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Published: Fri, 02 Feb 2018
Constitutionality Of European Convention On Human Rights
The European Convention of Human Rights (ECHR) was first drafted in 1950 by the newly formed council of Europe and entered onto force on the 3rd of September 1953. This lead to the establishment of the European court of Human Rights (EctHR) in Strasbourg to protect individuals from human rights violations, which was an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena, where traditionally only states are considered actors in international law. Europeans can bring cases the EctHR if they believe that a member state has violated their fundamental rights in relation to the guidelines stated within the convention. The Strasbourg court is therefore granted the responsibility of making sure the convention is applied throughout the member states across Europe. This seemingly gives the Court the power to go above domestic constitution of its member states. This essay will address interpretive functions of the European Court of Human rights, address how the court may use such interpretive techniques resulting in overruling domestic constitution and will also address the global reach of the European Convention of Human Rights and the European Court of Human Rights. It will be argued that the European convention of Human rights is a supra constitutional instrument, placing itself above domestic constitution in turn the European Court of Human Rights, acts as a guardian of the convention, making states comply with it.
The European Convention of Human Rights was the first international human rights instrument to provide means for its own interpretation and enforcement  giving the ministers of the council of Europe both an administrative role and monitoring role in relation to compliance by states. One of the aims of the council of Europe is the achievement of greater unity between its membership, forming a European public order. Such unity requires realising the common belief in the rights outlined in the convention, which are fundamental to human freedom and the foundation for peace and justice in the world. Fundamental freedoms are best realised and maintained though a political democracy and a common understanding of the human rights, which is monitored through implementing the convention within domestic constitution and also by the EctHR itself. The protocols outlined in the convention that are accepted vary throughout member States, however it is understood that state parties should be party to as many protocols as possible.
The systems for the protection of fundamental rights both in the European Union (EU) and in the Council of Europe recognise that states may vary in the standards they use for the enhancement and protection of human rights  . The lack of European consensus on values may lead to the protection of certain rights and freedoms in some states but not in others Unless a uniform European public order is maintained. The lack of consensus between European states also results in states having a large ‘margin of appreciation’ with regard to limitations that may be imposed on fundamental rights. Roel de Lange claims that It remains unclear as to whether fundamental rights are a part of the European public order or, for instance, whether the European public order may be used as a basis for certain limitations on the exercise of fundamental rights  . It is a common conception that it is the courts obligation to defend these fundamental rights in an attempt to maintain a European public order.
The European Court of Human Rights supervises compliance with the European Convention on Human Rights and thus functions as the highest European court for human rights and fundamental freedoms. The Strasbourg court therefore is the self proclaimed guardian of the convention and in turn the European public order and the protector of individual rights, placing itself above domestic constitution of its member states. However, article 19 of the convention simply states that the obligation of the court is as follows;
To ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention, there shall be set up:
a European Commission of Human Rights, hereinafter referred to as “the Commission”;
a European Court of Human Rights, hereinafter referred to as “the Court”. 
It can be seen that the courts obligation as a defender of the European public order is not stated within the ECHR. This view is self proclaimed, and positions the EctHR above both the domestic court and domestic constitution of member states. All courts and tribunals must take into account any judgement of the European Court or opinion of the Commission which they regard as relevant to the issue before them  . As the convention and court are considered to be a European treaty put forward to protect human rights and fundamental freedoms in Europe, Ian Loveland provides reference to the ECHR as a constitutional instrument of European public order, which seems to imply that fundamental rights and norms expressed in the ECHR do have a special status in European law  , making it a supra constitutional entity.
The European convention of human rights is stated in broad terms, which may be interpreted differently throughout member states. The EctHR, and the UK courts under the human rights act have developed a sophisticated jurisprudence built upon underlying principles and interpretive techniques which ‘flesh out’ the scope of the broadly stated rights to give them meaning in the context of individual cases  . Article 3, Prohibition of Torture, provides an example of the indirect terminology used within the convention, which may be interpreted in a number of different ways with varying degrees of scope. Article 3 states;
No one shall be subject to torture or to inhuman or degrading treatment or punishment. 
This statement in its entirety and the concepts of torture, inhumane treatment and degrading treatment individually are not clearly defined within the ECHR.
Judge sir Gerald Fitzmaurice suggests that this wording, perhaps deliberately because of the virtual impossibility of arriving at any completely satisfactory definition of the notions involved, attempts none respecting torture, inhuman treatment, or degrading treatment  . It is left to be determined in the light of the circumstances of each particular case whether what occurred amounted to, or constituted the specified treatment. In the case of Ireland v. the UK 1978 torture was ultimately defined as a “deliberate inhuman treatment causing very serious and cruel suffering”  0. The ‘torture’ in question included the following five interrogation techniques;
(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;
(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;
(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;
(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;
(e) deprivation of food and drink: subjecting the detainees  1
These acts were defines as torture as they were considered to be server acts of human mistreatment. The scope of terms such as these is large, and power is given to the court to define them on a case by case basis. Judge Zekia addresses this point within his opinions of the judgements of Irland v. UK;
Admittedly the word “torture” included in Article 3 (art. 3) of the Convention is not capable of an exact and comprehensive definition. It is undoubtedly an aggravated form of inhuman treatment causing intense physical and/or mental suffering. Although the degree of intensity and the length of such suffering constitute the basic elements of torture, a lot of other relevant factors had to be taken into account. Such as: the nature of ill-treatment inflicted, the means and methods employed, the repetition and duration of such treatment, the age, sex and health condition of the person exposed to it, the likelihood that such treatment might injure the physical, mental and psychological condition of the person exposed and whether the injuries inflicted caused serious consequences for short or long duration are all relevant matters to be considered together and arrive at a conclusion whether torture has been committed  2.
The court is given the power to interpret the convention, which forms definitions of words such as ‘torture’, to be implemented across relevant cases. The application of terminology within cases is subjective. Terminology may be interpreted differently throughout time, context, or between judges. The convention is home to concepts which may be deemed as having ‘autonomous meaning’. This concepts are defined independently of the meaning which they have in national law, and are interpreted without regard to the original intentions of the drafters of the ECHR . David Feldman addresses the idea of ‘autonomous concepts’ which are said to be used within the convention to ensure that, states cannot dictate the meaning of the terms to the court  3. For example within article 6 concepts of ‘determination’, ‘criminal charge’, ‘civil rights’ and ‘civil obligation’ have autonomous meanings or additionally within article 8 ‘private life’, ‘family life’, ‘home’, and ‘correspondence’ may be subject to shift throughout time and interpretation. The interpretation of the convention may vary between member states.
The Strasbourg Court may act as a supra constitutional tool, imposing obligations on its member states and enforcing the concepts outlined within the European convention of Human Rights. The Convention, represents an attempt to fashion a notion of democracy based on broad consensus, on principles which not only cut across not just party politics, but also across historical and geographical frontiers  4. However interpretations of the Convention may differ throughout member states. Council of Europe member states maintain their sovereignty but commit themselves through conventions and co-operate on the basis of common values and common political decisions. The member states interpretation of the convention may form part of its constitution which defines the system of laws which formally states people’s rights and duties as citizens within that state. Any attempt to change this constitution may be seen as an act of supra constitutionality.
A display of such supra constitutionality can be seen within the case of Open Door and Dublin Well Woman v. Ireland (1992). This case concerns article 2 of the European convention of Human Rights, the Right to Life. Irish criminal law made it an offence to procure or attempt to procure an abortion, to administer an abortion or to assist in an abortion by supplying any noxious thing or instrument  5. Irish constitutional law also protected the right to life of the unborn from the point of conception onwards. The European Court of Human Rights ruled in favour of open door and Dublin well Woman despite of the domestic constitution of Ireland. The issues of abortion addressed within this case were held by Judge Cremona to be;
a fundamental principle of Irish public policy which has been enshrined in the constitution itself after being unequivocally affirmed by the direct will of a strong majority of the people by means of the eminently democratic process of a comparatively recent national referendum  6
The court therefore changed the obligations of the member state of Ireland.
Within this example the broadly stated concepts within the European Convention of Human Rights and the judgement of the Strasbourg court impose a set of beliefs contradictory to those commonly held by the people and against the domestic constitution of the Republic of Ireland. It can therefore be seen that the convention acts as a constitutional instrument above domestic constitution.
The European Convention of Human Rights concerns the rights and freedoms of Individuals and parties within the member states of Europe. All the member-states of the EU are parties to the ECHR and have accepted the jurisdiction of the European Court of Human Rights  7. From the viewpoint of public international law in a similar way all the member-states of the EU by definition have accepted the supremacy of European law. This concept is addressed in Article 1 of the convention;
“the high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this convention”  8
However the reach of the ECHR and the Strasbourg court has been known to extend beyond its defined member states.
Such an act is displayed in Soering V. the United Kingdom. Within this case Soering was facing extradition to the state of Virginia is the United States of America where he would be subject to the “death row phenomenon” considered by the EctHR to be a form of torture. The decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country  9. Virginia is outside of the ECHR and therefore is not party to its regulations against capital punishment or death row. However, Virginia had to compromise and limit its constitution in order to go forward with the trial of Soering. The court and convention should protect individual members national to their member states. However, when doing so against the constitutional laws in the country of which the violation occurred, the ECHR and the EctHR is acting above domestic constitution.
The European Convention of Human Rights appears to be supra constitutional, held with greater importance than domestic constitution. The court has the power to define the convention in a way which it seems feasible, defining concepts and also scope of concepts. The court enforces its own interpretation of the convention upon its member states. The court also extends at times beyond its limits, and influences the constitution of non member states. The protection of Human Rights is fundamental to the running of a peaceful and democratic society, and although the ECHR and EctHR may act above domestic constitution, at times it is necessary for the protection of individuals or groups within the member states of Europe. Ideology in society often changes as does what is acceptable in regards to Human rights, the Court should implement these changes to provide growth throughout Europe.
Books and Reports
Feldman, D, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002)
Gallagher, C, Mountfield, H, Prochaska, E. and Wadham, J, Blackstone’s Guide to The Human Rights Act 1998 (5th ed, 2009)
Lange, R, ‘The European Public Order, Constitutional Principals and Fundamental Rights'(2007) Erasmus Law Review, volume 1, Issue 1.
Lebeck, C , ‘The European Court of Human Rights on the relation between ECHR and EC-law: the limits of constitutionalisation of public international law’ (2007)
Loveland, I, ‘Incorporating the European Convention on Human Rights into UK Law’ (1999) Parliamentary affairs
Case of Ireland v. The United Kingdom (1979)
(Application no. 5310/71)
Case of Open Door and Dublin Well Woman v. Ireland (1992)
(Application no. 14234/88; 14235/88)
Case of Soering v. The United Kingdom (1989)
(Application no. 14038/88)
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