Legal English- werkzitting 3
1. What it means that the European Convention on Human Rights (ECHR)
is a “living instrument”
Saying the ECHR is a living instrument means that the rights it enshrines are not
“frozen” in the values, social conditions, or technologies of 1950 (when it was
adopted) — instead, the rights are interpreted in light of present-day conditions, so that
the Convention remains relevant as societies evolve. (British Institute of Human
Rights)
Concretely, that implies that the court interpreting ECHR (European Court of Human
Rights — ECtHR) can expand or adapt the meaning of the Articles to cover situations
unknown in 1950 (e.g. modern communication technologies, new forms of
discrimination, social changes, accessibility needs, etc.). (Portal)
This doctrine helps ensure the Convention remains effective — protecting “practical
and effective” human rights rather than “theoretical and illusory” ones. (Wikipedia)
So in short: “living instrument” = dynamic, evolving interpretation; the Convention is not
static, but adapts over time to societal, technological, cultural changes.
2. Three examples of human rights protected by the ECHR
Here are three important rights, with explanation of what exactly is protected.
Right Article(s) What is protected / what it means
This protects the right to hold opinions, to
receive and impart information and ideas. That
Freedom of Article 10 ECHR includes media, public discourse, journalism,
expression (Wikipedia) art — but with possible restrictions (e.g. for
protection of national security, public safety,
morals, rights of others). (Wikipedia)
This covers the freedom to change one’s
Freedom of religion or belief, and to manifest religion or
thought, Article 9 ECHR belief (worship, teaching, practice,
conscience and (Wikipedia) observance), subject to lawful and necessary
religion restrictions as per a democratic society.
(Wikipedia)
Right to education Article 2 of Protocol No. This guarantees that State parties must not
(non- 1 to the European deny the right to education on discriminatory
discrimination / Convention on Human grounds; every person should have equal
equal access) Rights (as read with non- access to education. In practice, this means,
discrimination under for example, schools must not exclude
Article 14) (Readkong) someone simply because of a disability, unless
there is a reasonable, objective and justified
reason — and in many cases they must
provide reasonable accommodation. (See also
, Right Article(s) What is protected / what it means
the reasoning in the case discussed below.)
Other rights protected by the ECHR include the right to life, prohibition of torture / inhuman
or degrading treatment (Article 3), right to a fair trial (Article 6), right to respect for private
and family life (Article 8), etc. (ECHR)
! some articles have exceptions!
Absolute right = no exceptions
3. What obligations do States Parties have under the ECHR?
States that ratify the ECHR commit to guarantee the rights and freedoms listed in the
Convention (and its Protocols) for all individuals under their jurisdiction. Examples of such
obligations:
Negative obligations: States must refrain from interfering with the rights and
freedoms protected by the Convention (e.g. not arbitrarily detain people, not censor
freedom of expression in an unjustified way, not discriminate, not subject people to
torture or inhuman treatment).
Positive obligations: In some cases, States must actively take measures to secure
rights — for instance, ensure that individuals can effectively enjoy their rights, even if
that requires adapting laws or providing accommodations. For example, in the area of
disability rights, schools or public institutions may need to provide “reasonable
accommodations” so that disabled persons can enjoy the right to education on equal
terms. This has been recognized by the Court. (Göçmen Hukuk Bürosu)
Non-discrimination: Under Article 14 (and other relevant provisions), States must
ensure that rights are enjoyed without discrimination on grounds such as race, religion,
disability, etc. That means not treating similar persons differently without objective
and reasonable justification, and sometimes giving differential treatment (e.g.
accommodations) when needed to ensure equal opportunity. (ECHR)
In sum: States must both refrain from violating Convention rights, and where necessary take
proactive steps to ensure individuals can effectively enjoy those rights.
4. Factual circumstances of Çam v. Turkey (Application no. 51500/08, 23
February 2016)
1. What it means that the European Convention on Human Rights (ECHR)
is a “living instrument”
Saying the ECHR is a living instrument means that the rights it enshrines are not
“frozen” in the values, social conditions, or technologies of 1950 (when it was
adopted) — instead, the rights are interpreted in light of present-day conditions, so that
the Convention remains relevant as societies evolve. (British Institute of Human
Rights)
Concretely, that implies that the court interpreting ECHR (European Court of Human
Rights — ECtHR) can expand or adapt the meaning of the Articles to cover situations
unknown in 1950 (e.g. modern communication technologies, new forms of
discrimination, social changes, accessibility needs, etc.). (Portal)
This doctrine helps ensure the Convention remains effective — protecting “practical
and effective” human rights rather than “theoretical and illusory” ones. (Wikipedia)
So in short: “living instrument” = dynamic, evolving interpretation; the Convention is not
static, but adapts over time to societal, technological, cultural changes.
2. Three examples of human rights protected by the ECHR
Here are three important rights, with explanation of what exactly is protected.
Right Article(s) What is protected / what it means
This protects the right to hold opinions, to
receive and impart information and ideas. That
Freedom of Article 10 ECHR includes media, public discourse, journalism,
expression (Wikipedia) art — but with possible restrictions (e.g. for
protection of national security, public safety,
morals, rights of others). (Wikipedia)
This covers the freedom to change one’s
Freedom of religion or belief, and to manifest religion or
thought, Article 9 ECHR belief (worship, teaching, practice,
conscience and (Wikipedia) observance), subject to lawful and necessary
religion restrictions as per a democratic society.
(Wikipedia)
Right to education Article 2 of Protocol No. This guarantees that State parties must not
(non- 1 to the European deny the right to education on discriminatory
discrimination / Convention on Human grounds; every person should have equal
equal access) Rights (as read with non- access to education. In practice, this means,
discrimination under for example, schools must not exclude
Article 14) (Readkong) someone simply because of a disability, unless
there is a reasonable, objective and justified
reason — and in many cases they must
provide reasonable accommodation. (See also
, Right Article(s) What is protected / what it means
the reasoning in the case discussed below.)
Other rights protected by the ECHR include the right to life, prohibition of torture / inhuman
or degrading treatment (Article 3), right to a fair trial (Article 6), right to respect for private
and family life (Article 8), etc. (ECHR)
! some articles have exceptions!
Absolute right = no exceptions
3. What obligations do States Parties have under the ECHR?
States that ratify the ECHR commit to guarantee the rights and freedoms listed in the
Convention (and its Protocols) for all individuals under their jurisdiction. Examples of such
obligations:
Negative obligations: States must refrain from interfering with the rights and
freedoms protected by the Convention (e.g. not arbitrarily detain people, not censor
freedom of expression in an unjustified way, not discriminate, not subject people to
torture or inhuman treatment).
Positive obligations: In some cases, States must actively take measures to secure
rights — for instance, ensure that individuals can effectively enjoy their rights, even if
that requires adapting laws or providing accommodations. For example, in the area of
disability rights, schools or public institutions may need to provide “reasonable
accommodations” so that disabled persons can enjoy the right to education on equal
terms. This has been recognized by the Court. (Göçmen Hukuk Bürosu)
Non-discrimination: Under Article 14 (and other relevant provisions), States must
ensure that rights are enjoyed without discrimination on grounds such as race, religion,
disability, etc. That means not treating similar persons differently without objective
and reasonable justification, and sometimes giving differential treatment (e.g.
accommodations) when needed to ensure equal opportunity. (ECHR)
In sum: States must both refrain from violating Convention rights, and where necessary take
proactive steps to ensure individuals can effectively enjoy those rights.
4. Factual circumstances of Çam v. Turkey (Application no. 51500/08, 23
February 2016)
