Relationship Between Domestic Law and the European Convention - Essay Example

Relationship between Domestic Law and the European Convention Introduction This paper aims at analyzing the relationship between domestic law and the European convention on human rights 1950. It explains these laws in details together with the articles of the two laws and how they relate with each other. It also explains their relationship in connection to the safeguard of individual rights in Europe (Aria-Takahashi 240). There are effects of these laws on the parliamentary sovereignty which are explained in this paper. The researcher also looks at which body is superior to other when it comes to human rights and implementation of these laws. The European Convention of human rights is a body in Europe that has the responsibility of ensuring the defence of individual privileges, the same responsibility exercised by the domestic law. The Convention is an international body that looks at the rights and freedoms of citizens in Europe. Its formation was aimed at ensuring that violation of human rights was a punishable offense, this is evident in the domestic law meaning that the two set of laws perform the same function. It aims at ensuring that there is no violation of human rights by the states or any other party (Barnett 50). The court handles such cases with guidance from articles under the convention for human rights in Europe. It ensures that people or states can take cases to courts regarding violation of human rights against another state. This makes the body an international body that protects individuals with a high degree.12 The European convention of human rights is a law making body that seeks to certify that individual constitutional rights are not dishonoured by any person or body regardless of their position in the society. It ensures that courts handle cases regarding human rights properly without being bias. The domestic law relates closely with the European convention for human rights because the two aim at ensuring adherence to laws regarding human rights (Bates 477). The domestic law regards all laws regarding human rights that a state or non-governmental organization may violate and how such cases should be handled in the court. There is a notable relationship between domestic law and the European convention of human rights. This is because the European convention aims at protection laws including the domestic law. This is evident by some of the articles in the convention and sections of the human rights. Some of the articles that relate with the domestic law include article 1, 13, 34 and 35. This paper also analyzes the relation using some section of the human rights like section 2, 3, 4, 6 and 8. In the case of Keenan v United Kingdom, the applicant was complaining about his son’s sentence. In this case, the applicant used article 2 and 3 as the basis of the case. The court only found out that article 3 was breached and not article 2 of the convention. Article 1 of the European convention regards respecting rights in regards to all the other articles. It works within its jurisdiction unless under certain situations where it does not confine itself to the jurisdiction. In the case of Loizidou v Turkey, the court made a ruling that its jurisdiction extends to foreign states with similar control. This was made possible by military action in the state (Aria-Takahashi 240). Article 13 of the convention involves effective remedy. The convention applies the article before any national authority that violates human rights that it protects. It is a free infringement under the convention to get a remedy in case of violation of a human right. Obtaining such a remedy involving human rights can only be through the court. The case of Pretty v United Kingdom is another example of a case that an applicant basis on article 2 and 3. However, the court ruled that nobody has the right under articles of the convention to take his life or another person’s life. Article 34 regards individual applications which state that no high party has the ability to prevent the court from exercising the law. For instance, in the case of Selmouni v France, there was a breach of an article 3 in the convention. The case involves a bad treatment of the accuser during a police custody which is against human rights. That means that a person or a non-governmental organization is eligible to be taken to courts in case they violate human rights. It does not favouring any high party that violates human rights on the basis of its position. Article 35 concerns admissibility criteria regarding the criteria that courts should use when handling human rights cases. Another case that explains a breach of the human rights under the convention is the case of Einhorn v France. In this case, the applicant was tried in absentia while he was in USA where he was given a life imprisonment. It explains that the courts ought to deal with such matters after exhausting domestic remedies (Roca and Santolaya 36). It also explains that rulings take place within six months from the decision making date. This article also gives rules and guidelines regarding cases submitted under article 34. It gives rules regarding admission of cases and how the court should handle such cases. This article refers so much to article 34 on the admission of cases and individual applications. There are notable sections under the human rights that also show its relationship with the convention. Establishment of the human right Act was aimed at giving further effect to laws of the convention. They include section 2, 3, 4, 6 and 8. Section 3 provides that courts carry out primary and subordinate legislation to ensure compatibility with all the articles. Section 4 allows for issue of a declaration of incompatibility. This happens in cases where section 3 proves impossible to apply (Greer 52). This section makes it possible for compatibility to exist between the articles and sections. Section 6 explains that courts and tribunals are public bodies. This means that their judgments should comply with obligations under the human rights unless in cases of incompatibility. This gives judges the duty of complying with the convention for human rights3. The sections and acts, therefore, explain the relationship existing between the human rights and the convention because the two work together and have to comply with each other. 4This relation affects the parliamentary sovereignty in that it is not considered superior to the convention. In conclusion, convention is superior to domestic laws because it is under the law making body regarding human rights internationally. This is because the convention does not allow any high body to be above the law. Therefore, its sovereignty does not matter when it comes to convention articles and cases regarding human rights (Foster 236). There is an association between margin of appreciation and the judicial restraint. The principle of proportionality restrains state authorities with the aim of providing protection for individuals. It ensures that there is proportionality between such authorities and individuals under the convention, so that none of the two is superior to the other. There are factors affecting the scope of margin of appreciation which are balanced under the articles in the convention. Works Cited Aria-Takahashi, Y, The margin of appreciation doctrine and the principle of proportionality in the jurisprudence of the Echr, Intersentia nv, 2002, pg. 234-278 Barnett, H, constitutional and administrative law, Taylor & Francis, 2012, pg. 23-67 Bates, E, The evolution of the European convention on human rights: from its inception to the creation of a permanent court of human rights, Oxford University Press, 2010, pg. 456-678 Foster, S, Q & A Revision guide: human rights and civil liberties 2012 and 2013, Oxford University Press, 2012, pg. 234-237 Greer, S. C, The margin of appreciation: interpretation and discretion under the European convention on human rights: Council of Europe, 2000, pg. 45-56 Nollkaemper, A, National courts and the international rule of law, Oxford University Press, 2011, pg. 123-134 Roca, G, J & Santolaya, P, Europe of rights: a compendium on the European convention of human rights, Martinus nijhoff Publishers, 2012, pg. 34-39. Read More