Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), LLM (Exeter, UK), PhD Scholar (pursuing), NUALS, Cochin)).
The European Convention on Human Rights, though a regional Convention, is one of the most successful systems of protection of human rights in the international scenario especially with its effective judicial system, supervisory function of the Committee of Ministers and with the application of its unique principles of democracy, subsidiarity, proportionality, methods of interpretation and protection with the help of effective remedies. These general principles not only help in proper interpretation of the principles of the Convention but also act as a tool by which the domestic systems can be made to incorporate the Convention principles into its own legal framework. In U.K., for example, it is a settled position that if a part of the legislation is ambiguous the Court may use its own techniques of interpretation so as to adapt a meaning that is consistent with the Convention ((Held in Garland v. British Rail Engineering Ltd  AC 751; Mark Janis, Richard Kay, Anthony Bradley, European Human Rights Law (2nd edn OUP New York 2000) 491)). This paper is an attempt to provide a detailed analysis on the role of the general principles and how it facilitates the effective working of the European Convention on Human Rights.
The Role of the General Principles in the working of the Convention
The basic values of the Convention as developed by the Court are stated to be democracy which is a plural and responsive system, rule of law which includes a substantive notion of law and effective access to Courts and human rights ((Colin Warbrick, ‘The Principles of the European Convention on Human Rights and the Response of States to Terrorism’ 2002 E.H.R.L.R. 287, 289)). As a matter of general rule, the European Convention is to be interpreted in the light of Article 31 of Vienna Convention on Law of Treaties, 1969 in good faith, in accordance with the ordinary meaning of terms and in the light of its object and purpose. This helps in respecting an objective criterion of interpretation ((Alexander Orakhelashvili, ‘Restrictive Interpretation of Human Rights treaties in the Recent Jurisprudence of the European Court of Human Rights’ 2003 E.J.I.L. 529, 535)). An effective interpretation of the Convention principles can be shown with the help of the case of Golder v. UK (( 1 EHRR 524))where the Court held that the right to access to Court is a part of the right to fair tail guaranteed under Art. 6 of the Convention and it did so by relying on the object and purpose as enshrined in the Preamble and ‘rule of law’ as mentioned in the Statute of Council of Europe. It has been observed in Ireland v. UK (( 2 EHRR 25))that by doing so the Court makes an objective obligation upon the states for protection of human rights and not merely reciprocal obligations between the member states ((D.J. Harris, O’Boyle, E.P. Bates, C.M. Buckley, Law of the European Convention of Human Rights (2nd edn OUP, New York 2010) 6)).
The Convention has been described as one for the collective enforcement of human rights and fundamental freedoms ((Sibrand Karel Martens, ‘Incorporating the European Convention: The Role of the Judiciary’ 1998 E.H.R.L.R. 5, 8)). As far as the Convention is concerned, it was the Legal Committee in September 5, 1949 that reported to the Consultative Assembly for the creation of ‘collective guarantee’ of essential freedoms and human rights based on the rights under UDHR ((Sandy Ghandi, ‘The International Bill of Rights and the European Convention on Human Rights’ 2006 LIMUK 282, 287)). In Loizidou v. Turkey (([Preliminary Objections) 23rd March 1995 http://www.hri.org/news/special/loizidou/judgmnt.html accessed 8 December 2010))it has been observed that in interpreting the key provisions (Articles 19, 25 and 46 in the instant case) the Court must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights.
The Principle of subsidiarity
The principle of subsidiarity which forms the backbone of the Convention mandates that the primary responsibility to protect human rights vests with the states and the Court is there to monitor their actions similar to a curt exercising its power to review conducts of governments or legislatures ((D.J. Harris, O’Boyle, E.P. Bates, C.M. Buckley, Law of the European Convention of Human Rights (2nd edn OUP, New York 2010) 13)). The principle of subsidiarity can be seen reflected in provisions providing for exhaustion of domestic remedies and obligation to provide an effective national remedy ((Article 13: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.Article 35(1): The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.)). Upholding the principle of subsidiarity is very essential as it could prevent the overload of cases before the Strasbourg Court because one probable reason for the overload is the fact that the national system is ineffective in granting adequate protection to the Convention rights. The same is very clear from the judgment in Kudla v. Poland (( 35 EHRR 11))where it was observed that strengthening human rights protection at the national level is essential for the survival of the Convention.
Subsidiarity is said to be one of the tools used in order to provide a coherent analysis of the Court’s case law ((Thomas Spijkerboer, ‘Subsidiarity and “Arguability”: The European Court of Human Rights’ Case law on Judicial Review in Asylum Cases 2009 I.J.R.L. 48, 74)). In the case of Sheffield and Horsham v. UK (( 27 EHRR 163)), the Court held that as per the principle of subsidiarity it is for the states to decide on the measures by which the rights under the Convention can be secured and in resolving within the domestic legal framework the states must have a wide margin of appreciation ((Alastair Mowbray, ‘European Convention on Human Rights: Developments in Tackling the Workload Crisis and Recent Cases’ 2003 (3) Hum. Rts. L. Rev 135)). It has also been held in Ahmet Sadik v. Greece (( 24 E.H.R.R. 323))that the supervision machinery set up by the Convention is subsidiary to the national human rights protection systems.
Methods of Interpretation
The method of interpretation also forms one of the basic general principles and it has been observed that an abandonment of the interpretative process will prevent further progress of the standards as envisaged by the Convention principles ((Elizabeth M. Evenson, ‘Reforms Ahead: Enlargement of the Council of Europe and the Future of the Strasbourg System’ 2001 (1) Hum. Rts. L. Rev. 219, 227)). Further, within the principles of interpretation there are sub principles that are always followed which also helps for the effective function of the whole system. It includes the principle of ‘effective interpretation’ as has been observed in Artico v. Italy (( ECHR 4))that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” ((Para 33; http://strasbourgconsortium.org/document.php?DocumentID=4546 accessed 10 December 2010))and as has been observed in Klass v. Germany (( 2 EHRR 214))that “the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions ((Para 68 <http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=klass&sessionid=63229003&skin=hudoc-en> accessed 7 December 2010)).”
The Courts pursue a method of dynamic interpretation that allows greater flexibility which is apparent from the observation laid down in Tyrer v. UK (( 2 EHRR 1))that the Convention must be interpreted in the light of present day conditions and this is precisely the reason behind the change in attitude in matters like children born out of wedlock ((Marckx v. Belgium (1979) 2 EHRR 330))and homosexuals. But the Convention may not bring in a right that was not planned to be incorporated in the Convention like the right to divorce although such a right does in reality exist in Europe.
Principle of Democracy
The principles of democracy together with the principle of rule of law are the two primary principles which guide the working of the Convention and the Court. The principle of democracy is also reflected herein as while following dynamic interpretation the Court judges as to whether the new social standard has received ‘wide acceptance’ and ‘wide acceptance’ does not mean that the Court waits till the defendant state remains out of line before it recognizes a new standard ((D.J. Harris, O’Boyle, E.P. Bates, C.M. Buckley, Law of the European Convention of Human Rights (2nd edn OUP, New York 2010) 9)). In Open Door Counseling and Dublin Well Woman Centre Ltd. v. Ireland (( 15 EHRR 244))the Court held that the injunction restraining the clinics from providing information about abortion services abroad were not ‘necessary in a democratic society’ and was violative of Article 10 ((Article 10 (1) of ECHR states that everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.))and moreover observed that the ban on counseling was too broad as it applied to all women regardless of their age, health or reasons for seeking advice ((Mark Janis, Richard Kay, Anthony Bradley, European Human Rights Law (2nd edn OUP New York 2000) 236)).
The Court’s conception of democracy is made clear through the consideration of the democratic rights contained in Articles 10 and 11 dealing with freedom of expression and association respectively and Article 17 which prohibits the abuse of Convention rights. Article 17 is designed to prevent totalitarian movements from using human rights as a vehicle for their cause ((Paul Harvey, ‘Militant democracy and the European Convention on Human Rights 2004 European Law Review’ 407, 411)). It has also been held in Al-Adsani v United Kingdom ((55, ECHR 2001-XI))that any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society ((Luzius Wildhaber, ‘The European Convention on Human Rights and international law 2007’ I.C.L.Q. 217, 221)).
It is stated that the work of the Strasbourg Court is the development of a European corpus of standards in the area of rights and strengthening the enveloping combination of the rule of law and democracy ((Michael O’Boyle, ‘On reforming the operation of the European Court of Human Rights’ 2008 E.H.R.L.R. 1, 3)). But at the same time, though certain aspects have been said not to have changed due to the practice of western liberal democracy as for example the practice of protecting judges from criticism and this principle of democracy, it is stated that it will cease to exist if people are restrained from expressing their opinion on the working of the public officials or public measure ((Michael K. Addo, ‘Are judges beyond criticism under Article 10 of the European Convention of Human Rights?’ 1998 I.C.L.Q. 425, 430,438)). In United Communist Party of Turkey [TBKP] and others v. Turkey (([19392/92) 30 January 1999 <http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=TBKP&sessionid=63407638&skin=hudoc-en> accessed 10 December 2010))where the issue was with regard to abolition of Communist Party in Turkey, the Court held that the dissolution was ordered even before the activities had started combined with a ban on its leaders from exercising any political responsibility is unnecessary in a democratic society as it is disproportionate to the aim pursued.
The Court has also used the effective tool of ‘democracy’ to qualify the freedom of expression in the case of Refah Partisi (The Welfare Party) and others v. Turkey (( 37 EHRR 1))wherein the Court observed that a political party may promote a change in the legal structure but the means used for the same should be legal and ‘democratic’ and that the change must be compatible with the ‘democratic principles’. The Court has also allowed limitations to certain freedoms as such limitations were not a threat to the freedom which is fundamental in a democratic society as for example in Muller v. Switzerland (( 13 E.H.R.R. 212)), restricting the exhibition of sexually offensive paintings and Otto-Preminger Institute v. Austria (( 19 E.H.R.R. 34))banning a film offensive to religious sentiments.
Reliance by the European Court on other sources
The Court also places sufficient reliance on European national standards and the best example to show the importance of this is in the case of determining freedom of speech the Court should be aware of the interests of the individual and interests of the community so that it could maintain a fair balance between the two. In return, when it comes to protection of fundamental rights of the persons the domestic Courts will have to have regard to human rights treaties and European Convention in particular ((Mark Janis, Richard Kay, Anthony Bradley, European Human Rights Law (2nd edn OUP New York 2000) 505)). This is clear from the ruling of the House of Lords that the Courts should follow the jurisprudence of the Strasbourg Court and the decisions of the Grand Chamber in the absence of special circumstances ((R(Al-Skeini and others) v Secretary of State for Defence  UKHL 26)). Another example which could be given in relation to this context is the fact that in interpreting art 6(1), though, in principle, judgments should be pronounced in public, the Court has taken note of the fact that the Court of cassation in civil law countries depart from this. But at the same time the Court has been strict, irrespective of diversity of practice, in matters such as requirement of an impartial tribunal and condemning inordinate delays. The Court also refers to other human rights treaties and international instruments which includes that of Council of Europe and decisions of international bodies and this is done independent of taking into consideration whether the respondent state is a part to that or not. There have been instances where the Court has taken into account the doctrine of state immunity in interpreting Article 6 in cases like Al-Adsani v. United Kingdom ((34 EHRR (2002) 11)), Foggarty v. United Kingdom ((34 EHRR (2002) 12)), McElhinney v. Ireland ((34 EHRR (2002) 13)).
The basic rationale behind the proportionality principle is that the reasonable restrictions which a state can impose are to the extent that it is necessary in a democratic society i.e. the restriction must be proportionate to the legitimate aim pursued. Here again the basic reason, as can be found in the judgment of Soering v. UK (( ECHR 14)), is the search for a balance between the fundamental rights of the individual and general interests of the community. This seems very important especially in matters of derogatory rights during public emergency under Art.15 as the measures taken during public emergency must be strictly required by the exigencies of the circumstances. The most important feature of proportionality principle has been stated to be that it deconstructs the decision making process which allows an evaluation as to how judges deal with specific issues ((Madhav Khosla, ‘Proportionality: an assault on human rights?: A reply’ 2010 I.J.C.L. 298, 300)). Though this principle has been said to be an assault of the concept of human rights on the ground that the issue if right or wrong is often forgotten and it only investigates whether something is adequate ((Stavros Tsakyrakis, ‘Proportionality: an assault on human rights?’ 2009 I.J.C.L. 468, 489)), the principle of proportionality has got the potential to limit the extent of the margin of appreciation granted to the national authorities ((Timothy H. Jones, ‘The devaluation of human rights under the European Convention’ 1995 P.L. 430, 444)).
The basis of the fair balance principle which is often used to assess the proportionality of interference by the state with the individual’s rights under the Convention is to achieve equilibrium between the member states and is mostly applied in violations of Protocol 1 rights and other Articles of the Convention ((23 EHRR 413))especially in matters of deportation as had happened in cases like Saadi v. Italy ((47 EHRR 17))and Chachal v. UK (( 23 EHRR 413; For example cases in cases like Jahn and Others v Germany,42 EHRR 49; Slivenko v Latvia 39 EHRR 24)). This principle becomes highly relevant in determining whether a positive obligation exist or not and in such cases regard must be there to the fair balance between interests of the individual and community and it is described as a search which is inherent in the Convention ((Alastair Mowbray, ‘A study of the principle of fair balance in the jurisprudence of the European Court of Human Rights’ 2010 H.R.L. Rev. 289, 306)).
Let’s take Article 8 ((Article 8 – Right to respect for private and family life))for example. With regard to proportionality principle especially in regard to Article 8 it has been stated that the test is not whether the decision maker exercised the jurisdiction reasonably and in good faith, but to decide the issue for itself by the Court, and moreover in making a fair balance between the public interest and the individual rightsthe Court must consider a whole list of relevant factors weighing in the applicant’s favour and against ((Ian Macdonald, ‘ECHR article 8: Bringing the UK Courts back in step with Strasbourg 2008 J.I.A.N.L. 293, 297)).
The Margin of Appreciation doctrine
The Margin of Appreciation doctrine allows certain discretion for the state with respect to certain rights in the Convention and it is based on the subsidiarity principle and is mostly used to assess state’s compliance with its positive obligations and for determining instances like state’s interference with property rights, cases of public emergency under Article 15 and in these ways it is strongly linked to the proportionality principle. It reflects both the aspects of subsidiarity and cultural diversity ((Oren Gross & Fionnuala Ni Aolain, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ 2001 (23) Hum. Rts. Q. 625)). The ruling in Handyside v. UK (( ECHR 5))clearly shows the application of this doctrine where the Court held that the state authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements of morals as well as on the necessity of a restriction or penalty intended to meet them ((D.J. Harris, O’Boyle, E.P. Bates, C.M. Buckley, Law of the European Convention of Human Rights (2nd edn OUP, New York 2010) 12)). A much narrow margin of appreciation was applied in Sunday Times v. UK (( 2 EHRR 245))where the Court held that the restraint on publication of an Article in the newspaper was violative of Article 10 as the Court observed that there is no sufficiently urgent social need which may outweigh the public interest in the freedom of expression. On the other hand, there are certain Convention rights that do not allow a margin of appreciation to the states as, for example, Article 7, as the rule against retroactive operation of criminal law is considered as rule of law which is obligatory on the states to follow ((Marton Varju, ‘Transition as a concept of European Human Rights Law’ 2009 E.H.R.L.R. 170, 179)). This doctrine has also been criticized, though not to a larger extent, as it may not be very effective to tackle with issues emanating from different countries having different histories, traditions and different social and political values ((Elizabeth M. Evenson, ‘Reforms Ahead: Enlargement of the Council of Europe and the Future of the Strasbourg System’ 2001 (1) Hum. Rts. L. Rev. 219, 227))but this can always be opposed by saying that it happens only if the Court uses a very unusual broad margin of appreciation and not only that, a greater margin of appreciation would entail a risk of politicizing the system ((Anthony Lester, ‘The European Court of Human Rights after 50 years’ 2009 E.H.R.L.R. 461, 477)). Judge Martens in his dissenting opinion in Cossey v. United Kingdom (( 13 E.H.R.R. 622))observed that it is for the Court to decide in every case whether a margin of appreciation should be left to the State and to what extent ((Sibrand Karel Martens, ‘Incorporating the European Convention: the Role of the Judiciary’ 1998 E.H.R.L.R. 5, 6)).
But this doctrine is seen by some as a doctrine of judicial restraint as, if applied in a wide sense, it generates a presumption in favour of the respondent state and if applied narrowly there will be no such presumption and a chance of closer scrutiny ((Timothy H. Jones, ‘The Devaluation of Human Rights under the European Convention’ 1995 P.L. 430, 431))but the fact remains that the Court can always look into whether the state has gone beyond what was required in exercising its discretion and a wide margin may be allowed in cases of national security and economic and social policy. Moreover there have been cases like Dudgeon v. UK (( 4 EHRR 149))where the Court have rejected the government’s claim for a broad margin of appreciation. This doctrine has been said to be the necessary jurisprudential grease in the enforcement mechanisms of the Convention ((Thomas A O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ 1982 (4) Hum. Rts. Q. 474)).
The presence of an effective system of remedy is yet another factor which has helped in the effective functioning of the Convention. Though the primary remedy is that of a declaratory relief, the cases like Barthold v. Germany (( 7 EHRR 383))and the application of Article 41 which highlights the importance of just satisfaction covering both pecuniary and non-pecuniary amongst other reliefs also renders the Convention system effective as the basic objective of the Convention principles is to remedy the victim of human rights abuses. It cannot be said that the damages awarded are always too low as in Sigurdsson v. Iceland (( 16 EHRR 87))the Court did award very high non-pecuniary damages for violation of right to fair trial guaranteed under Article 6 of the Convention. Moreover the review of the statistics of the Court awarding just satisfaction in a given year proves that it forms the basic guiding principle for the Courts in deciding cases ((For example, see the number of cases in which just satisfaction has been awarded and the amount given – Summary table of just satisfaction in length of proceedings cases E.L. Rev. 2002, 27 Supp (Human rights survey 2002), 210-213)).
Another exceptional remedy that may be classified as a factor for the effective functioning of the Convention is that of ‘interim relief’ which has been held to be binding in Mamatkulov and Askarov v. Turkey (( 11 EHRR 439))in the light of state’s obligation under Article 34. In ES v Slovakia ((ES v Slovakia (8227/04) Unreported September 15, 2009 (ECHR) in ES v Slovakia (Application No.8227/04): ‘Positive obligations – Availability of interim measures to protect victim – Just satisfaction’: Case Comment, 2010 E.H.R.L.R. 98))where the issue was relating to the torture suffered by wife and her children from her husband against whom she filed for divorce claiming violations of Articles 3 and 8, the Court held that she could not be provided with an effective interim relief until there has been an amendment in the legislation concerned and taking into account the severity of the allegations the applicant and her children required protection immediately and thus the state had failed to discharge its positive obligation and granted compensation under the heads of non-pecuniary damage and costs and expenses.
Principle of Equality as a General principle
The principle of equality as a general principle may sound a little odd but when looked at it one from one point of view it assumes great importance as a general principle which is enunciated in Article 14 of ECHR ((Article 14 of ECHR states that the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.)). It does not confer an independent and substantive right to equal treatment as it is only a complimentary provision to other rights mentioned in the Convention and where a right falls outside the Convention the state may not be required to observe the principle of equality ((Takis Trisimas, The General Principles of EC Law (1st edn OUP, New York 1999) 43)). But it should be noted that the provision, i.e. Article 14 uses the word ‘other status’ that includes inter alia illegitimacy marital, professional or military status and so on. This is in close relation to the principle of proportionality and margin of appreciation doctrine. To substantiate, there can be no discrimination where the provision pursues a legitimate aim and where there is a nexus between the means and the objective sought to be achieved. Moreover, the European Court of human rights has employed the margin of appreciation doctrine to find what means are reasonable for the state to pursue a legitimate aim.
Though not as a general rule, in exceptional circumstances, the Court may question the interpretation of law by national Courts, which is often termed as the ‘fourth instance doctrine’ where such interpretation is arbitrary or where the national law should have complied with the requirement of the Convention as for example the rights provided under Article 5. Though rarely used as it is not always helpful especially when the Court follows a dynamic interpretation, occasionally the Court relies on travaux preparatoires to confirm the meaning of certain terms so as to avoid unreasonable results. The autonomous meaning of the term is often taken into consideration especially when the terms exceed the mere reciprocal exchange of undertakings between contracting states in its maintenance of objective standards for the benefit of third parties ((Michael K. Addo, The Legal Nature of International Human Rights (1st edn Martinus Nijhoff Publishers, Leiden Boston 2010) 295))as for example the word ‘law’ may require a national basis for what is done and will be filled with a Convention idea of the essential qualities of law. The Court had used autonomous interpretation in Engel and Others v. Netherlands (( 1 EHRR 706))by which the Court observed that what the state means by criminal charge and disciplinary charge is not the same as what the Convention mean by those terms.
It is important to note the case of Christine Goodwin v. UK (( 35 EHRR 18)), which was regarding recognition of post operative transsexuals, as we can see a mix of general principles used as the Court in this case refers to Chapman v. UK ((33 E.H.R.R. 399 ))and Cossey v. UK (( 13 EHRR 622))to highlight the dynamic interpretation of the Convention and moreover they are reflected in the ruling of the Court that the government can no longer claim that the matter falls within their margin of appreciation and that the fair balance inherent in the Convention tilts towards the applicant. The use of general principles in reconciling conflicting issues has been very useful as for example in the Danish education Case ((Kjeldsen, Busk Madsen and Pederson v. Denmark (Application no. 5095/71; 5920/72; 5926/72) 7 December 1976 <http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Kjeldsen%2C%20|%20Busk%20|%20Madsen%20|%20Pedersen%20|%20v.%20|%20Denmark&sessionid=63427222&skin=hudoc-en> accessed 11th December 2010))concerning introducing sex education in the curriculum the Court observed on one hand that the state is forbidden from pursuing an aim which was not in conformity with the Convention which is designed to promote the values of a democratic society and on the other hand that there was a legitimate government concern which was clear from increase in diseases and unwanted pregnancies and held that the government had not violated the Convention. The general principles acts as lubricant in the functioning of the Convention and most particularly at the crossing point between individual rights and interest of the general public. Though it may not have anticipated that the general principles will have an enormous positive impact on the Convention the rulings by the Strasbourg Court till date has proved the fact that it eases the functioning of the Convention. The outcome of the decisions may be different and some may agree and others may disagree but it should be accepted that the general principles which also include the interpretative techniques of the Strasbourg have helped for a better understanding of the rights and freedoms set out in the Convention.