European Convention on Human Rights - the Rights of Detainees - Essay Example

Page Public Law (European Convention on Human Rights The Rights of Detainees This paper is aimed at critically reviewing the extent to whichit can be considered that the English Courts have upheld the responsibility within the European Convention on Human Rights to treat people with dignity and respect. The focus has been put on the issue of the rights of detainees. Owing to the allegations of human rights violation by the UK government in the course of the War on Terror, the question of detainees’ rights has emerged as a complicated issue. The issue of the rights of the detainees is a very complex and dynamic legal debate and sometimes it may amount to ethical and technical dilemmas. The executive has often been entangled in serious allegations vis-a-vis the detainee rights and after 9/11 Terror Attacks, the legal system of the western countries like UK and USA has often come under close scrutiny and criticism by conservatives, liberals, immigrants and human rights activists. However, despite the criticisms, the human rights protection legislation framework in UK has reasonably protected the rights of the detainees and in the 21st century, the English Courts have considerably upheld the issue of human rights in a sensible way. The first point of argument is that the situation of the rights of detainees in UK is much better at least after the enactment of the Human Rights Act1. Unswerving incorporation of the European Convention directives into the English statutory instruments appears to have led to a constructive and effective justice system in the country. Although the inclusion of the European Convention on Human Rights2 in the human rights legislation of UK could have given rise to a continued dilemma between domestic and international law enforcement, things like that did not occur. The Convention provides much flexible yet practical ways to orchestrate its provisions with the domestic laws. For example, in the case of Ocalan v Turkey (2005), Article 33 of the Convention was applied to deter the overly harsh judgement of the Turkish State Security Court.4 Thus the Convention has been looked upon as a force to protect the detainees from unfair treatment even in the face of stricter domestic laws and prejudices of the local courts.5 And in UK, the situation appears to be appreciably healthier. There are two reasons behind such a conclusion. Firstly, the Human Rights Act in UK has been highly orchestrated with the Convention. According to Donnelly, Britain’s pronouncement in 1997 to integrate the European Convention almost directly into the British Law has been a remarkable example of interpenetration of international and national human rights concepts. Secondly, the Human Rights Act6 has formed a strong framework of justice and law enforcement in technical conjugation with the legislations like Equality Act7, Criminal Justice Act8, Sex Discrimination Act9, etc. The rights of the detainees are closely associated with the status they have and treatment they receive in the course of detention. In spite of the superfluity of international regulations regarding this area of law enforcement, satisfactory prison conditions collinear with the internationally acknowledged standards have not yet been achieved even in the developed countries like UK. “First, the fact of lawful imprisonment itself might lead to a re-evaluation of the standards expected in prisons and the acceptability of certain practices such as social isolation, which outside the context of imprisonment might be regarded as inhuman and degrading. Secondly, and related to the first issue, adjudicative bodies might take into consideration the dangerousness of the offender and the need to guarantee prison order and public safety in assessing whether international standards have been violated.”10 Hence, the issue of basic human rights is needed to be reflected on in order to simplify the legal debacles regarding detainees’ rights. According to Owers, in Britain, the juridical safeguard of the prisoners' rights, by the means of the courts, has played a less important role than it has in USA - though the mechanism has been a significant vehicle to provide individual remedy and promoting universal change. Further, “The UK lacks a written and justifiable constitution, which can override legislation and underpin fundamental rights.”11 Although this sort of interpretation cannot be fully justified, the complicated situation of the detainee rights in the country cannot be overlooked. Yet, the sensitivity of the English Courts towards the victims of war crimes can be understood via the cases like R, Mousa v Secretary of State for Defence & ANR. In this case, the English legal system held up its values and commitment to even-handed hearing. The UK Court of Appeal considered the obligation of investigation under Article 2 and Article 3 of the European Convention on Human Rights. The Court aimed at looking into the allegations of mistreatment of Iraqi detainees in south-eastern Iraq during 2003-2009 by British Military, with special reference to Mousa’s case who died in the custody of the 1st Battalion of the Queen's Lancashire Regiment. The legal proceedings addressed an application to re-examine the pronouncement of the Secretary of State for Defence for not conducting a full fledge public inquiry into the allegations against the Army. The inquiry body named Iraq Historic Allegations Team (IHAT) could not be considered as sufficiently independent to conduct the investigations. In the judgement, the Court commented that “It was surprising and disappointing that remedial action has not been taken.” (Paragraph 29) The Court decided that vis-a-vis a compromised and biased investigation, the ‘wait and see’ tactic on the part of the Secretary of State was inappropriate. Under the Article 3 of European Convention of Human Rights12 (which attributes right to be free from degrading or inhuman punishment and torture), the Secretary was directed to institute an unbiased and effective investigation.13 In several other cases too, the human rights legislation framework has been very helpful in protecting the interests of the detainees. For example, in the case of R v Powell and English 14 the court expressed concern about the foreseeable risk of a detainee receiving maltreatment from the authorities. Contextually, some experts hold that the UK government has taken significant measures in protecting the prisoners’ rights. While focussing on the psychiatric aspects of the treatment of prisoners, Curtice and Sandford state, “The Human Rights Act 1998 is playing an ever-increasing role in determining the standards of treatment of those detained by the state. Article 3 of the Act – freedom from torture and inhuman and degrading treatment – is of particular importance for those detained in prisons, hospitals and other institutions.”15 Since the Human Rights Act came into effect on 2 October 2000, the Convention rights became enforceable in the UK.16 The Human Rights Act17 has been highly appreciable in solving various domestic human rights issues of the country and the controversies regarding detainees’ rights too can be addressed with the help of this legislation. The Act has elucidated many complexities that existed in UK prison laws, and factors like negligence, harsh treatment, religious discrimination, health and hygiene, provisions for amenities, fair trial, etc. have become more important and systematically addressed in the English courts.18 Yet, the human rights legislation does not provide for excessive or unreasonable protection for the detainees. It can be argued that at some instances, the court has criticised and dismissed too much sensitivity in protecting the detainees by certain human rights organisations and hence safeguarded the national interest. Via the case The Equality, Human Rights Commission v The Prime Minister, The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for the Home Department, The Secretary of State for Defence, the court dismissed the claims of risk of maltreatment calling it fanciful. With reference to this case, the claimants would be referred to as the Commission and the defendants would be referred to as the Government. In July 2010, the British Prime Minister told the Parliament that he would establish an inquiry body which would look into the allegations of improper treatment of the detainees by British intelligence personnel working with foreign security personnel in other countries in connection with the counter terrorism operations. Contextually, the HM Government published a guidance document named Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees19. Now the Commission raised question over this document and its credibility. It claimed that the document had been cleverly written so that provisions of torture and improper treatment could be accommodated in the investigation practices and guidelines thereof. The Commission argued that the guidance document posed risk of contradictory practices violating Article 3 of the European Convention of Human Rights20, Section 7 (1)(b) of the Human Rights Act21 and certain provisions of the UNCAT22 as well. In the judgement, the Judges Sir Anthony May and Mr. Justice Keith held that “The international law debate is also arid and does not need to be decided in the light of our decision that, for the purposes of the Guidance, “real risk” and “serious risk” are interchangeable. Attempting to import “real risk” by means of “acquiescence” does not help the case that “serious risk” is wrong.” (Paragraph 71) Hence, the Commission’s claim of conducting judicial review proceedings against the HM Government’s guidance document was dismissed.23 It cannot be denied outright that the English courts have historically been reform minded and modernistic. With the advent of UK judiciary in the realm of the European Convention of Human Rights24, the human rights regulations of the country have become instrumental in handling the prison affairs in a more humane way. The English courts have neither been unjust towards the detainees or excessively sensitive about their rights. English Courts have generally upheld the values of a multicultural society and the European Convention on Human Rights is being highly analysed, appreciated and implemented during the hearings. Instead of raising contradictions and creating confusions, the Convention has helped the English Courts to follow a standard model of handling human rights related issues and cases and also it has become a sort of credible resource for the domestic judicial protection mechanisms. Bibliography A Owers, ‘Opening up a closed world: A sourcebook on prison oversight: The international experience with prison oversight’ 30 PLR 1535 Convention for the Protection of Human Rights and Fundamental Freedoms, ETS Criminal Justice Act 1988 Equality Act 2006 HM Government, Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (Cabinet Office, 2010) Human Rights Act 1998 J Murdoch (2006) ‘The impact of the Council of Europe's "Torture Committee" and the evolution of standard-setting in relation to places of detention’ 11 EHRLR 158 M Curtice and J Sandford, ‘Article 3 of the Human Rights Act 1998 and the treatment of prisoners’ 16 APT 105 Ocalan v Turkey (2005) 41 EHRR 985 R v Powell and English [1999] AC 1 R, Mousa v Secretary of State for Defence & ANR [2011] EWCA Civ 1334 S Foster, ‘Prison conditions and human rights: The development of judicial protection of prisoners’ rights’ (2009) JCLI 1, 3 S Livingstone, T Owen, and A Macdonald, Prison Law, (4th edn, Oxford University Press, 2008) Sex Discrimination Act 1975 The Equality, Human Rights Commission v The Prime Minister, The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for the Home Department, The Secretary of State for Defence [2011] EWHC 2401 (Admin) United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 Table of Authorities Cases Ocalan v Turkey (2005) 41 EHRR 985……………………………………………….3 R, Mousa v Secretary of State for Defence & ANR [2011] EWCA Civ 1334………...5 R v Powell and English [1999] AC 1………………………………………………….5 The Equality, Human Rights Commission v The Prime Minister, The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for the Home Department, The Secretary of State for Defence [2011] EWHC 2401 (Admin)……...6 Other Authorities Human Rights Act 1998……………………………………………………….2, 3, 5, 7 Convention for the Protection of Human Rights and Fundamental Freedoms..2, 3, 5, 7 Equality Act 2006……………………………………………………………………..3 Criminal Justice Act 1988……………………………………………………………..3 Sex Discrimination Act 1975………………………………………………………….3 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment……………………………………………………………...7 Read More