The UK Human Rights Act 1988 - Coursework Example

Article 3 of ECHR and UK’s Human Rights Act 1988- An Analysis Article 3 of the European Convention on Human Rights (ECHR) bars torture, humiliating or inhuman punishment or treatment. The European Court of Human Rights (Court) has made wide-ranging case laws on both procedure and substance. The type of punishment which Article 3 prohibits depends upon the causes of humiliation and suffering if it exceeds the foreseeable aspect of humiliation and suffering, which should be natural in any guise of legitimate criminal punishment1. In Ireland v UK2, the Court observed that ill treatment should reach a least level of severity before it can be regarded as degrading or inhuman punishment or treatment. In this case, the Court observed that inhuman treatment includes the unleashing of violence by police officials resulting in extreme physical injury and suffering3. Thus, to establish degrading or inhuman treatment, Strasbourg Court has framed a high yardstick for such treatment falling within the ambit of Article 3. As held in the Greek case (1969)4, it must surpass a “certain roughness of treatment”. In 1990, Ireland filed a case against UK for human rights violation in Northern Ireland by employing tactics like by deprivation of drink and food, hooding, wallstanding, deprivation of sleep and continuous loud noise to prisoners. ECHR held that these were against the rights guaranteed under Article 3 although it did not meet the requirements of torture within the meaning of degrading or inhuman treatment. After this, British army virtually stopped these types of torture5. In Jabari v Turkey6, the applicant alleged to have committed adultery in Iran, which is an offence under Iranian law for which stoning till to death is the punishment prescribed for. However, the Court viewed that kind of sentence was against the spirits of Article 3 and if any order of her deportation to Iran would be in infringement of the Article 37. In case of proportionality and harshness of the punishment, the Court will consider the rationale of the punishment and whether such a rationale involves the debasement or gratuitous humiliation of the victim. In Tyrer v United Kingdom8, the judicial corporal punishment which was given to the applicant was degrading and inhuman punishment as it is against the Article 3 which ensures physical integrity and individual’s dignity9. As a positive duty of the state, in R v Secretary of State for Home Department ex parte Limbuela 200510, it was held that any refusal to offer any monetary assistance to asylum seekers and barring them from employing, thereby making them destitute will also be regarded as violation Article 3 of ECHR11. One another positive duty is being imposed by Article 3 of ECHR that an aggrieved person should not be deported to a nation where such person is expected to be persecuted or there will no safeguard against persecution as held in Dashamir Koci v Secretary of for the Home Department 2003 and in Chahal v UK 199612. When children are abused by their own parents, State should have initiated measure to safeguard them and any inaction by the state shall be construed as an infringement of Article 3 as held in 13Z v United Kingdom. In A v United Kingdom, ECHR held that the UK had infringed Article 3 when a young boy was tortured by his stepfather14. Section 6(1) of the HRA makes it unlawful for public officials to function in a style which is not compatible with a right under Convention. Further, by the virtue section 2(1) HRA, Courts in UK are necessitated in deciding questions that emanate under the Act to take into account of jurisprudence of Strasbourg Court. The rights under Convention that bind public officials are detailed out in Schedule 1 of HRA, which includes rights conferred under Article 3 of ECHR. In D v United Kingdom15, it was held that a HIV patient could not be deported to a home country where there was non-availability of advanced medical facilities. Article 3 has been applied to cover social decay and circumstances of impoverishment in non- Convention states. In R (Adam, Limbuela and Tesema) v Home Secretary, the above said extended condition was applied by House of Lords to override any law or regulation that bar the extension of the social support to asylum seekers who could not produce their claims within the stipulated time. The interesting point here is that the House of Lords went to the extent of viewing the refusal of social support was regarded as inhuman treatment and torture, which demonstrates that how far the Convention has a far reaching impact to grant economic and social rights where a high standard of medical care , accommodation and social services that can be guaranteed through the rights available under Convention16. In N v UK17, Strasbourg Court viewed that expulsion will not be regarded as an infringement of Article 3 even if the eviction of any individual having any grave mental or physical illness, which will result in pain, suffering and decreased life span and who may need an advanced medical treatment which may not be available in the plaintiff’s native country or where he has to spend a huge amount. In Gafgen v Germany18, Grand Chambers viewed as inhuman treatment the action of police officials who threatened the plaintiff with imminent pain for the purpose dwelling out the truth which falls within the ambit of Article 3. However, they also observed that this type of interrogation could not be regarded to reach the level of cruelty to attain the stage of torture under the provision. However, in D v UK, it was held that if the applicant who was suffering from HIV/AIDS if sent back to a small island namely St. Kits, then it would be regarded as a violation of Article 3. In Ahmed v Austria19, it was held that Article 3 bars the deportation of a convicted armed burglar to Somalia since there was a risk that he might get wrangled in the civil war at Somalia. In A v UK20, Strasbourg Court held that Article 3 should be applied to the style what Parliament administers the “ reasonable reprimand “ of kids by their parents in the home which invited wide criticism from high places. Article 3 of ECHR and its Binding on UK Since 1640, there has been no lawfully ban on torture in UK. In A and others v Secretary of State21 , there was lucid description about how torture was banned in UK in common law. There was a ban on unusual and cruel punishment in the Bill of Rights in 1689. As per section 134 of the Criminal Justice Act 1988, a public official can be condemned if he carries out torture to a UK citizen or a non-citizen in UK and even if such torture has been committed even outside the UK. For instance, an Afghan warlord, Farvadi Zardad, was the first ever foreign national who has been convicted by a UK court for crimes carried out in abroad (Afghanistan) in 2005. It was argued by the Attorney General of UK that Zardad’s crimes were so cruel and such an insult to justice, and hence he could be tried at any nation. Both the English law and an International convention authorise to carry on the trial in UK on anyone who has indulged in hostage-taking or torture despite the fact where these crimes were carried out22. Positive duties on UK Government and UK Officials A young Ukrainian woman in Northern Ireland who was under a work permit suffered due to frostbite in 2004 and as such, both of her legs had to be amputated. Due to this, she lost her employment. Article 3 of the ECHR imposes a positive duty on the state to help such indigent persons as in the case of young woman illustrated above and to bar such individuals from experiencing suffering from a kind that enshrined in the Article23. Both the ECHR and the case law in the UKs domestic courts reveals that access to healthcare has a repercussion for the State’s obligations under Article 3 of the ECHR as migrants may be singled out for having some forms of health care being denied to them. ECHR has held that Article 3 has been infringed where state officials fail to carry out a satisfactory investigation of an accusation that someone has been the victim of degrading or inhuman treatment. The satisfactoriness of investigation is evaluated having regard to the velocity with which it is initiated, the independence of the investigators of the state, the efficiency and the vigour it is being carried out. Thus, any inadequacy of investigation will be treated as an infringement of Article 3 of the ECHR. This has been affirmed in various cases like Kaya v Turkey24 , Yasa v Turkey25 , and in Saite v Turkey Application where it has been observed that there was ineffective investigation and hence it was construed as an infringement of Article 3. Article 3 of the ECHR requires the UK legal system to offer to safeguard from assault not only from just agents of the state but also from other individuals which is known as Drittwirkung impact. Article 3 of ECHR also prohibits the unleashing inhuman treatment on individuals by private individuals other than the agent of the State, and this is known as Drittwirkung effect. In A v.the United Kingdom26, a boy was badly beaten by a step father and while prosecution made against him, he pleaded defence under “parental punishment “. However, on appeal, Strasbourg Court pointed out that UK legal system failed to prevent such treatment. The Court emphasised that UK government should introduce initiatives to prevent inhuman or torture or punishment to an individual by another individual. “Negative Obligation under Article 3 ECHR” A negative commitment is one whereby a State is needed to desist from intrusion. A negative obligation can be said to be the case where State unleashes unlawful violence on an individual and where an individual is subject to the hardship by a State due to the lawful policies of such State as held in “R (Limbuela) v. Secretary of State for the Home Department27”. In both the above-mentioned cases, State unleashes suffering against the individuals, and, in this manner, both cases illustrate how State is involved prima facie thereby infringing its negative commitment to bar from interference. A State cannot authorise unleashing of illegal violence against individuals in tune with State policy, as such policy is outside of the law itself. It can, therefore, be disputed that negative duty under Article 3 can be differentiated by the veracity of the law to re-examine the relevant acts28. Member States are having an absolute commitment not to introduce any initiatives, which would subject the people to risk under Article 3 –ill-treatment and this is a negative obligation. In Osman v UK29, it was observed that the obligation must be deduced in a style which does not inflict a disproportionate or impossible encumbrance on the officials. However, if the obligation is not to expropriate somebody as he faces a major risk in his home country, then it will be regarded as a negative obligation and hence, it is an absolute obligation30. As per Vermeulen, the rationale behind taking the help of Article 3 in deportation cases is that the State which involved in deportation infringes the Article 3 if its act of deportation tantamount the vital link in the sequence of events resulting in the treatment or punishment which is in opposition to the norms of Article 3 where such person is being sent back. Hence, there is a real peril of treatment, which is divergent to Article 3 in the country of deportation as the receiving country has a negative duty to stop from deporting the individual31. Procedural Duties under Article 3 of ECHR Article 3 of ECHR contains procedural aspects like a commitment to examine prima facie contention of torture and inhuman treatment. Any letdown to examine not only infringes of the procedural features, but, also the effect of a non-reactive system which can tantamount to vicarious accountability for family members. In Kurt case, it was held by the court that the applicant had experienced an infringement of Article 3 having regard to specific scenarios of the case. If a family member suffers injury due to procedural infringement of Article 3 due to sluggishness of the judicial officials, then it will rest upon the subsistence of special factors, which gives the suffering of the applicant. Bibliography Bailey, S.H, Cases, Materials and Commentary on Administrative Law 4th edition (Sweet & Maxwell 2005) 372 Erdal, U & Bakirci, H, Article 3 of the European Convention on Human Rights (OMCT2006) 1 Fairgrieve, D & Green S, Child Abuse Tort Claims Against Public Bodies: A Comparative Law View (Ashgate Publishing Ltd 2008) 28 Fenwick, H & Glancey, R, ‘Q & A Civil Liberties & Human Rights 2013 -2014’ (Taylor & Francis 2013) xi House of Commons Joint Report, Legislative Scrutiny, Borders, Citizenship and Immigrations. ( The Stationary Office 2009) 122 Juss, S S, International Migration and Global Justice (Ashgate Publishing Ltd 2006) 137 Martin F F, International Human Rights and Humanitarian Law (Cambridge University Press 2006) 321 Nen E N & Nykanen E, Fragmented State Power and Forced Migration. A Study on Non-State Actors (Martin Nijhoff 2012) 221 Phillipson, F M, Judicial Reasoning under the UK Human Rights Act (Cambridge University Press 2006) 46 Journal Article Wartchhow, L, ‘Civil and Human Rights Violations in Northern Ireland ‘(2005) Northwestern Journal of International Human Rights Vol 3 Websites BBC News, Afghan Warlord Guilty of Torture< http://news.bbc.co.uk/2/hi/uk_news/4693239.stm > accessed 25 February 2013 Rose Grieve, Article 3 ECHR: A Multi-layered Right, with Unique Tensions. accessed 25 February 2013 Your Rights.Org Article 3 Prohibition of Torture < http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-3-prohibition-on-torture.html > accessed 25 February 2013 Cases A and others v Secretary of State A v UK A v United Kingdom Ahmed v Austria Chahal v UK D v United Kingdom Gafgen v Germany Ireland v UK Jabari v Turkey Kaya v Turkey Koci v Secretary of for the Home Department Kurt N v UK Osman v UK R (Adam, Limbuela and Tesema) v Home Secretary R (Limbuela) v. Secretary of State for the Home Department R v Secretary of State for Home Department ex parte Limbuela Saite v Turkey Tyrer v United Kingdom Yasa v Turkey Z v United Kingdom. Statutes European Commission on Human Rights Human Rights Act ,1988 Read More