The Court was set up as one of the mechanisms for operation of the Convention and is located in Strasbourg. Information regarding the operation of the court can be obtained at www.echr.coe.int.
Structure of the rights and their interpretation by the ECHR
The rights can be broken down into those that are:
- Absolute – without qualification e.g. Article 3.
- Limited – on their face e.g. Article 5.
- Qualified by reference to competing public interests e.g. Article 8.
Some general principles in interpreting the Convention Articles:
The rule of law/interference in accordance with the law:
There should be no interference with a protected right unless the citizen knows in advance the basis for the interference because it is set out in an ascertainable law.
There must be an ascertainable legal regime governing the interference in question (see for example Sunday Times v UK (1979) 2 EHRR 245:
“Firstly the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct”).
Legitimate Aims:
Any interference by a public authority with a qualified Convention right must be directed towards an identified legitimate aim. However the Convention provides reasons for restricting rights e.g. Article 8 – legitimate aims set out in second part of the Article – “the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (see for example Handyside v UK (1976) 1 EHRR 737).
In an immigration context see the case of Razgar (2004) UKHL 27 (‘Razgar’.) It is now generally accepted that ‘maintenance of proper immigration control’, although not a legitimate aim in itself, is in accordance with the legitimate aims set out in Article 8.
Proportionality:
Is the interference with a Convention right “necessary in a democratic society”? Limitation from a non-absolute right must be justified in the sense of being “proportionate to the legitimate aim pursued”. However even if the state action is in pursuance of a legitimate aim, this will not justify violation if the means to secure it are shown to be excessive. In an immigration context see Razgar.