European Convention on Human Rights
Lailatul Ferdus: Regional human rights systems which are consisting of regional instruments and mechanisms play an increasingly important role in the promotion and protection of human rights at regional level. Regional human rights instruments (e.g., treaties, conventions, declarations) help to localize international human rights norms and standards which are reflecting the particular human rights concerns of the region. Regional human rights mechanisms (e.g., commissions, special rapporteurs, courts) then help to implement these instruments on the ground and currently, the three most well-established regional human rights systems exist in Europe, the Americas and Africa.
The European Convention on Human Rights (ECHR) which is an international treaty to protect human rights and fundamental freedoms in Europe. The ECHR is divided into three sections and section one provides a description and definition of the rights and fundamental freedom provided in the treaty. These rights are very important in protecting rights of the people at regional level. The importance of these rights will discuss below along with case references.
Among those rights two of them are,
- Article 8 – Right to respect for private and family
- Article 9 – Freedom of thought, conscience and
Article 8 – Right to respect for private and family life
The inner meaning of the ECHR confirms that ‘private life’, ‘home’, ‘family life’ and ‘correspondence’ are distinct though repeatedly they are overlapping interests and article 8 protects an interesting set of rights. According to article 8(1), everyone has the right to respect for his private and family life, his home and his correspondence. This right is subject to certain restrictions as well that are “in accordance with law” and “necessary in a democratic society”.
For better understanding the perception of “private life” which is mentioned in Article 8, some case laws should be analyzed. In Niemietz v. Germany1, the Court held that it “does not consider it possible or necessary to attempt an exhaustive definition of the notion of ‘private life’. However, it would be too restrictive to limit the notion to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationship and develop relationship with other human beings.” Private life covers a wide range of issues such as identity, moral and physical integrity, personal relationships and Sexual relations. The concept of Private life which covers the physical and moral integrity of the person, including his or her sexual life established in X and Y v. Netherlands2. As well as, in Dudgeon v. UK3, a homosexual relationship between adult men was regarded as a ‘most intimate aspect of private life.’ In the category of personal and physical identity we can include cases concerning transsexuals or those concerning changes of names, appearances and birth certificates. In addition to sexual life, the collection and usage of information, census, photographs, medical, data, fingerprinting and telephone tapping are all potential intrusions into private life.
Moreover, according to the provisions of this article, ‘home’ has a broad meaning and has some times been taken to cover residence and business premises. In the same case namely Niemietz v Germany4, the court gave broader meaning to the ‘home’. Professional/business premises such as a lawyer’s office can be included as well. Once the existence of a home is established then the applicant is entitled to certain rights, e. g. the right to access and occupation, not to be expelled or evicted. Interests in the home include the right to a peaceful enjoyment of residence, freedom or relief from noise, pollution, etc. For instance, in Lopes Ostra v. Spain 5 the applicant was successful in claiming that failure by the State to act to prevent or to protect her from serious pollution which was fumes from a waste disposal plant dealing with waste from a tannery and it’s constituted a failure to respect her home and private life. A failure to provide information about the risks inherent in residing at a hazardous and unsafe place would result in breaching the provisions of Article 8 as well which mentioned in Guerra v. Italy6.
To define “family life” better, in X, Y, and Z v. UK , the Court recalls that the notion of ‘family life’ in Article 8 is not confined solely to families based on marriage. It may encompass other de facto relationships as well. W hen deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant. It’s Including whether the couples live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.
Another is ‘correspondence’, which could be of a sensitive nature which needs to be protected (lawyer client, lawyer-prisoner correspondence). In Malone v. UK7, Mr. Malone claimed that his correspondence had been intercepted and tampered. So, he sought a declaration from the English High Court. His claim in the English High Court was dismissed and then he went to the European Court of Human Rights, which upheld his claim that there had been a violation of Article 8. According to the Court, in view of the attendant obscurity and uncertainty as to the state of the law in this essential respect the Court cannot but reach a similar conclusion to that of the Commission and in the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking.
Article 9 – Freedom of thought, conscience and religion
Freedom of religion or religious liberty is a right which supports the freedom of an individual or community in public or private to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom to change one’s religion or beliefs8, “the right not to profess any religion or belief”9 or “not to practice a religion”.10 27 October is International Religious Freedom Day, in commemoration of the execution of the Boston martyrs which was a group of Quakers executed by the Puritans on Boston Common for their religious beliefs under the legislature of the Massachusetts Bay Colony between 1659–1661.11
The main focus of freedom of religion as exhibited in Article 9 of ECHR, established two principal features. Firstly, it accords protection to freedom of thought, conscience and religion. Secondly, it protects the manifestation of these freedoms. While restrictions can be placed on manifestation of this freedom, the literal reading of Article 9(1) provides for freedom of thought, conscience and religion as an unqualified right. The private freedom of thought and religion is an absolute right that does not permit any limitation which means it can’t be interfered with by the state. In 1648, in the Treaty of Westphalia, a minimum of freedom of religion was guaranteed that the right to freedom of religion in private and equal rights in all other fields of public life, regardless of religion. Article 9 protects your right to hold both religious and non-religious beliefs.12
The phrases ‘thought, conscience and religion’ as used in the article have been difficult to define. In X and Church of Scientology v. Sweden13, the European Commission was faced with the question as to whether advertisement by the Church was to be attributed a commercial or religious purpose. After deciding that this advertisement was for commercial purposes and, therefore, not a manifestation of religion protected by the article, the Commission did not find it necessary to discuss whether Scientology is a religion.
There are concerns about the restrictions on public religious dress in some European countries (including the Hijab, Kippah, and Christian cross).14 15 But some critics may view the Leyla Şahin v. Turkey16 and Dahlab v. Switzerland17 cases as additional examples of an anti- Islamic bias on the part of the European human rights institutions. Notwithstanding these criticisms of bias on the part of European human rights institutions, the Commission and now the European Court of Human Rights has continued to insist on neutrality on the part of the State authorities in the exercise of their powers including registration of religious communities.
The Court has also been careful to ensure a wide margin of appreciation when faced with cases of the religious freedom of individuals, on the one hand, and the secularity of the State in question, on the other. In Dahlab v. Switzerland, it was held that prohibiting a primary school teacher from wearing a headscarf was permitted in the circumstances, despite the fact that she had taught in the same school for three years without action being taken and without complaints being made. The Court further noted that the impugned measure had left the applicant with a difficult choice, but considered that State school teachers had to tolerate proportionate restrictions on their freedom of religion. The neutrality of the State education system was held to be a legitimate aim when restricting freedom of religion.
This sentiment was echoed in Leyla Şahin v. Turkey, the Court noted that the restriction on the headscarf was ‘necessary in a democratic society’ and went on to make the following points of endorsement of the Turkish State’s argument. The Court said that the Chamber rightly stated the Court considers the notion of secularism to be consistent with the values underpinning the Convention. It finds that upholding that principle, which is undoubtedly one of the fundamental principles of the Turkish State which are in harmony with the rule of law and respect for human rights, may be considered necessary to protect the democratic system in Turkey.
In Arrowsmith v. UK , the Commission accepted ‘pacifism’ as a philosophy which formed part of freedom of thought, conscience and religion. Although the ambit of defining religion, thought or conscience has been controversial, certain guidelines can nevertheless be derived from the European Human Rights case-law. Article provisions have resulted in a difficult balancing exercise, especially when freedom of religion has come into conflict with other human rights such as the right to freedom of expression or the right to private and family life. A typical approach by the Commission and the Court has been to avoid the issues of freedom of religion. In Kokkinakis18, the Court took the view that the values contained in Article 9 were fundamental to the existence of a democratic society. The Court held that in the absence of any pressing social need, the interference with the applicant’s freedom of religion was not necessary in a democratic society.
However, it is also important to note that while freedom of religion is fundamental in many respects, views and practices based religious interpretations, which violate or interfere with the enjoyment of the human rights of others, such as torture, female genital mutilation, underage marriages and forced marriages, cannot be permitted. In Otto-Preminger-Institute v. Austria19, the applicant instit upon religions institute attempted to show a film which was offensive to the religious sentiments of the Catholic people of Tyrol-a region with a largely Catholic population and where religion has a very 10 In influential role in people’s lives. It was held that there was no violation of Article 10. Reaching this decision, the Court was influenced by the religious views and beliefs of the majority Catholic population of Tyrol.
Lastly, right to privacy and freedom of religion both of them are very important in protecting Human Rights in regional level. Though some controversies are raising out of these sensitive issues, ECHR and European Court of Human Rights always try to put effort to upheld the rights of its citizens. By looking at the case references, we can understand that ECHR has great influence over the international law and judgements of the Court legally bind countries to stand by its rulings. The resulting case-law makes the Convention a powerful ‘living instrument’. These decisions have influenced the laws and practices of governments across Europe.
Writer is Legal Consultant and Apprentice Lawyer, Dhaka Judge Court.
Foot Notes
1 Mowbray, Alastair (2007). Cases and Materials on the European Convention on Human Rights. Oxford University Press. ISBN 978-0-19-920674-2.
2 X and Y v. The Netherlands, Application No. 8975/80 (Judgment of 26 March 1985), para 22.
3 Dudgeon v. UK (1982) 4 E.H.R.R. 149, para 52.
4 Ibid https://www.refworld.org/cases,ECHR,3f32560b4.html accessed in 8 July, 2021
5 López Ostra v. Spain (1995) 20 E.H.R.R. 277, paras 51, 52 and 58. See Desgagné, “Integrating Environmental Values into the European
Convention on Human Rights’ 89 AJIL (1995) 263.
6 Guerra and Others v. Italy, (1998) 26 E.H.R.R. 357.
7 Malone v. UK (1985) 7 E.H.R.R. 14.
8 “The Universal Declaration of Human Rights”. The United Nations.
9 United Nations Human Rights Com mittee General Comment No. 22 (CCPR/C/21/Rev.1/Add.4), 30 July 1993,
10 European Court of Human Rights Buscarini and Others v San Marino (24645/94), 18 February 1999
11 Margery Post Abbott (2011). Historical Dictionary of the Friends (Quakers). Scarecrow Press. P. 102. ISBN 978-0-8108-7088-8.
12 A speech on Faith, Freedom of Religion https://thevideoink.com/speech-on-faith/ accessed in 8 July 2021
13 X and Church of Scientology v. Sweden. Application No. 7805/77, 16 DR 68 (1979), at 72, para 4.
14 “France Passes Religious Symbol Ban”. Christianity Today. 9 February 2004.
15 “The Islamic veil across Europe”. BBC News. 17 November 2006.
- Sahin Turkey (2007) 44 E H.R.R. 5. See also Refah Partisi (the Welfare Party) and others v. Turkey (2003) 37 E.H.R.R.1
- Dahlab v Switzerland, Application No. 42393/98, p.
18 Kokkinakis v. Greece (1994) 17 E.H.R.R. 397, paras 48-50.
19 Otto-Preminger Institute v. Austria (1995) 19 E.H.R.R. 34, para 56.
