The Convention for the Protection of Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights) entered into force in 1953, inaugurating the first regional human rights system. It has been revised several times through a series of protocols and, in 1998, the European Court of Human Rights became the first full-time human rights court in the world. All the member States of the Council of Europe are parties to the Convention. The right of individual petition is inherent in the Convention system, and the Court’s judgements are legally binding on the States parties.
The 47 judges of the Court are elected by the Parliamentary Assembly. Cases are heard by chambers of seven judges, and important cases may be referred to a Grand Chamber of 17 judges. The execution of the Court’s judgements is overseen by the Committee of Ministers.
128 Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, the Republic of Moldova, Romania, the Russian Federation, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, and the United Kingdom of Great Britain and Northern Ireland.
In appropriate circumstances, an applicant may be awarded legal aid by the Court and, in the event of a finding of violation, may also recover necessary expenses incurred in the preparation of the case. However, this assistance only becomes potentially available after the respondent Government has been asked for its observations on the admissibility of the application. Unlike in some domestic legal systems, applicants cannot be required to pay legal costs incurred by the State against which a claim is brought.
The Court considers a large number of individual cases as well as inter-State cases (rarely), and its jurisprudence is enormous.129 In recent years, 40,000 to 50,000 applications have been lodged annually. The summary below can only outline certain issues that have arisen in connection with minorities in cases before the Court.
The Convention contains no minority rights provision akin to article 27 of the International Covenant on Civil and Political Rights. Therefore, there is no way in which members of minority groups can directly claim “minority rights” before the European Court of Human Rights.
Nevertheless, a number of rights guaranteed by the Convention may be invoked in relation to the protection of minorities.
The Convention and minority rights
Many of the rights contained in the Convention for the Protection of Human Rights and Fundamental Freedoms are relevant to minorities, but the phrase “national minority” appears in only two of its articles.
Article 14 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”.
Article 14 is not a free-standing right to non-discrimination, and it may be raised only in connection with another Convention right. Despite its limitations, article 14 has in recent years been invoked successfully to address concerns of minorities, in particular Roma. In Gaygusuz v. Austria (1996) the Court found a violation of article 14 read in conjunction with article 1 of Protocol No. 1 with respect to the difference in treatment between Austrians and non-Austrians as regards their entitlement to emergency assistance. In Nachova v. Bulgaria (2005) the Court found for the first time a violation of the principle against racial discrimination contained in article 14 (read in conjunction with art. 2, on the right to life) in that the authorities had failed to investigate possible racist motives behind the shooting of Roma by military police. In D. H. and Others v. the Czech Republic (2007) the Court further developed its jurisprudence under article 14, finding that the disproportionately high placement of Romani students in so-called “special schools” for children with mental disabilities violated the right to be free from racial discrimination (read in conjunction with art. 2 of Protocol No. 1, on the right to education). This was further upheld in Oršuš and Others v. Croatia (2010) when the Court ruled that “the placement, at times, of the applicants in Roma-only classes during their primary education had not been justified, in violation of Article 14 taken together with Article 2 of Protocol No. 1”. In Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (2008) the Court found a violation of article 14 read in conjunction with article 9 as regards the way in which religious communities were granted the status of a religious society.
Protocol No. 12, which entered into force in 2005, creates a general prohibition against discrimination in the application of any right guaranteed by law or by any public authority. Thus,
129 See www.echr.coe.int.
it is no longer necessary to link an allegation of discrimination to a specific substantive right set out in the Convention.
Discrimination is not limited to those cases where a person or group is treated worse than another group. It may also constitute discrimination to treat different groups as if they were alike, that is, to treat a minority and a majority alike may discriminate against the minority. The Court has endorsed positive measures taken to improve the situation of minorities as being compatible with the principle of non-discrimination. The Court has stressed that “democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position”
(Chassagnou and Others v. France (1999) and Gorzelik and Others v. Poland (2004)).
In 2009, the Court ruled that provisions in the constitution of Bosnia and Herzegovina that restricted certain political offices to members of the three “constituent peoples” of the State (Bosniacs, Croats and Serbs) violated article 14 of the Convention, taken in conjunction with article 3 of Protocol No. 1 which guarantees elections “which will ensure the free expression of the opinion of the people”, as well as the general prohibition of discrimination under article 1 of Protocol 12. The applicants were of Roma and Jewish origin, respectively, and thus were ineligible under the law of Bosnia and Herzegovina to stand for election to one house of the parliament or to the presidency of Bosnia and Herzegovina (Sejdic and Finci v. Bosnia and Herzegovina (2009)).
A number of cases brought under the Convention have dealt with linguistic rights. The Strasbourg institutions have consistently held that there is no right to use a particular language in making contact with Government authorities, but, in the context of judicial proceedings, everyone has the right to be informed promptly, in a language he or she understands, of the reasons for arrest (art. 5 (2)) and the nature of any criminal charge (art. 6 (3)(a)); there also is a right to a free interpreter if a defendant cannot speak or understand the language used in court (art. 6 (3)(e)).
Article 8 of the Convention provides for the right to respect for an individual’s private and family life, home and correspondence. In Yordanova and Others v. Bulgaria, concerning a planned eviction of Roma from a settlement in Sofia, the Court held that in the context of article 8, the applicants’ specificity as a socially disadvantaged group, as well as their particular needs, had to be considered in the proportionality assessment and that the enforcement of the removal order against the applicants would constitute a violation of article 8.
Article 10 guarantees the right to freedom of expression and thus protects the right to use a minority language in private or among members of a minority group. Minorities have a right to publish their own newspapers or use other media without interference by the State or others.
Protocol 2, article 2, states that no person shall be denied the right to education. The education of children belonging to the group is another means of protecting a minority’s identity. While under the Convention there is no right per se to education in one’s mother tongue, the discontinuance of mother-tongue education may in certain circumstances violate the right to education (Cyprus v. Turkey (2001)).
Article 9 enshrines the right to freedom of thought, conscience and religion. The individual right to freedom of religion includes the right to manifest that religion, which implies that a minority is to have the necessary degree of control over community religious matters. The Court has held that the State must not interfere in the internal affairs of a church and that “freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it” (Serif v. Greece (1999)).
The State may limit manifestation of a minority’s religion only for reasonable and objective reasons.
[W]here the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the Convention which safeguards associative life against unjustified State interference. Seen in this perspective, the believer’s right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable (Hasan and Chaush v. Bulgaria (2000)).
Furthermore, according to the Court, “a minority group is, in principle, entitled to claim the right to respect for the particular life style it may lead as being ‘private life’, ‘family life’ or ‘home’”
under article 8 of the Convention (G. and E. v. Norway (1983)).
The Court has recently recalled, referring to the Framework Convention for the Protection of National Minorities, that “there is an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle ... , not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community …. [T]he force of the collective beliefs of a community that is well defined culturally cannot be ignored” (Munoz Diaz v. Spain (2009)). In this case, the Court found it to be disproportionate for Spain – which had issued the applicant and her Roma family with a family record book, granted them large-family status, afforded health-care assistance to her and her six children and collected social security contributions from her Roma husband for over 19 years – to refuse to recognize the effects of their Roma marriage when it came to a survivor’s pension.