The European Convention on Human Rights (originally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a regional, supranational human rights treaty, drafted and administered by the Council of Europe, an independent international organization based in Strasbourg, France. The convention has played an important role in outlining the limits of governmental authority to conduct domestic (and international) surveillance as well as privacy protections. This entry reviews the provisions of the convention and discusses its application with regard to surveillance, security, and privacy.
The convention was drafted in November 1950 under the auspices of the newly formed Council of Europe, and it entered into force on September 3, 1953. The text of the convention is produced both in English and in French, both versions being equally authentic.
The convention also established the European Court of Human Rights, also based at Strasbourg, as a supranational human rights court with the authority to rule on cases involving convention rights. Importantly, the convention and the Council of Europe should not be confused with the European Union (EU) and its various legal and political bodies or legal instruments. As of 2017, all 47 Council of Europe member states had signed the convention, including all 28 member states of the EU. After adoption of the Treaty of Lisbon, the EU is obligated to ratify the convention as well, as a distinct legal entity. The convention was modified in 2010 with Protocol 14 to provide the legal basis for EU succession, which would put the EU itself under the external oversight of the European Court of Human Rights.
Uniquely, the convention allows individual persons, groups of individuals, and nongovernmental organizations (rather than merely signatory governments) to claim violations of their rights by their individual governments’ signatory to the convention. These claims may be brought before the European Court of Human Rights after all domestic legal remedies have been exhausted. Because the convention lays out a number of broad rights with minimal explanatory text, the European Court of Human Rights has played a vital role in interpreting the convention rights and has developed a robust case law, including on issues of privacy, surveillance, and security.
The convention has a long history of being used as the legal basis for claims by individuals challenging state surveillance on privacy grounds (particularly under Article 8, which guarantees a right to privacy expressed as the right to respect for private and family life). As such, the European Court on Human Rights has played an important role in outlining the limits of governmental authority to conduct domestic (and international) surveillance. A number of cases challenging state surveillance activities have come before the court in the past few decades, including Klass and Others v. Germany (1978), Malone v. the United Kingdom (1984), Weber and Saravia v. Germany (2006), Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (2007), Liberty v. the United Kingdom (2008), and Iordachi and Others v. Moldova (2009). In Klass, which set the groundwork for future cases, the court held that a person may claim a violation of his or her convention right to privacy “by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him.” Despite liberal rulings on standing (or the right of a person to bring a claim), the court has also held that, due to the increasingly sophisticated nature of international terrorism, states may be justified, in extraordinary circumstances, in enacting legislation that provides for secret surveillance of physical or electronic communications. Generally, the court has interpreted the convention to require the states to show that surveillance measures have been carried out in accordance with existing law (such a law must also be adequately accessible and sufficiently precise to allow a person to regulate his or her conduct accordingly), that the measures are limited to those necessary in a democratic society, and that they are compatible with the general rule of law.
Bryce Clayton Newell
See also Civil Liberties ; Global Surveillance ; London, England, Surveillance in ; Privacy ; Privacy, Right to
Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, 2007 ECHR 533 (2007).
Council of Europe. Convention for the Protection of Human Rights and Fundamental Freedoms (the text of the Convention). http://conventions.coe.int/treaty/en/treaties/html/005.htm (Accessed October 2017).
Council of Europe. European Convention on Human Rights: A Convention to Protect Your Rights and Liberties. https://www.coe.int/en/web/human-rights-convention (Accessed October 2017).
Council of Europe. Statistics: Violations by Article and by States (1959–2013). http://www.echr.coe.int/Documents/Stats_violation_1959_2013_ENG.pdf (Accessed October 2017).
Gomien, Donna. Short Guide to the European Convention on Human Rights (3rd ed.). Strasbourg, France: Council of Europe, 2005.
von Hannover v. Germany (no. 2), ECHR 228 (2012).
von Hannover v. Germany, ECHR 294 (2004).
Iordachi v. Moldova, ECHR 256 (2009).
Klass and Others v. Germany, ECHR 4 (1978).
Liberty v. United Kingdom, ECHR 568 (2008).
Malone v. United Kingdom, ECHR 10 (1984).
Newell, Bryce Clayton. “The Massive Metadata Machine: Liberty, Power, and Mass Surveillance in the U.S. and Europe.” I/S: A Journal of Law and Policy for the Information Society, v.10 (2014).
Peck v. United Kingdom, ECHR 44 (2003).
Rainey, Bernadette, et al. Jacobs, White & Ovey: The European Convention on Human Rights. Oxford, England: Oxford University Press, 2014.
Sciacca v. Italy, ECHR 8 (2006).
Weber and Saravia v. Germany, ECHR 1173 (2006).