Human Rights and Fundamental Freedoms: Article 3 of the ECHR - Essay Example

? Human Rights and Fundamental Freedoms: Article 3 of the ECHR. Introduction: Human rights can be broadly defined as those rights that are inherent to all human beings irrespective of their nationality, sex, origin, religion, place of residence et al.1 Everyone in the world is entitled to their human rights without any form of discrimination, unless the rights they accrue have been limited for some special circumstance. Human rights are unique in the sense that they are universal and apply to all, they are also interrelated and indivisible and affecting one bears a burden on the others. They are guaranteed by law and occur in the form of treaties, customary international law, general principles and other sources of law including national constitutions. The international human rights law is unique in the sense that it lays down obligations for governments to act or refrain from acts that will deny their citizens' fundamental rights. The World Conference in Vienna held in 1993, resolved that states have a duty to promote and protect all human rights and fundamental freedoms, this should be done regardless of the citizens political, economic and cultural systems.2 This in effect places a legal obligation on states to secure the rights of their citizens and do everything possible to protect and promote peace within their territories. European Convention on Human Rights: The European Convention on Human Rights3 was adopted in 1950 and came into force in 1953, and is an international treaty that creates an obligation on all signatory states. The United Kingdom was one of the founding members of the convention and is also a signatory. The treaty reflects the values of civilization and democracy and was formerly known as the Convention for The Protection of Human Rights and Fundamental Freedoms. The Universal Declaration on Human Rights4, drafted after the atrocities of the Second World War is a source of influence to the working of the ECHR. In essence the ECHR gives practical formality to certain rights and freedoms set forth by the UDHR and at the same time also gives a list of guaranteed rights that are non derogable. Non derogable rights are those that cannot be limited or taken away and include the right to life, prohibition from torture, slavery and forced labour, right to liberty and security, right to a fair trial, respect for private and family life among others.5 Following the end of the Second World War, there was a need to create a wider response in the world in terms of securing the rights of individuals. There was an increased threat in Europe due to the increased growth of communism and the solution at the time was to enforce the convention to protect Europe from communist subversion. There was therefore a need to promote and preserve the democratic regimes in the region and to secure the rights and interests of the people. The convention established the European Court of Human Rights6 where citizens of member countries would take their grievances on violations of their rights by their states. The judgements of the court are binding on all parties that are signatories to the convention and there is an implied obligation to comply and implement them fully. The ECTHR has had a hand in developing human rights through its interpretation of the various provisions contained in the statute. It has also been able to establish various protocols establishing new rights that were not anticipated at the time when the ECHR and UDHR were drafted.7 Supervisory duties of the court judgements fall under the Committee of Ministers established under Article 54 of the ECHR. In addition to this, the Secretary General has a supervisory mandate on all member states to ensure that they comply with the provisions of human rights law and most importantly apply the Convention effectively within their territories under Article 52. United Kingdom Legislation: Since the terrorist acts that affected America and the United Kingdom with the bombing of the Twin Towers and the subsequent bombing of the London Metro, the crime of terrorism has really grown. In the past, most extremist activities were carried out on a small scale and they involved angry rebel groups like the IRA who constantly bombed the United Kingdom. The constitution of the United Kingdom is unwritten and this is a positive aspect because it is flexible. It has undergone many changes leading to the devolution of the legislature and administrative power and the reform of the judicial and other institutions.8 The ECHR is given effect in the United Kingdom by the Human Rights Act9. Dicey a Victorian jurist is credited with propagating the principle of parliamentary sovereignty. In this he claimed that parliament possesses, “the right to make or unmake any law whatever” so that, “no person or body is recognized by the law of England as having a right to override or set aside the legislation of parliament”.10 This means that parliament is essentially limited in capacity to enact law on a political basis and not on a legal one because one cannot claim judicial review of legislation enacted. Because parliament is the supreme law making body, then there is no norm that exists that is legally immune from parliamentary interference and displacement. Although fundamental freedoms and rights exists in the United Kingdom through enforcement of the HRA there are some limitations to some of them. Freedom of speech, freedom of association, religion, and assembly are almost non-existent in the country. Not because the United Kingdom is not a defender of human rights, far from this but because practical politics and legislative influences have chosen to limit these rights in accordance to the laws of national security. The HRA in its provision points out clearly that human rights protection must be reconciled with the sovereignty principle. This was laid down on the basis of a Government White Paper on human rights where is was stated that, “the courts should not have the power to set aside primary legislation, on the ground of incompatibility with the convention”.11 Section 3 (1) HRA, provides that, “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the conventions rights”. The courts therefore have a mandate to apply the law to the facts of the case irrespective of whether that law is not compatible with the provisions of the ECHR. In addition, parliament has a legal capacity to amend provisions of the HRA that are incompatible since it is not entrenched in law. This creates a problem for the judges who have to continually avoid applying acts of parliament that are not reconcilable with the ECHR.12 Counterterrorism in the 9/11 Period: After the terrorist attack in the United States, September 11, 2011 the United Kingdom was quick to respond as a countermeasure in the event that the same thing happened here. This led to the creation of the Anti-terrorism, Crime and Security Act 2001.13 This piece of legislation was meant to cover a wide range of issues including terrorist property, nuclear and aviation security and police powers in the event of an attack. It also in Part 4 of the act, creates a provision for indefinite detention of persons identified as terrorism suspects without charge or trial. The act also gave powers for the Home Secretary or someone else empowered with similar powers to issue a certificate to persons who are believed to be a risk to national security and who are suspected of being terrorists. Issuing the certificate was a clear indication that the person would be deported to their home country. However, provisions in sections 22 and 23 of the ACSA, provided that there would be exceptions to deportation in the event that the person accused came from a state where there was a risk of torture should they be deported. This meant that deportation to risky states was then deemed contrary to Article 3 of the ECHR.14 The accused person would therefore have the option of being detained under special immigration powers where they were foreigners. Article 3 of the ECHR provides that, “no one shall be subjected to torture or to inhuman or degrading treatment or degrading treatment or punishment”. This does not essentially all degrading treatment but only that which reaches an intense level of severity that it meets the threshold for a challenge. In the Greek Case, the authorities in Strasbourg set a high threshold for any treatment that fell within the provisions of Article 3. In their ruling they held that, it must exceed, “a certain roughness of treatment”.15 Because of this provision, suspects were allowed to leave the United Kingdom voluntarily in effect to rid the state of the burden of having to detain them. Although detention is done on the grounds of national security, Article 3 comes in to ensure that the human rights of detainees are not violated. Article 5 of the ECHR has a provision that, “everyone has the right to liberty and security of person” and that “no one shall be deprived of his liberty” except in certain defined circumstances. Article 3 and 5 read together inadvertently create a legal obligation of the holding state to observe the rights of the detainee in accordance with the provisions of the ECHR. Detention without trial has been a controversial issue in the United Kingdom, on the one hand because it denies fundamental human rights and on the other because it touches on matters of national security. There is need to create a balance between enforcement of civil liberties and the legal aspirations of the legislature. Article 3 of the ECHR is non-derogable16 and cannot be taken away or limited in any way, this means that although there is a provision to protect national security in the UK, the rights of the detainee are also paramount in consideration. It is therefore clear that the ACSA was enacted to protect accused person from being subjected to torture and any inhuman or degrading treatment in accordance with Article 3. What is important now is establishing what is classified as torture and what inhumane and degrading treatment is. The Court in Strasbourg has made many inroads in the bid to interpret the provisions in Article 3 especially in trying to distinguish the difference in meaning between ‘torture’ and ‘inhuman and degrading treatment’. The court held that these are two independent concepts although they lead up to the same result when taken in context. In the Gafgen case,17 it was held that police threatening an accused person with pain in the act of extracting information amounted to inhuman treatment within the scope of Article 3. They also added that, although this method of extracting information fell under inhuman treatment, it was not at a level where it could be classified as torture under Article 3. This means that the higher and more serious aspect of the right infringed upon under the article is that of torture at its apex. This now brings the aspect that states are therefore under an obligation not to deport people to countries where they will be exposed to torture or inhuman treatment either at the hands of the state or by private individuals like rebel groups or being caught up in civil war.18 Therefore Article 3 in essence was meant to address the issue of breaching the fundamental rights of individuals through deportation and at the same time find lawful means of prosecuting suspected terrorists. This is especially important where there is a possibility that the evidence brought against them in a court of law may be inadmissible in any criminal proceedings.19 This countermeasure has however received much criticism on the basis of national security. 20 In the event that such information considered inadmissible is disclosed, it creates prejudice on the intelligence gathering mechanisms of the state. To avoid having a situation where detention without trial would not be inconsistent with Article 3, parliament invoked Article 15 of the HRA, which provides that, “ in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this convention to the extent strictly required by the exigencies of the situation, provided such measures are not inconsistent with its other obligations under international law”. There was therefore a possibility to derogate from the obligations of Article 3, from the provisions of Article 5 because it could be classified as necessary under Article 15 in terms of national security. This in essence meant that although during the time of 9/11 UK had not faced terrorist attack, they were however predicting the possibility and creating necessary safeguards in the law so as to create a legal mechanism that would deal with the perpetrators effectively while at the same time checking to enforce the provisions of the ECHR. The parliament of the United Kingdom has powers that enact and limit the effects of any statute to the best interests of its people. Effects of the Belmarsh Case: There now were defined legal structures put in force that could deal with terrorist suspects and also handle detentions that were justified under Article 15. This did not stop the suspects in detention from trying to challenge this new law on the grounds of violation of their fundamental rights and freedoms. It is important to note that there was a successful challenge made against a certificate of deportation at the Special Immigration Appeals Commission21, in the UK.22 The accused persons involved in the Belmarsh Case, 23 the accused persons claimed that the conditions laid down in Article 15 for derogation from Article 3 were not satisfactory and for that reason the court should rely on Article 5 for their case, which found detention as being incompatible. The accused persons were successful and Article 15 was found not to be compatible hence it was ruled that detention without trial was incompatible. The courts in making this decision moved away from the provisions of the law enacted by Parliament and chose to rely on the provisions of the ECHR. The courts made their conclusions by ensuring that all the facts of the case were considered on a step by step basis. First they needed to establish that there was war or other public emergency that was threatening national security. SIAC had earlier established that this state of emergency existed and the courts did not overrule this. They however drew their attention to the faulty intelligence that was relied upon before the United Kingdom took part in the war in Iraq and held this as a basis for contention and further consideration.24 The judges also wanted to ascertain whether the threat of terrorism on the country would be considered to be a threat on the life of the nation. Lord Hoffmann in this case clearly stated that, “terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community”.25 The reason the Lordships were having problems with the law derogating from Article 3 was because it specifically applied to foreign nationals and not people who were considered to be British citizens. It was therefore considered to be somewhat discriminatory seeing that there were conclusions that it was not necessary to lock up nationals found guilty of the same offence. From the dissenting opinions of the court on the law created by parliament it is clear to see that they have a willingness to scrutinize law and ensure that it is compatible with the law. The courts using the HRA are given working room to use the proportionality test when deferring with the decisions of the executive and the legislature on laws that breach the provisions of the ECHR.26 Conclusion: Terrorism is a grievous crime and the war on crime is a great mechanism testing whether or not the provisions of human rights are enforced effectively in the United Kingdom. The rights derived from the ECHR are enshrined in the law and are very difficult to derogate seeing that Article 3 is a non-derogable clause in the ECHR. The HRA has brought in necessary changes that allow the courts to defer from laws deemed contrary to human rights created under political machination an influence. It is therefore important for the judiciary to continually condemn laws created that infringe on human rights in the hope that this will create pressure on the judiciary to amend or even repeal laws that are not compatible with Article 3. This view would however not apply in the event that the country was facing a real threat to national security through terrorism where the provision for detention without trial would apply for purposes of national security. Bibliography: Primary Sources Cases: A v Secretary of State for the Home Department, 16 December, 2004, UKHL 56. Ahmed v Austria, (1997), 24 EHRR, 611. Chahal v. UK, 15 Nov, 1996, 23 EHRR 413. Gafgen v Germany, 1 June 2010. Greek Case, (1969), Application No. 00003321-3/67, 11 YbK of the ECHR 501. Regina v Secretary of State for Transport, ex parte Factortame Ltd (No.2), [1991], 1 AC 603. X v Secretary of State for the Home Department, [2005], 2 AC 68. Statutes and Statutory Instruments: Constitutional Reform Act 2005. Human Rights Act 1998. Regulation of Investigatory Powers Act, 2000. EU Legislation: European Convention on Human Rights, art 2, 3 and 5 and 15. Universal Declaration on Human Rights. Secondary Sources: Books: Carroll, A, Constitutional and Administrative Law, (7th edn, Pearson Longman, 2013). Dicey, A.V, An Introduction to the Study of the Law of the Constitution, (10th ed, London, Macmillan, 1959, p.10). Read More