As the Parliamentary Assembly of the Council of Europe said, the European Convention on Human Rights has a fundamental role. It assures the protection of individuals and creates positive obligations for States to ensure such a protection on behalf of common values of the High Contracting Parties. Described as an "instrument of protection of human beings", the Convention is an objective instrument that founds the common solidarity, which is expressed within the creation of a collective safeguard of human rights. Because the protection of these rights forms a part of the culture shared by the contracting States, the Convention provides a real public action and gives the States the duty of ensuring collectively and in solidarity the safeguard of the rights contained in it.
[...] Article 33 of the ECHR. EctHR. Supra note 2. [vii] In Handyside v UK (1976), ECtHR, paragraph 48. [viii] United Kingdom. Title of the HRA 1998. Saunders v UK (1996), EctHR. For instance, in Re McKeer (2004) case, Lord Hoffmann: court adjudicating in litigation in the UK about a “domestic Convention right” is not bound by a decision of the Strasbourg court. It must take it into account”. [...]
[...] Contrariwise, and for similar facts, the House of Lord, in the Brown v Stott case (2001), issued an opposite decision, and the Strasbourg case law was described as being “unsatisfactory and unconvincing”. However, even if the High Court has reaffirmed at various times that it is not compulsory to follow Strasbourg jurisprudence,[xi] it is obvious to admit that the latter is most of the time followed. A relevant case here should be the E v Secretary of State for Education and Employment (2002) one, where the Court of Appeal stated that the court “must tread very carefully even where it thinks that rulings by the Court or Commission may eventually prove to have been mistaken”. [...]
[...] Nonetheless, if the State has such a power of discretion, it is once again the Court who has the power to control these restrictions, and who remains, therefore the ultimate guardian of the Convention. If the Court has been undoubtedly very proactive in the protection of human rights, some areas are still not covered by the Convention's law, such as the question of the beginning of the life, and further, the question of the right to have an abortion. Indeed, the Court is inclined to avoid to rule on too sensitive issues, like in its Open Door case.[xxvi] But most importantly, one has to admit that some States of the Council of Europe continue to violate fundamental rights which are not allowed to be restricted, such as the prohibition of torture. [...]
[...] [xii] ECHR. [xiii] Lord Steyn in R v DDP (1993). [xiv] Donoghue v Popular Housing and Regeneration Community Association Limited (2001). John WADHAM, Helen MOUNTFIELD, Anna EDMUNDSON, Caoilfhionn GALLAGHER, Blackstone's Guide to The Human Right Act 1998 (Oxford University Press, 2007). [xvi] Airey v Ireland (1979), EctHR, paragraph 24. [xvii] Article 6 ECHR. [xviii] Supra note 16. [xix] Article 2 of the Convention. LCB v UK (1986), EctHR. [...]
[...] Also, the Court has deduced from the text new rights, considering them as inherent to the minimum protection provided in the Convention. For instance, concerning the right to a fair trial,[xxi] the Court has created the right for everyone to not testify against oneself.[xxii] The Court has also ruled in its Selmouni[xxiii] case that, when torture against a detainee is established, the latter does not necessarily have to exhaust all the internal remedies to bring a claim before the Strasbourg's organs. [...]
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