to inform public officials about the State's obligations under the European Convention on Human Rights

This toolkit aims to provide officials of the States Parties to the European Convention on Human Rights (hereinafter "the Convention") with information and practical guidance to equip them to respect the Convention rights of the people they deal with, fulfil the State's Convention obligations and so, as far as possible, avoid breaches of the Convention.

Who this toolkit is for?

The toolkit is primarily for officials working in the justice system and for those responsible for law enforcement or for the deprivation of a person's liberty. Specifically, that will nclude (but not be limited to) police, prison officers, immigration officers and workers in secure psychiatric institutions or other institutions providing care to vulnerable persons.

More widely, the toolkit is also for any official who interacts with the public in ways which raise potential issues of Convention rights, for instance social workers, registrars and licensing authority officials.

It is not designed for judges, lawyers or senior civil servants, but for those "at the sharp end". It assumes no prior legal knowledge.

The toolkit contains, in particular:

  • A guide to the rights conferred by the Convention and its Protocols and to the corresponding obligations of the State, following the order in which the provisions appear. Those provisions which most often arise in the work of the officials for whom this toolkit has been written are covered in much greater detail than those which rarely arise. The toolkit does not aim to cover all potential issues, as a legal textbook would; it concentrates selectively on the most significant and frequently encountered ones.
  • Questions and checklists highlighting points to consider, to help officials decide whether a potential issue under the Convention arises.

The Convention and how it works

The Convention on Human Rights and Fundamental Freedoms (to give the Convention its official title) is an international treaty between the States (currently 47) members of the Council of Europe (not to be confused with the European Union). The Council of Europe was set up after the Second World War as an international organisation for the promotion of democracy, human rights and the rule of law. The Convention was adopted in 1950. States become bound to abide by the obligations of the Convention when they become party to it by ratification. All the member States have ratified the Convention.

There are a number of optional Protocols to the Convention, which supplement its provisions by adding to the substantive rights guaranteed by the Convention. Member States may choose whether to accept the optional Protocols by ratifying them, and not all States have accepted all the optional Protocols. You should check which of the optional Protocols have been ratified by your State on the Council of Europe Treaty Office website.

Please note: We invite you to send us any suggestions that may improve the content or the presentation of this website. Please feel free to fill in this information on the contact form provided for this purpose.

Back Articles 8-11

These four articles, respectively on respect for private and family life; freedom of thought, conscience and religion; freedom of expression; and freedom of assembly and association have several common features:

  • they are all qualified rights;
  • they share a two-paragraph structure, in which paragraph 1 states the right and paragraph 2 sets out the circumstances in which interference with it may be justifiable;
  • the second paragraphs vary in detail but have three common requirements for an interference with the right to be justified.

First the interference must be in accordance with the law. "Law" includes primary and secondary legislation, common law and EU law for States which use those systems, and rules of professional bodies, universities, etc. The law must be established in the national system. It must also be accessible, i.e. publicly available, and foreseeable, i.e. sufficiently precise to allow someone to regulate their behaviour to comply with the law. In one of several cases on telephone tapping, the Court found that a law did not contain sufficiently clear and detailed rules especially given the seriousness of the interference and the increasing sophistication of the technology (Kruslin v. France).

Second the interference must pursue a legitimate aim. All the second paragraphs set out lists of specific permitted aims, which vary from article to article, such as "prevention of crime", "protection of public order, health or morals" or "protection of the rights and freedoms of others".

Third the interference must be "necessary in a democratic society" to pursue the aim in question. "Necessary" means neither "indispensable" at one extreme nor merely "reasonable" at the other. It means the government has to establish that there was a "pressing social need" for the interference and that it was proportionate to the aim pursued. Despite the word not appearing in the Convention text, proportionality is at the heart of how the Court has interpreted it. So, even if an action or policy pursues a legitimate aim, it is not permissible if the means used are excessive, arbitrary or unfair. Essentially the Convention requires national authorities to balance the individual's rights against the public interest; it may also be a matter of striking a balance between competing individual rights. The Court has recognised that it is primarily for national authorities to safeguard human rights and strike the right balance, and that they are in principle better placed than the Court itself to assess the necessity for an interference. Hence it has developed a principle that States enjoy a discretion in this area, which it calls the "margin of appreciation", recognising that, as social and other circumstances differ, so may local solutions. This latitude is, however, limited, and is subject always to the supervision of the Court. It will be stronger if practice across Europe varies widely than if there is a consensus which is out of line with the individual State's policy or practice. In the nature of things, social attitudes change, and the decisions of the Court evolve along with those attitudes.

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