law there had to be a definition of rights as a basis, nor with the basic idea of the European movement, namely to no longer leave the handling of human rights to the states themselves, but to them Internationalize protection. As a justification for not using a codification, Teitgen cited that such a project could not be improvised, but would have to be the result of many years of legal practice. The committee ended its advisory work after 14 meetings on September 5, 1949 and Teitgen presented its results, which differed only insignificantly from the objectives formulated in the Brussels Congress, in a report to the plenary of the Consultative Assembly.
Discussion in the plenary session of the Consultative Assembly
On September 7th and 8th, 1949, the Teitgen report was discussed in the plenary session of the Consultative Assembly. Occasional fears were expressed that this system of application of the respective national law by the GH, with a vague international legal limit, would make the entire guarantee illusory, but Teitgen prevailed, supported by other MPs who also wanted to achieve a result quickly . A heavily controversial point was the question of the legal protection system to be chosen (i.e. whether the basic rights should be defined or not) and the legitimation of active rights before the GH. The MP Rolin, for example, even spoke out against a new court in principle. He justified his position with the fact that there was already the International Court of Justice in The Hague, to which states could turn; the individuals, on the other hand, do not need legal protection. In this way, Rolin supported the British socialist Ungoed-Thomas, who spoke out against the possibility of individual complaints to the commission. However, Teitgen and Maxwell Fyfe, who supported both the individual complaint and the new court of justice, prevailed against Rolin and Ungoed-Thomas. A special judicial authority is necessary in order to open up legal recourse to individuals; in this regard, the provisions of the draft of the International Legal Committee have been adopted. Another hotly controversial point concerned some fundamental rights. Nine of the now twelve basic rights of the Teitgen report were accepted by the plenary without comment, but the parental rights (regarding the right to education) and the guarantee of property were rejected after lively debates. In this abridged version, the report was sent to the Committee of Ministers on September 9, 1949 with the recommendation that a draft convention should be drawn up as soon as possible.
Working in the expert panel
The MK did not follow the recommendation to start work on the convention as soon as possible. It referred the BV's report to a committee of experts set up for the purpose of drafting a convention, which only met months later from February 2 to 8, 1950 in Strasbourg . The Belgian de la Vallée-Poussin, who is also a member of the BV Legal Committee, chaired the meeting. The panel was recruited by the member states and should consist of excellent lawyers. The timing, however, was not chosen arbitrarily, but chosen with consideration for the work of the United Nations Human Rights Commission . The panel of experts should have the latest UN materials for its work. After the efforts of England and France to work together with the United Nations to achieve a catalog of fundamental rights with definitions and casuistic enumeration of the possibilities for intervention, their representatives in the Committee of Experts took up this idea again and tried to implement it at least at European level. It was argued that the strong similarities between constitutional provisions and constitutional practice made it possible to clearly define the scope and limits of every fundamental right. But even these efforts were unsuccessful, because several MPs wanted to adhere to the system of enumeration and to have options for restrictions mentioned in general and for all rights. The choice between the two systems was eventually declared a political issue for which it was believed not competent; the decision on this was left to the Committee of Ministers. On May 31, 1950, the committee submitted a report to the MK with several alternative drafts to choose from. However, on April 1, 1950, the MK was unable to make a selection and referred the decision to a committee of senior government officials.
Fundamental decision in the committee of senior ministerial officials
The committee met from June 8 to 17, 1950 under the chairmanship of the Swede Sture Petrén . So far, all indications have been in favor of simply drawing up a list of human rights, as in the UDHR 1948, but the committee gave preference to the English proposal to define the rights, whereby it based its draft largely on the definitions of the UN Human Rights Commission. Only occasionally did they have to be formulated yourself. The right to property , parental rights and the right to free elections have been removed from the draft. The committee then passed its report to the chairman of the Legal and Administrative Committee.
Assessment by the Legal and Administrative Committee
On June 23 and 24, 1950, the Legal Affairs Committee discussed the drafts of the Committee of Senior Ministerial Officials. The committee met in secret; only its results were communicated to the President of the Committee of Ministers in a letter written by Maxwell Fyfe on June 24, 1950. In it he regretted the deletion of the political rights, which had been one of the main demands of the political committee of the European Congress , but spoke in principle in favor of the chosen system of definitions . An objective observer has to admit that the work of the Legal Affairs Committee can be assessed positively.
Assessment by the Committee of Ministers
On August 3 and 7, 1950, the Committee of Ministers dealt with the draft. It was decided that the committee of senior ministerial officials should re-examine the draft in order to present uniform proposals so that the draft could be adopted during this session and forwarded to the BV. The only question of importance that remained to be decided subsequently was that of individual access to the Commission. The Committee of Ministers decided, on the one hand, that individuals should only be able to turn to the Commission and, on the other hand, that this should only be possible if the signatory state had given their consent. Maxwell Fyfe's vote was decided against on both points.
Consultation in plenary
The decision made was submitted to the BV for assessment. The draft differed significantly from the preparatory work that BV had done. The Assembly wanted certain points to be changed, the most important achievements being the inclusion in the Charter of the right to property , the right to education and the right to vote .
The deliberations took place in Strasbourg on August 14, 16 and 25, 1950. On August 25th, the draft of the European Charter of Human Rights was unanimously approved in plenary and, with the recommendation of adoption, passed on to the Committee of Ministers for adoption.
Decision of the convention by the Committee of Ministers
However, these proposals were rejected by the Committee of Ministers. Only the two most insignificant demands, namely first the introduction of a preamble and second the reduction of the number of signatory states necessary for the formation of the Court of Justice from 9 to 8, were accepted. The convention was signed on November 3, 1950, at the sixth session of the Committee of Ministers, essentially in the version that it had previously drawn up. However, the Committee of Ministers decided to entrust a committee of experts with the task of drafting an additional protocol that was supposed to regulate the points of property guarantee, parental rights and the guarantee of political civil rights, which were previously disputed and therefore left out of the Convention.
Signature and ratification
The ECHR is the fifth international treaty concluded by the Council of Europe. It was signed on November 4, 1950 in Rome by Belgium, Denmark, the Federal Republic of Germany, France, Ireland, Iceland, Italy, Luxembourg, the Netherlands, Norway, Turkey and the United Kingdom. Greece and Sweden also signed the convention. This happened in Paris on November 28, 1950.
According to Art. 59 Para. 2 of the ECHR, 10 of 14 ratifications (two thirds) and the deposit of the respective ratifications with the Secretary General of the Council of Europe were necessary for the Convention to come into force. If you consider that the convention plan was supported by those political groups that had a strong majority in the national parliaments, the almost three years until the necessary number of signatory states had ratified the convention seems rather long:
The United Kingdom became the first signatory to ratify the ECHR on March 8, 1951.
The Federal Republic of Germany ratified the ECHR on December 5, 1952.
The Saar - from March 30, 1950 to December 31, 1956, an associated member of the Council of Europe - followed on January 14, 1953.
Ireland ratified the ECHR on February 25, 1953.
Greece first acceded to the ECHR through its ratification on March 28, 1953 (resigned from the Council of Europe on December 31, 1970 in order to anticipate expulsion for violations of the Convention [see Colonel regime ]; ECHR expired on June 13, 1970; resumption in the Council of Europe and re-enactment of the ECHR on November 28, 1974).
With Luxembourg , which signed the convention on September 3, 1953, the requirement of ten ratifications was met and the ECHR generally entered into force on the same day.
Austria has been a member of the Council of Europe since April 16, 1956 and signed the ECHR on December 13, 1957, together with the Additional Protocol. Domestically, the convention came into force on September 3, 1958, i.e. on the 5th anniversary of the general entry into force of the ECHR. In addition, Austria has included the ECHR in its constitution .
Today almost all European states have signed and ratified the Convention on Human Rights (exception: Belarus and the Vatican - represented by the Holy See in its interstate relations ; these states are not members of the Council of Europe ).
The further development of the European Convention on Human Rights through additional protocols
In the half century of its existence, the ECHR has been amended and supplemented in a number of protocols. The changes affected both substantive and formal law. New fundamental rights were introduced with Protocols 1, 4, 6, 7, 12 and 13. The other protocols regulated questions of competence or created new competencies.
Additional protocols relating to substantive provisions
The fundamental rights guaranteed by the Convention were (and are) not a complete catalog. While the questions about the guarantee system, the individual delimitation and the form of legal protection were subject to change in the course of the work on the Convention, the selection of rights is the first List of the European Movement remained relatively constant until the Convention was finalized. This can be explained by the character of the classical-liberal basic rights, since only these, in contrast to the economic-social basic rights, were regarded as justiciable. It was emphasized again and again that this selection does not mean elimination or evaluation, but that only a first step is taken, which should be followed by others. Six of the fourteen protocols to date took such steps and added new fundamental rights to the convention. In this development one can clearly see the tension between the two fundamental positions within the ECHR; On the one hand, there are enthusiasts who would like to secure social and economic rights with the help of the convention, and on the other hand, those who fear that the protective instruments of the convention will be weakened.
Additional protocol (1st protocol) of March 20, 1952
The convention had been adopted, but had not even entered into force when the Council of Europe was already tackling the guarantee of the disputed fundamental rights. Since the BV had not reached an agreement on the disputed points - guarantee of property , parental rights with regard to the right to education , right to free elections - its legal and administrative committee set up a subcommittee that was entrusted with the development of the three rights. Both the legal committee and the plenary session of the BV subsequently accepted its results. However, the Committee of Ministers had also set up a committee to discuss amendments to the statutes and entrusted it with drawing up an additional protocol. The committee deliberated until November 28, 1951 and then submitted its results to the Consultative Assembly for opinion. Since the United Nations did not yet have a definition of the disputed fundamental rights and rather dealt with it itself at its 7th session in April and May 1951, the Committee of Ministers had to work it out independently. The committee's proposals were sent back several times with the condition that they would find formulations that all members of the Council of Europe could agree to. At the request of the Advisory Assembly, after the work had been completed, the Committee of Experts submitted its draft to the Legal and Administrative Committee of the Advisory Assembly, which agreed to the definition of property rights, but proposed amendments to the two other rights. After the plenary session of the BV had also adopted the proposals, the Committee of Ministers incorporated them into the final version of the additional protocol.
The additional protocol added the right to respect for property (Art. 1), the right to education (Art. 2) and the right to free and secret elections (Art. 3) to the fundamental rights already protected under the Convention . It was opened for signature in Paris on March 20, 1952 and came into general effect on May 18, 1954. Switzerland has only signed it so far, while Germany and Austria ( ) also ratified it.
4. Minutes of September 16, 1963
The 4th Protocol took a further step in the proclaimed addition to the Convention to include new fundamental rights. It was prepared by a committee of experts in the Council of Europe. As is so often the case, the initiative for this came from the plenary session of the Consultative Assembly, which decided on January 22, 1960 to make a recommendation to the Committee of Ministers. On the one hand, she called for the aforementioned committee to draft another additional protocol to cover certain political rights that were not protected by the parent convention or the additional protocol. On the other hand, she called for additional rights, such as the right to recognition as a legal person, to general equality before the law and to the protection of national minorities. The committee should draw on the preparatory work of its own legal committee. The Committee of Ministers followed the recommendation of the BV and set up the committee on March 22, 1960, which was then chaired by Ugo Caldarera in seven sessions, for the first time from November 7th to 11th, 1960 and lastly from February 11th to 16th, 1963 , drafted a protocol. On March 5, 1962, a joint meeting of members of the Committee of Experts and the Legal Committee of the BV took place in which the minutes were discussed.
On the one hand, the protocol prohibits deprivation of liberty due to debts in order to enforce contractual obligations (Art. 1), guarantees freedom of movement within the state by giving the right to leave any country (Art. 2, Paragraph 2), to enter one's own country (Art. 3, para. 2) and the prohibition of expulsion from the own country (Art. 3, par. 1) statuiert . It also prohibits collective expulsions of foreigners (Art. 4). The fundamental rights required by the BV, which go beyond this, have been deleted for fear that this would damage the acceptance of the convention. The protocol was opened for signature by the Committee of Ministers in Strasbourg on September 16, 1963 and came into general effect on May 2, 1968. Germany and Austria ( ) signed and ratified it, but Switzerland has not yet signed it.
6. Minutes of April 28, 1983
The death penalty has been in question for over 200 years. Internationally, serious efforts to abolish the death penalty only began with the establishment of the United Nations. The basic convention of the ECHR 1950 already contained the right to life, but the “peculiar formulation” of the article made far-reaching exceptions in favor of state authority, among other things. a. imposing the death penalty, firmly. The reason for this was that two parts of the article were composed of different stages in the work of the UN Human Rights Commission, both of which used a different system of guarantees.
The first impetus to ban the death penalty through the Convention came from Amnesty International, for example at the World Conference against the Death Penalty, which was held in Stockholm in 1977. Influenced by this, the then Austrian Justice Minister Christian Broda proposed at the European Justice Ministers' Conference in 1978 that the question of the death penalty be included in the work program of the Council of Europe. He opposed the view that the death penalty was a legitimate means of democracy's self-defense against terrorists. The Committee of Experts on Criminal Law and Human Rights then dealt with the possibility of expanding the right to life laid down in the ECHR. In 1980 the PA also demanded by a large majority the abolition of the death penalty and an amendment to the ECHR in the sense of prohibiting it. As a result, on September 25, 1981, the Committee of Ministers gave the CDDH the task of drawing up a protocol that would regulate the abolition of the death penalty in peacetime. In terms of content, the protocol only recorded the abolition of the death penalty in peacetime; for acts committed in times of war or in imminent danger of war, the death penalty could still be imposed. At least the protocol already contained a prohibition clause against possible reservations. The protocol was the world's first legally binding international treaty to abolish the death penalty.
The Committee of Ministers adopted the minutes at its meeting on December 10, 1982 and opened them for signature on April 28, 1983. The protocol generally came into force on March 1, 1985. Austria ratified it in. Of the member states of the Council of Europe, only Russia has not ratified the protocol so far.
7. Minutes of November 22, 1984
On December 16, 1966, the UN General Assembly passed the International Covenant on Economic, Social and Cultural Rights . The Council of Europe soon realized that problems could arise from the coexistence of the two treaties.
The Committee of Ministers therefore instructed a committee of experts in October 1967 to identify possible problems. After a year of research, the committee forwarded its report to the MK on the differences between the fundamental rights guaranteed by the two treaties. The Human Rights Conference met in Vienna from October 18-20, 1971. The PA then declared, based in part on the results of the conference, that the task of the Council of Europe was "not only the maintenance but also the further realization of human rights and fundamental freedoms". She called for the catalog of fundamental rights to be expanded. The report of the expert committee subsequently served as the basis for the work of a sub-committee formed in 1976 and for further elaboration by the expert committee. During the work on the protocol, the latter paid particular attention to the fact that only those rights were included in the draft that could actually be guaranteed by the control system inherent in the ECHR. In the further development, the Coordinating Committee for Human Rights completed the work and submitted the draft to the Committee of Ministers, which approved it at its 374th meeting.
The 7th Protocol grants the right to procedural protective regulations in the event of a foreigner's expulsion from the territory of a state, the right of a convicted person to review the judgment or the sentence by a higher court, the right to compensation in the event of wrongful judgments and the general legal principle of " ne bis in idem ”. It also postulates equal rights and obligations for spouses. The Protocol was opened for signature in Strasbourg on November 22, 1984 and entered into force on November 1, 1988. Austria and Switzerland have ratified, Germany has only signed it so far.
12. Minutes of November 4, 2000
The basis of human rights as we understand them today is equality for all. Provisions on this can be found in the UDHR, the International Covenant on Economic, Social and Cultural Fundamental Rights and many other international treaties that deal with human rights. This provision is made in Art. 14 of the ECHR. Compared to other international treaties, however, the scope of this article was limited because, unlike the corresponding provisions of other treaties, it did not contain a fundamental prohibition of discrimination, but merely a prohibition of discrimination in the context of the fundamental rights granted by the convention. Art. 5 of the 7th Protocol established equality between spouses, but there was no general prohibition of discrimination. However, it must be added that this was by no means unintentional. The justiciability of the ECHR should be guaranteed by a strict definition of the individual rights.
Since the sixties of the last century, attempts have been made to establish a fundamental prohibition of discrimination in a protocol. In addition to the Parliamentary Assembly, the Commission against Racism and Intolerance (ECRI), the Steering Committee for Equality between Women and Men (CDEG) and the Steering Committee for Human Rights (CDDH) had a major influence on its creation. Since 1990, the ECRI and the CDEG have been working on proposals to expand the existing prohibition of discrimination, with the CDEG devoting the bulk of its work to the fundamental right to equality between men and women, while the ECRI mainly dealt with racially justified discrimination. Subsequently, the Committee of Ministers gave the Executive Committee for Human Rights the task of preparing a report on the possibilities for innovation in Article 14, on the basis of which the Committee of Ministers, at its 622nd meeting from March 10 to 11, 1998, gave the CDDH the task of drafting a protocol work out. The draft now provided for a general ban on discrimination. The new protocol lifted the previous restriction and stipulated that no one, under any pretext, should be discriminated against by a public authority.
The Committee of Ministers adopted the minutes at its 715th meeting on June 26, 2000 and opened them for signature on November 4, 2000 in Rome. It came into general effect on April 1, 2005. Germany, Liechtenstein and Austria have signed it, but have not yet ratified it. Switzerland has not yet signed it.
13. Minutes of May 3, 2002
Although the 6th Protocol abolished the death penalty in peacetime, there was a national and international trend towards a further reduction in the death penalty, also in times of war. The Parliamentary Assembly, for example, developed the habit of allowing states wishing to join the Council of Europe to guarantee that the death penalty would be eliminated from their national legal systems.
Both the second summit of the heads of state and governments of the member states of the Council of Europe, which took place in October 1997, and the European Ministerial Conference on Human Rights, which took place from November 3rd to 4th, 2000, were both in favor of a general abolition of the death penalty Rome was held particularly significant. If the Committee of Ministers had initially refused to work out a protocol, a draft put forward by Sweden was able to change the committee's mind, so that at its meeting from 10-11 January 2001 it instructed the CDDH to prepare a draft.
The Protocol now goes one step further than Protocol No. 6 and prohibits the death penalty in all cases, including crimes committed during times of war or when there is a threat of war. As in Protocol No. 6, no deviations or reservations are permitted with regard to the Protocol. The protocol was opened for signature in Vilnius on May 3, 2002 and entered into force on July 1, 2003. Austria ratified it in Armenia has signed this protocol but has not yet ratified it. Azerbaijan and Russia have not yet signed the protocol..
Additional protocols regarding procedural provisions
Nine of the so far fifteen protocols amended or supplemented procedural provisions relating to the organs intended to enforce the Convention. In the historical development of the Convention, two lines of development in particular can be traced very nicely, which came together with the entry into force of the 11th Protocol. One of them concerns the expansion of the convention to include new signatory states and the associated steadily growing workload, which made it necessary several times to reform the complaint system. The other concerns the right of the individual to appeal directly to the European Court of Human Rights (ECHR). Because of the organs provided for by the ECHR, the European Commission for Human Rights (EKMR) should initially be responsible for individual complaints. However, this had no judicial function, but was designed exclusively as an investigative and mediating body. Only the Commission and the signatory states could address the ECHR directly. The individual had to take the detour via the EKMR with his individual right of appeal. On the one hand, this represents an unprecedented innovation in international law, on the other hand, this allocation of competencies was merely a compromise, considering that a court of justice with the possibility of individual complaints was set up at the European Congress. At least at the beginning of the 1990s a first step was taken towards a real right of individual complaints. The Council of Europe and with it the ECHR, initially described as “peculiarly constructed”, have developed into a recognized instrument for protecting human rights. It has also made the significant contribution towards the integration of Europe that the European Congress had already aimed at. Soon it was decided to improve the position of the ECHR and an initial reform of the control system became necessary. The number of signatory states steadily increased over time. Two new states signed the convention in the 1960s, which meant that the original rotation system for judges' posts could no longer be maintained. The ECHR was already enjoying growing acceptance in Europe at that time; This was also the case in Austria after the Federal Constitutional Legislature had established the constitutional status of the ECHR ex tunc in 1964. In the 1970s and 1980s, six states again initialed the convention. Because of the increasing awareness and popularity of the individual complaint, especially in the old member states, and the additional complaints from the younger contracting states, the work could only be done slowly by the organs. A reform of the complaints system brought relief for some time. In order for the supervisory bodies to be able to reach decisions more quickly, it was decided to replace the two-thirds majority that had been necessary up until then with a simple majority. In the 1990s, it was recognized that the reforms that had been implemented would not be enough. The complaints system was again, this time fundamentally reformed and at the same time - here the two developments converge - a real right of individual complaint was created before the ECHR.
2. Minutes of May 6, 1963
Like every contract, the ECHR also needs to be interpreted in order to arrive at its regulatory content. If it was difficult enough to introduce the Court of Justice at all (with minimal competence) against many negative voices, the Court had not yet been granted the right to perform this important task. However, on January 22, 1960, the Consultative Assembly of the Council of Europe recommended that the ECHR should be given the power to decide on the correct interpretation of the Convention. The Committee of Experts, which was brought in by the Committee of Ministers on September 20, 1960, came to the conclusion that such an expansion of competencies was fundamentally recommended. Subsequently, a draft protocol was drawn up in cooperation between the Advisory Assembly, the Committee of Experts and the Committee of Ministers, which somewhat weakened the Advisory Assembly's proposal. On the one hand, the Court should not be allowed to deal with questions which go beyond the mere interpretation of the text of the Convention, nor those which might tend to alter the substance of the Convention. On the other hand, no questions should be touched in which politics should be included. The Protocol was opened for signature in Strasbourg on May 6, 1963 and came into general effect on September 21, 1970. It has been signed and ratified by all member states. However, since the 11th Protocol came into force on November 1, 1998, it has become obsolete.
3. Minutes of May 6, 1963
As early as the 1960s it was recognized that the control system of the ECHR was too cumbersome. The EKMR had drawn up suggestions for improving this problem, which it submitted to the Committee of Ministers. On the one hand, a seven-person sub-commission should be set up, which should be entrusted with the two tasks of reviewing complaints and bringing about amicable agreements. On the other hand, complaints that have already been granted should be able to be rejected by unanimous decision if it was subsequently established that there was a reason for inadmissibility. In addition, the Commission proposed that legal assistance should be given to individuals if it was found that a complaint was well founded, and that the Commission should take action towards prosecution in the event of perjury by witnesses or experts. The proposals were discussed by the committee of experts from June 1 to 7 and October 22 to 27, 1962, chaired by Ugo Caldarera, and recorded in draft minutes at the last meeting in October; however, it only reflected the committee's first two proposals. The Protocol was signed in Strasbourg on May 6, 1963 and entered into force together with Protocol No. 2 on September 21, 1970. It has been signed and ratified by all member states. Since the entry into force of the 11th Protocol, however, it has become obsolete.
5. Protocol of January 20, 1966
The rotation system of the Court of Justice and the Commission at that time provided that half of the members of the ECHR and one third of the members of the ECHR were to be re-elected every three years. However, when new states, such as Cyprus in 1961 or Malta in 1966, signed the ECHR between the electoral terms and thus new MPs joined the Court of Justice and the Commission, this system could no longer be observed. As a result, for example, four ECHR judges were newly elected in 1965, compared to seven in 1968.
In order to overcome this inadequacy of the old regulation, the Committee of Ministers instructed the Expert Committee on Human Rights to work out a new regulation. The result was subsequently endorsed by both the Court of Justice and the Commission. The Expert Committee then decided at its 11th meeting from October 6th to 10th to submit a recommendation to the Committee of Ministers with the proposals drawn up.
The 5th Protocol changed some provisions concerning the term of office of the members of the ECMR and the ECHR. The main innovation was that the Committee of Ministers could decide before each subsequent election that the term of office of one or more of the members to be elected should not be six years, although this term of office could not be longer than nine or shorter than three years. The changes ensured a functioning exchange system again.
The Protocol was opened for signature in Strasbourg on January 20, 1966 and entered into general effect on December 20, 1971. It has been signed and ratified by all member states. Since the entry into force of the 11th Protocol, however, it has become obsolete.
8. Minutes of March 19, 1985
On April 27, 1978, the Committee of Ministers of the Council of Europe declared in a report that it was extremely important to create an effective control system in order to be able to monitor the implementation of the obligations which the contracting states had assumed by signing the ECHR. In 1980 the ECMR established that its jurisprudence and that of the ECHR were about to take on the role of a common European constitutional jurisdiction, but that this development would take a long time, but would represent a major step towards European unification. However, the workload of the organs of the ECHR had reached a level that made both the signatory states and the polluted bodies themselves seriously doubt that they would be able to cope with the workload in the future. MEP Muheim pointed this out to the Parliamentary Assembly in his report and particularly criticized the length of the proceedings before the EKMR. On the basis of this report, the PA recommended that a protocol be drawn up in order to speed up the procedure, which should enable, inter alia, a division of the EKMR into senates for dealing with individual complaints. The European Ministerial Conference on Human Rights held in Vienna on March 19 and 20, 1985, at which the question of merging the Commission and the Court of Justice was raised for the first time on a political level, dealt with this subject. In its recommendation, the PA explicitly referred to the proposals of the conference. Subsequently, the Steering Committee for Human Rights (CDDH) and its subordinate Committee of Experts for the Improvement of the Procedure under the ECHR (DH-PR) worked out a draft of the protocol, with the Steering Committee drafting the final draft.
With the 8th Protocol, the ECMR was given the authority to set up its own chambers consisting of at least seven members in order to review individual complaints that can be dealt with on the basis of established case law or that do not have serious questions with regard to the interpretation or application of the Convention raise. The Committee of Ministers adopted the minutes at its 379th meeting from January 17 to 25, 1985. It was opened for signature on March 19, 1985 in Vienna and came into general effect on January 1, 1990. It has been signed and ratified by all member states. Since the entry into force of the 11th Protocol, however, it has become obsolete.
9. Minutes of November 6, 1990
Already at the European Congress in May 1948 there was agreement that an individual entitled to do so should be granted access to the planned court. This proposal was also reflected in the ECHR draft of the International Legal Committee, but was rejected again in the discussions of the member states. The argument was vague on the grounds that "the interests of the individual would always be protected either by the Commission or by the State party". A compromise on the question of the individual complaint was only reached after long negotiations. The EKMR began its work on May 18, 1959.
The discussion about the individual complaint was revived in 1972 by the Expert Committee for the Further Development of Human Rights. Both the ECHR and the ECMR, which had been called upon by the committee to deliberate on this question, in 1974 strongly advocated the possibility for the individual to contact the ECHR directly. A committee of experts then drew up a short and medium-term work plan commissioned by the Committee of Ministers to implement the required right to individual complaints. In December 1976 the committee adopted a series of recommendations which were forwarded to both the Committee of Ministers and the ECHR, but which left a decision on individual access. In any case, the President of the ECHR welcomed the draft and assured his approval of the proposals made. The steering committee for human rights took over the work, inter alia also the medium-term work plan, and stated that access to the ECHR should only be made available to individuals if the majority of national governments accepted this. The committee also determined that there was no majority at the time and put the question of the individual complaint on hold for the time being. It was not until 1985, at the ministerial conference on human rights that was held in Vienna from March 19-20, that there were renewed discussions about the right of individual complaints. Subsequently, the question was also taken up and discussed by the Colombo Commission. The final version of the minutes was drawn up by the CDDH and submitted to the Committee of Ministers, which adopted the minutes at its 446th meeting on October 23, 1990.
The final version of the protocol stipulated that the individual could address his complaint directly to the ECHR, provided that an ECMR report dealt with the request of the person concerned. The 9th Protocol was opened for signature on November 6, 1990 in Rome and entered into force on October 1, 1994. It was signed and ratified by Germany, Austria and Switzerland. Since the entry into force of the 11th Protocol, however, it has become obsolete.
10. Minutes of March 25, 1992
So far, decisions of the respective control bodies of the ECHR, i.e. the Commission, Court of Justice and Committee of Ministers, had to be decided with the help of a two-thirds majority. In some cases, this led to the problem that no decision could be made at all. As early as July 1982, at the 8th DH-PR meeting, the proposal was made to reduce the two-thirds majority required to pass resolutions to a simple majority. In 1985 this idea was taken up again at the first ministerial conference on human rights, which was held in Vienna, and a draft of the protocol was subsequently developed within the framework of DH-PR by September 1991, which the CDDH also endorsed.
The 10th Protocol now reduced the aforementioned two-thirds majority to a simple majority in the event that the Committee of Ministers was called upon to decide on a violation of the Convention that was not passed on to the ECHR. The protocol was opened for signature in Strasbourg on March 25, 1992, but subsequently no longer came into force.
11. Minutes of May 11, 1994
Although the productivity of the ECMR has steadily improved, the Commission has not been able to keep up with the growing number of complaints submitted. If a complainant turned to the convention bodies because the proceedings were taking too long, he had to expect that his complaint would not be subjected to an initial examination by the commission until one and a half years after it was raised. The average length of proceedings before the ECHR in 1993 was five years and eight months; In addition to the growing number of proceedings, this was primarily due to the increase in complex litigation proceedings.
A reform proposal, which now seemed necessary, had already been discussed during the drafting of the 8th Protocol, namely the merging of the Court of Justice and the Commission. Although this idea has been examined again and again within the DH-PR and the CDDH since then, it did not find a majority for a long time. This changed in 1990 with the collapse of the Eastern Bloc. The accession of new reform states was expected, which made an amendment to the control mechanism for the protection of fundamental rights appear urgent. In November 1991, at its 89th session, the Committee of Ministers also stated that absolute priority should be given to improving the control mechanisms of the ECHR. As a result, two reform models emerged; on the one hand the so-called "single court" model, which u. a. supported by Austria, provided the Court of Justice as the only supervisory body, and on the other hand the Dutch-Swedish model, which however could not prevail.
The 11th Protocol completely renewed the legal protection within the ECHR, so that since then one can speak of a judicial control mechanism of the convention states. Since then, case law within the Convention has only been guaranteed by the ECHR, as the new permanent court. The individual complaint submitted is only subjected to the preliminary examination of a judges' committee of the ECHR in order to weed out obviously inadmissible complaints. The judges now exercise their function full-time and all year round. Since the protocol entered into force, the jurisdiction of the ECHR has been compulsory for all signatory states.
The Protocol was opened for signature in Strasbourg on May 11, 1994 and came into general effect on November 1, 1998. It has been signed and ratified by all member states.
14. Minutes of May 13, 2004
Although the 11th Protocol came into force in 1998, which comprehensively reformed the legal protection system of the Convention with the aim of keeping the ECHR capable of acting for years, alarming signals have come from representatives of the ECHR since the turn of the millennium. In particular, Luzius Wildhaber, President of the ECHR since July 24, 1998, pointed out the growing number of complaints, which the ECHR found it difficult to cope with. This can u. a. can be traced back to the fact that the "filter function" that formerly belonged to the ECMR had now been transferred to the ECHR, which meant that a significant amount of the working time of the judges of the ECHR was tied to examining the admissibility of the complaints. In addition, the theoretically possible tension between the two European courts of law was recognized, which would most simply be resolved by the Community's accession to the ECHR. An opinion of the ECJ, the European Court of Justice in Luxembourg, came to the conclusion that changes in the ECHR would have to be made in order to allow accession.
The European Ministerial Conference on Human Rights stated at its meeting on November 3rd and 4th, 2000 that there was an urgent need to bring about changes in the control mechanisms of the ECHR. On December 7, 2000, the Committee of Ministers set up an “Evaluation Group” to deal with the problem; the CDDH also set up a committee to examine the effectiveness of the ECHR. In the middle of 2003 the MK set up a "Drafting Group" which, based on the findings of the two committees, was supposed to work out a 14th protocol to the ECHR in order to increase the effectiveness of the ECHR. Of the innovations that the 14th Protocol will create when it comes into force, one thing above all has to be emphasized: This will make EU accession legally possible. Another realpolitical innovation is the introduction of a new inadmissibility fact in order to reject individual complaints a limine to an even greater extent than before . The introduction of single judge decisions is intended on the one hand to reduce the duration of the proceedings and on the other to ensure that all complaints are dealt with.
The protocol was approved by the Committee of Ministers on May 12, 2004 and opened for signature on May 13, 2004 in Strasbourg. After Russia had already signed the protocol on May 4, 2006, it - as the only member state - did not ratify for a long time. By resolution of January 15, 2010, the State Duma approved ratification with 392 of 450 votes. On February 18, 2010, the ratification document was finally deposited with the Secretary General of the Council of Europe. The 14th Protocol came into force on June 1, 2010 according to its Article 19.
(Makeshift) Protocol 14 to May 27, 2009
In order to relieve the Tribunal until Protocol No. 14 came into force, Protocol No. 14 bis was drawn up. It implemented two procedural provisions of Protocol No. 14 for the ratifying states:
- A single judge can dismiss clearly inadmissible complaints (previously this was done by a committee of three judges).
- Committees with three judges can declare complaints admissible and decide on the merits in clearly justified cases and repeated cases if there is already established case law of the Court of Justice (previously this was done by a chamber with seven judges).
The provisions of Protocol No. 14 bis only applied to proceedings from those states for which the Protocol had entered into force. On the part of the Court of Justice, an efficiency increase of 20 to 25% was expected. According to Article 9 of the Protocol, Protocol 14 bis expired on the day Protocol 14 entered into force, i.e. June 1, 2010.
15. Minutes of June 24, 2013
The fifteenth protocol ( BGBl. 2014 II p. 1034, 1035 ) again aims to increase procedural efficiency. The following regulations have been introduced:
- The subsidiarity principle is clearly emphasized. Complaints must therefore initially be unsuccessful at national level.
- The complaint must be filed within four (previously: six) months after the final national decision.
- The characteristic “considerable disadvantage” (meaning the ability to be a victim) has been redrafted.
- No objection can be raised against the assignment of the case to the Grand Chamber by a Chamber.
- The maximum age of judges has been revised: Candidates may not have reached the age of 65 on the day the list is sent to the Parliamentary Assembly.
16. Minutes of October 2, 2013
The 16th Protocol gives the supreme courts or courts of justice of the contracting parties the right to apply to the European Court of Human Rights for a legal opinion on the interpretation or application of the ECHR and its protocols. The protocol entered into force on August 1, 2018 after it was ratified by ten signatory states (Albania, Armenia, Estonia, Finland, France, Georgia, Lithuania, San Marino, Slovenia and Ukraine).
- African Charter of Human Rights and the Rights of the Peoples
- American Convention on Human Rights
- Charter of Fundamental Rights of the European Union
- European data protection convention
- Human rights treaty
- Rules of Procedure of the European Court of Human Rights
- Ed Bates: The Evolution of the European Convention on Human Rights. From its Inception to the Creation of a Permanent Court of Human Rights. Oxford University Press, Oxford 2011, ISBN 978-0-19-920799-2 .
- Jochen A. Frowein , Wolfgang Peukert: European Convention on Human Rights. 3. Edition. Engel, Kehl am Rhein 2009, ISBN 978-3-88357-145-4 .
- Christoph Grabenwarter , Katharina Pabel : European Convention on Human Rights. 5th edition. Beck / Helbing Lichtenhahn / Manz, Vienna / Munich / Basel / Vienna 2011, ISBN 978-3-406-62764-4 .
- Thomas Haug : The importance of the ECHR in Germany and its interpretation by the ECHR. In: AfP 3/2016 , pp. 223-227.
- Wolfram Karl (Ed.): International Commentary on the European Convention on Human Rights. Heymann, Cologne / Berlin / Bonn / Munich 1994 ff (loose-leaf supplement), ISBN 3-452-19935-5 .
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- Karpenstein / Mayer, Convention for the Protection of Human Rights and Fundamental Freedoms , ECHR Commentary, 2nd edition 2015, CHBECK, ISBN 978-3-406-65861-7
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- Rainey, Wicks, and Ovey: The European Convention on Human Rights. Oxford University Press 2017, ISBN 978-0-19-876774-9
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- Convention for the Protection of Human Rights and Fundamental Freedoms in the version of Protocol No. 11 (ECHR), German version ( English version , French version ; alle conventions.coe.int)
- Page of the Treaty Office of the Council of Europe on the ECHR (German)
- Homepage of the Austrian Institute for Human Rights: Information on the ECHR and archive of German translations of decisions of the ECHR
- Humanrights.ch: Overview of the ECHR
- Gudula Geuther : From sleeping beauty to the foundation of Europe . In: dradio Background , September 2, 2013.
References and comments
- Christoph Grabenwarter : “Legal framework for the relationship between the EU and the Council of Europe from the perspective of the Council of Europe and the role of the member states”. In: ZaöRV 2014, pp. 419–444 (439f.). ECHR, cf.
- ECHR Öztürk v. Germany, judgment of February 21, 1984, Series A No. 73
- ECHR Tyrer v United Kingdom, judgment of April 28, 1978 Series A No. 26, § 31 ( Memento of January 19, 2012 in the Internet Archive ) (PDF; 82 kB)
- See e.g. B. ECHR Salduz v Turkey, judgment of the Grand Chamber of November 27, 2008, No. 36391/02, § 50
- Artico v Italy, judgment of May 13, 1980, Series A No. 37, § 33
- ECHR Papamichalopoulos u. a. against Greece, judgment of June 24, 1993, Series A No. 260-B (PDF; 28 kB)
- LSVD ( Memento of October 12, 2011 in the Internet Archive )
- LSVD cf. u. a. Judgment of the ECHR ECHR, judgment v. December 21, 1999 - 33290/96 (case Salgeiro da Silva Mouta v. Portugal)
- BGH in NJW 1993, p. 999f ( Memento from August 3, 2012 in the web archive archive.today )
- LSVD cf. u. a. ECHR, ruling v. January 30, 1981 - 7525/76 (Dudgeon v. United Kingdom case; Series A No. 45; NJW 1984, 541; EuGRZ 1983, 488) ( Memento of October 12, 2011 in the Internet Archive )
- ECHR McCann v United Kingdom, judgment of September 27, 1995, Series A No. 324, § 161
- cf. ECHR Yasa / Turkey, judgment of September 2, 1998, Rep. 1998-VI, § 100
- see also: Interpretation of Article 3 of the European Convention on Human Rights .
- Article 6, right to a fair trial emrk.at, accessed on April 7, 2019
- Judgment of the IV. Section of the European Court of Human Rights (ECHR) of April 5, 2016, Az. 33060/10 , in the Blum v. Austria case, NJW 2017, 2455
- Karpenstein / Mayer, Convention for the Protection of Human Rights and Fundamental Freedoms , ECHR Commentary, 2nd edition 2015, No. 60 ff. On Art. 6 ECHR
- Jens Meyer-Ladewig / Martin Nettesheim / Stefan von Raumer: European Convention on Human Rights. Hand comment . 4th edition 2017, no. 170 ff. On Art. 6 ECHR
- Rainer Hofmann : The right to a fair trial, University of Frankfurt am Main, accessed on April 7, 2019
- ECHR March 25, 1993 - 14307/88, Rn. 52 Kokkinakis / Greece
- Meyer-Ladewig / Harrendorf / König, in: Meyer-Ladewig / Nettesheim / von Raumer (ed.), NOMOS commentary on the European Convention on Human Rights, 4th edition, Baden-Baden 2017, N 5 on Art. 7 ECHR.
- Meyer-Ladewig / Nettesheim, in: Meyer-Ladewig / Nettesheim / von Raumer (ed.), NOMOS Commentary on the European Convention on Human Rights, 4th edition, Baden-Baden 2017, N 7 on Art. 8 ECHR.
- Meyer-Ladewig / Nettesheim, in: Meyer-Ladewig / Nettesheim / von Raumer (ed.), NOMOS Commentary on the European Convention on Human Rights, 4th edition, Baden-Baden 2017, N 28 ff. On Art. 8 ECHR.
- Idem. N 54 f. to Art. 8 ECHR
- Decision of the ECHR (III. Section) of January 12, 2016 (complaint No. 48074/10) in the Rodriguez Ravelo case against Spain with a comment by Franz Salditt
- Christoph Grabenwarter / Katharina Pabel, European Convention on Human Rights: a study book , 5th edition, 2012, p. 521 with further references.
- BGBl. 2002 II p. 1054 .
- BVerfG, decision of March 26, 1987, Az. 2 BvR 589/79, Rn. 39, BVerfGE 74, 358 = NJW 1987, 2427 = MDR 1987, 815 = NStZ 1987, 421 = StV 1987, 325: “Laws (…) are also to be interpreted and applied in accordance with the international legal obligations of the Federal Republic of Germany, even if they were issued later than a valid international treaty "
- Pending Cases Global Database ( Memento of May 28, 2009 in the Internet Archive ).
- BVerfG, decision of October 14, 2004, Az. 2 BvR 1481/04, BVerfGE 111, 307 - ECHR decisions.
- See the statement by Wildhaber in: Karl Otto Sattler: Power struggle of the red and blue-black robe wearers from Karlsruhe and Luxemburg. Federal Constitutional Court versus Council of Europe Court of Justice . In: The Parliament. No. 52-53, December 20, 2004.
- See the underlying judgment Pakelli v. Germany , judgment of April 25, 1983, No. 8398/78; German translation in ECHR-E 2, 271 (PDF; 109 kB).
- Judgment of the ECHR (Grand Chamber) of June 8, 2006, 75529/01, Sürmeli ./. Germany
- HFR 12/2006 Gertrude Lübbe-Wolff, ECtHR and national jurisdiction - The Görgülü Case
- Karl-Otto Sattler: The power of judges. In: The Parliament No. 28 - 29/11 July 2005.
- 10/05/07 Skugor v. Germany case (no. 76680/01) (paragraph 48).
- BFH, judgment of December 11, 2013, Az. IR 4/13, full text .
- BVerwG, decision of February 27, 2014, Az. 2 C 1.13, full text .
- BVerwG, press release 16/2014 .
- Constitution of the State of Brandenburg . Bravors.brandenburg.de, accessed June 14, 2015.
- BMJ individual complaint No. 319/08
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- BVerfG, decision of December 21, 1977, Az. 1 BvL 1/75, 1 BvR 147/75, BVerfGE 47, 46 - Sex education.
- Federal Constitutional Law of March 4, 1964, with the provisions of the Federal Constitutional Law in the version of 1929 on international treaties are amended and supplemented, Federal Law Gazette No. 59/1964
- VfGH March 14, 2012, U 466/11, U 1836/11
- BGE 139 I 16 E. 5.1: "In the event of a conflict of norms between international law and later legislation, the jurisprudence generally assumes the primacy of international law; according to Schubert's practice , the right is reserved for the legislature to expressly conflict with international law accepted (BGE 99 Ib 39 E. 3 and 4 ["Schubert"]; BGE 125 II 417 E. 4d P. 425 ["PKK"]; 133 V 367 E. 11.1.1; BGE 136 III 168 E. 3.3.4). The case law has the application of the "Schubert practice" in the event of a contradiction to human rights conventions (BGE 125 II 417 E. 4d; BGE 131 II 352 E. 1.3.1; BGE 136 II 241 E. 16.1) No; the question was also left open in one individual case (BGE 136 III 168 E. 3.3.4). In a recent decision on the problem, the Federal Supreme Court confirmed the primacy of international law or its commitment to it (BGE 138 II 524 E. 5.1 ): If there is a real conflict of norms between federal and international law, then the international law is fundamental Switzerland's obligation (BGE 135 II 243 E. 3.1 p. 249; BGE 125 II 417 E. 4d p. 425); this even applies to agreements that do not deal with human or fundamental rights (BGE 136 II 241 at 16.1 p. 255; BGE 122 II 485 at 3a p. 487; see also MÜLLER, Minarettverbot, loc. cit., margin no . 10 and 17). The stated priority also applies to later, i.e. H. Federal laws that have come into force in accordance with international law; the lex posterior rule does not apply in the relationship between international and state law (BGE 122 II 485 at 3a p. 487). Switzerland cannot invoke its domestic law to justify non-performance of a contract (Art. 5 Para. 4 BV; Art. 27 of the Vienna Convention of 23 May 1969 on the Law of Treaties [VRK; SR 0.111]; see BGE 125 II 417 E. 4d p. 424 f .; BGE 122 II 234 E. 4e p. 239; also BGE 116 IV 262 E. 3b / cc p. 269; BGE 117 IV 124 E. 4b p. 128 ). Accordingly, federal legislation contrary to international law regularly remains inapplicable (BGE 125 II 417 at 4d p. 425; BGE 128 IV 201 at 1.3 p. 205; cf. also HOTTELIER / MOCK / PUÉCHAVY, op. Cit., P. 12 ff. ; MÜLLER, Minarettverbot, loc. Cit. 19 et seq . ; COTTIER / HERTIG, op. Cit., Pp. 11, 17, 18 et seq., 24). "
- judgment of the Federal Court 5A_708 / 2010 of 5 November 2010 E. 1.4. The various requests for a declaration cannot be accepted due to a lack of legally protected interest (Art. 76 Para. 1 lit. b BGG). In order to enforce this request, the complainant has an effective legal remedy within the meaning of ECHR to take action under Art. 429a ZGB, which gives her the right to compensation and, if the violation is serious, to satisfaction. In this liability process, too, it is possible and permissible to establish unlawfulness as "another type of satisfaction" (judgment of the Federal Court 5A_432 / 2010 of July 26, 2010 at 1 and 2; BGE 118 II 254 No. 52; judgment of the ECHR in the sense of BA against Switzerland of April 6, 2000, summary in: VPB 64/2000 No. 134, p. 1323). In the case law of Switzerland. Federal Supreme Court on Art. 429a ZGB does not find a single positive judgment.
- Association against animal factories and WEF 01
- Liechtenstein became the 22nd member of the Council of Europe on November 23, 1978.
- StGH 1997/19, LES 1998, 269 [272 adult 2.1]
- See StGH 1995/21, LES 1997, 18 [28 Erw. 6.1]
- LGBl. 1982/60
- Egbert Myjer: Dutch Interpretation of the European Convention: A Double System? , Festschrift Wiarda, 1988, 421 ff.
- Act on the Strengthening of the Status of Human Rights in Norwegian Law of May 21 (Act No. 30) 1999 (PDF; 8 kB).
- Law on Strengthening the Status of Human Rights in Norwegian Law of May 21st (Law No. 30) 1999 ( Memento of April 10th, 2014 in the Internet Archive ), unauthorized translation
- Good Friday Agreement . P. 18.
- Anushka Asthana and Rowena Mason: "UK must leave European convention on human rights, says Theresa May" The Guardian of April 25, 2016 Original quote: " The ECHR can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals - and does nothing to change the attitudes of governments like Russia's when it comes to human rights, "
- Michael Wilkinson: "Human Rights Act will be scrapped in favor of the British Bill of Rights, Liz Truss pledges" Telegraph of August 22, 2016
- Peter Dominiczak and Robert Mendick: "Theresa May vows to protect troops from 'legal witch hunt' by opting out of European human rights rules" Telegraph of October 4, 2016
- Daniel Boffey: "Boris Johnson set for compromise on Human Rights Act - EU sources" The Guardian of October 7, 2020
- Alexander Bezborodov: Constitutional Court against the EU Court of Human Rights ( Memento from August 9, 2017 in the Internet Archive ) Russia currently 35-2015, p. 9 f.
- Judgment: Russian constitution stands above EU human rights , RBTH, July 16, 2015
- Review of the enforcement of decisions of the ECtHR by the Russian Constitutional Court Institute for Law, Economy and Trade in the Baltic Sea Region . V., December 16, 2016
- Duma allows disregard for international judgments Kleine Zeitung, December 1, 2015
- With the entry into force of the Lisbon Treaty on December 1, 2009, the European Union acquired legal personality and became the legal successor to the European Community (EC). The official name has since been the European Union (EU).
- "Art. 6 para. 2 TEU: The Union accedes to the European Convention for the Protection of Human Rights. This accession does not alter the Union's competences as defined in the Treaties. "
- Previously, Article 6 (ex F) of the Treaty on European Union stated that the Union would respect the ECHR.
CASE OF BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND. In: HUDOC database. European Court of Human Rights, June 30, 2005, accessed on May 7, 2009 (English, Application no. 45036/98): “156. If such equivalent protection is considered to be provided by the organization, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization.
However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention's role as a “constitutional instrument of European public order” in the field of human rights (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, pp. 27-28, § 75).
157. It remains the case that a State would be fully responsible under the Convention for all acts falling outside its strict international legal obligations. [...] "
- Julia Spiekermann: The consequences of the EU's accession to the ECHR for the relationship of the ECJ to the European Court of Human Rights and the associated individual legal protection (= series of publications by the Center for European Legal Policy . Volume 65 ). Nomos, 2013, ISBN 978-3-8487-0650-1 .
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- Protocol No. 4
- Protocol No. 6
- Protocol No. 7
- Protocol No. 12
- Protocol No. 13
- Protocol No. 2
- Protocol No. 3
- Protocol No. 5
- Protocol No. 8
- Protocol No. 9
- Protocol No. 10
- Protocol No. 11
- Press release - 032 (2010): Russian approval of Protocol No. 14 - a commitment for Europe
- General Secretary welcomes the imminent entry into force of Protocol No. 14
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- Protocol No. 14bis
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