1. General Principles and Problems of Convention Law
Janneke Gerards, Radboud University of Nijmegen, the Netherlands
Advanced Course on the International Protection of Human Rights – Abo / Turku 2011
Current Issues Concerning the European Convention on Human Rights

2. Programme Vertical and horizontal effect Scope and interpretation
Positive obligations
Exceptions and justification clauses
The “margin of appreciation” doctrine

3. State responsibility
Article 1 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. Article 34 The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. …

4. No horizontal effect?
Cases 1 and 2
Desirable or not?

5. Application of the Convention
Two stages
Definition of scope (“interpretation” – is the Convention applicable?)
Review of justification

6. Scope and definition Determination of scope = interpretation
ECHR – many indeterminate notions and concepts – what do they mean?
Civil rights and obligations
Property
Private life

7. Guiding principles
The Convention as “living instrument”  should be interpreted in the “light of present day conditions”
Evolutive or dynamic interpretation
Central ECHR notions should be given a meaning independent from that prevailing in national states
Autonomous interpretation
Main objectives of the Convention (democratic pluralism; human dignity and freedom) should guide the ECtHR in its interpretation
Teleological interpretation

8. Methods of interpretation
Textual interpretation
Systematic interpretation
Historical interpretation (reference to travaux préparatoires)
Teleological interpretation (reference to objectives of the Convention)
Comparative interpretation – the “common ground method”

9. Common ground method
“New” interpretation is only accepted if there is sufficient consensus in the European legal order to support this

10. The common ground method – why?
Fits well with subsidiary position
‘Democratic’
Common ground can be objectively determined:
Comparative overviews of national legislation and case-law
International law and soft-law
European law

11. Disadvantages common ground method
Should the level of protection of fundamental rights depend on European consensus?
Difficulties regarding application

12. Autonomous interpretation
Example: case 3 Effects?

13. Positive obligations Article 1
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
ECtHR: Article 1 guarantees effective protection of human rights:
States should not unduly interfere with fundamental rights and freedoms (negative obligations)
States should actively protect and promote fundamental rights and freedoms (positive obligations)

14. Examples of positive obligations
Cases 2 & 4

15. When positive obligations?
Fair balance test
ECtHR balances state interest not to act against importance of active protection fundamental right
Procedural positive obligations
Eg. obligations to investigate causes of death of a prisoner; obligation to involve parents in family law proceedings
Substantive positive obligations
Eg. obligation to protect politicians against death threats or to protect participants in a demonstration

16. Interim conclusions - scope
Indirect horizontal effect – constitutionalisation
Proliferation of fundamental rights
Thin line between “classic” and social rights
Case-law often unpredictable; not always clear and convincing reasoning

17. Limitations – typology
“Absolutely” absolute rights
Can never be limited
Eg Articles 3, 7 (cf. e.g. Gäfgen)
“Relatively” absolute rights
Can be limited in case of emergency (cf. Article 15)
Eg Article 4 § 2
Rights without express limitation clauses
ECtHR accepts implied limitations
Eg Articles 6, 14
Rights with express limitation clauses
Eg Articles 8-11, Article 1 Protocol No 1

18. General requirements for limitation
“Prescribed by law”
“basis in domestic law”
substantive requirements: forseeability and accessibility
Legitimate aim
“Necessary in a democratic society”
“pressing social need”
“relevant and sufficient”
sometimes: test of subsidiarity
mostly: test of proportionality or “fair balance”

19. Example – Case 5 (Evans)

20. Margin of appreciation doctrine – why?
47 States – 47 different opinions on constitutional values, sensitivities, factual backgrounds
National authorities are “better placed” than the ECtHR to decide about the necessity and reasonableness of limitations
ECtHR has to take national criticism seriously:
Görgülü case (Bundesverfassungsgericht, Germany) – far reaching judgments contrary to national constitutions will not be accepted
Judgments bind only the parties to the case – no erga omnes effect; no automatic obligation to adapt national law to judgments against other states
States have the obligation to protect fundamental rights and freedom effectively and on a high level

21. MoA doctrine – why?
Need for a flexible instrument to respect national differences and opinions, while protecting fundamental rights

22. MoA = intensity of review
A “certain”, “narrow” or “wide” MoA is allowed to the States
Corresponds to
Deferential / marginal review (wide margin)
Strict scrutiny (narrow margin)
Intermediate scrutiny (certain margin)

23. Intensity of review Should translate in specific standards
E.g. “manifestly unreasonable”, “manifest error”
May influence burden of proof
E.g. applicant must demonstrate lack of necessity of measure in case of a wide margin of appreciation

24. How to determine the MoA?
Common ground argument – consensus on desirability of certain limitations
Lack of consensus: wide margin
Strong consensus: narrow margin
Importance of the fundamental right (“core” or “periphery”)?
Political expression vs. television commercials
Nature of the aims pursued; policy area (cf better placed argument)
Operational choices with economic or social consequences (eg social security, housing)
Assessment of facts needed

25. Nature of the interference
Cf preventive prohibition of demonstration with criminal proceedings after demonstration
Article 14 (non-discrimination) – ground of discrimination
Narrow margin in case of “suspect” grounds, such as race or gender

26. How to balance these factors? – Case 6 (Niedzwiecki)

27. Does the MoA work?
Criticism?
Should the MoA be abandoned?