Human Right Law and Strasbourg Court - Essay Example

?Human Right Law work (Final Year LLB Law) Table of Contents Introduction 3 Discussion 4 Living Instrument 4 Past Decisions of Strasbourg Court- Limits 5 The Case of Tyrer v. the United Kingdom 6 The Case of Airey v Ireland 7 The Case of Hatton and others v United Kingdom 8 Conclusion 9 References 10 Introduction European Convention on Human Rights (ECHR) is widely known as the convention that deals with the protection of the human rights and is often regarded as a ‘living instrument’. The principles of ECHR functions under the authority of the member states of the Council of Europe and are practiced through a supra-national court establishment as European Court of Human Rights (or Strasbourg Court)1. It will be vital to mention that the Strasbourg Court is not bound to follow each and every framed rule of the convention; rather, its principles are at times found to act as a ‘living instrument’, which considers the present conditions in applying the legal procedure. It is in this context that the concept of ‘living instrument’ is often challenged by critics under the scepticism that considering present conditions may be contradictory and evidently different from the set guidelines and regimes followed by state courts; thus raising perplexities and conflicts amid the beneficiaries and the law enforcers. Emphasising this scepticism concerning the effectiveness of the living instrument, Brenda Hale (Baroness Hale of Richmond), stated in her lecture on “Common law and Convention law: the limits to interpretation” that the living instrument incorporated by the court of Strasbourg should have certain limits and it should not be unstoppable such as the beanstalk grown from “magic beans”2. Contextually, the primary intention of the essay will be to evaluate the past decisions of cases laid by the Strasbourg Court and critically assess the limits stated by Lady Hale in the context. The essay will also evaluate the chances or the probability of introducing any limits in the use of the living instrument in the Strasbourg Court. Discussion Living Instrument The ‘living instrument doctrine’ is often regarded as one of the founding principles of the Strasbourg case-law. Based on this principle, the conflicts registered in the ECHR are interpreted in the light of present day condition. In general terms, the aspect of a living instrument can be explained as an approach of the ECHR to consider the present day conditions while making a decision rather than what the drafters thought way back in the conventional era. This idea of the court is often regarded as “dynamic or evaluative”, which is however criticised as directly contradictory to the concept of ‘originalism’3. It will be crucial to mention that since the convention is considered and practiced as a living instrument, it is bound to consider only the present day conditions in order to ensure the practicality and effectiveness of the ECHR4. This particular notion adopted by ECHR, as a living instrument, can be comprehensively understood with reference to the cases of Mata Estevez v Spain (2001) and Schalk and Kopf v Austria (2010). For example, in the case of Mata Estevez v Spain (2001), the Strasbourg Court disapproved that the relationship between same-sex couples falls within the principles of Article 8 (“Right to respect for private and family life”) of ECHR and thus cannot be considered to be under the family scope to be entitled for the related human rights. However, in the case of Schalk and Kopf v Austria (2010), the court approved the relationship of same sex couples to be applicable under the principle of Article 8 of ECHR. In this case, the court considered the present day condition where same sex couples are treated and accepted with utmost respect in the society5. Strictly following the principle of ‘living instrument’ can give rise to various drawbacks in the law enforcement procedure, which has become the base of continuing debate on the effectiveness of the ECHR. Amongst the prime is the drawback of conflicts between the decisions made in the state courts and the Strasbourg Court. It was as per this understanding that Baroness Hale argued in favour of certain limitations to be imposed upon the doctrine of living statement used by the ECHR. In lieu, Baroness Hale argues “At a time when many are worried about how far the ECHR may develop beyond the original expectations of its framers, it seems reasonable to ask whether there are any natural limits to its growth and what those might be.”6 As per her statement, the ‘living instrument doctrine’ is bound to get influenced by the ‘commonly accepted standards’ stated in the penal policy of the Council of Europe, irrespective of what the situation demands. Accordingly, she believes that there should be certain limits imposed on the use of ‘living instrument doctrine’ in the ECHR, with regard to enhance the growth prospect of the same7. Notably, the same has been argued by other experts from the field, including Lord Judge8 and Sir John Laws9. Past Decisions of Strasbourg Court- Limits The notion of ‘living instruments’ has three crucial features that should be contemplated with regard to obtain a comprehensive understanding for the same. Firstly, as per the concept of ‘living instruments’, the court will need to consider the present day standards and form a conceptual frame for understanding the convention to apply human rights legislations. It will be crucial to mention that the implementation of living instrument rarely inquire about what the drafters of the convention actually intended to be protected by the regime. Secondly, in the process of implementing the concept of ‘living instrument’, the present day situations or standards that the courts consider should be shared or should be applied in common, amid the contracting states. The third feature of implementing the ‘living instrument’ is that the ECHR must be restrained from assigning any importance on what the respondent state considers acceptable about the standards of the ‘living instruments’10. Apparently, these features can be argued to act in contradiction with the state court ruling concerning human rights conventions and thus, polarise the functions of the state legislation and the supra-national court functions of ECHR, if no limits are imposed on its decision-making. In the following discussion, few of the past cases decided in the ECHR have been studied with the intention to identify the limits imposed (if any) and those which are required to be imposed on the functioning of the ECHR as a ‘living instrument’. The Case of Tyrer v. the United Kingdom There were several cases illustrating the concept of ‘living instrument’ in the Strasbourg Court. One of such cases is the litigation of the Tyrer v. the United Kingdom, which was decided by the ECHR in 1978. In this case, Mr. Tyrer who was 15 years of age was ‘birched’ by a policeman in private, which caused him physical injury. Studying the situational context, the court affirmed that the approach of the law enforcers was inhuman and thus, violated Article 3 of the ECHR. Observably, the court legislation was then noted to consider ‘bare skin birching’ of the convict as approved by law in ‘Isle of Man’ (i.e. the crime scene). However, contradicting this regime, when the case was registered, this kind of practice of corporal punishment was completely abolished in other parts of the UK. The attorney general of the ‘Isle of Man’ argues that the aspect of corporal punishment is one of the parts of investigative functions conducted by the UK police in the crime scene and cannot be considered a humiliating approach. However, the court rejected to consider the viewpoint of the attorney and stated that corporal punishment cannot be considered as a non-humiliating approach and it certainly violates Article 3 (Prohibition of "inhuman or degrading treatment or punishment") of the ECHR11. As apparent, the court entered its decision entirely on the basis of the present day situation. The decision of the court is deemed to be quite firm and have little influence from any other human rights regime, apart from the present day situation relevant to the aspect of corporal punishment all over the UK. Hence, going by the firmness of the decision of the court, it can be affirmed that there was no limits practiced in implementing the convention of ECHR as a living instrument. The Case of Airey v Ireland Another landmark case of Airey v Ireland was registered in the ECHR in 1979. In this particular case, Mrs. Airey (the plaintiff) desired separated separation from her husband, while the regime of divorce was completely abolished and considered illegal in the Irish law. The Irish court, as per the Strasbourg Court, also failed to deliver Mrs. Airey with adequate help in accessing the court because of her poor financial condition, which did not allow her to get a lawyer to have acted on her behalf. The European Court of Human Rights depicted this aspect as the violation of her right as per Article 6, which focuses on the “right to access the court” held by the common people. As an eventual result, Mrs. Airey was awarded with legal separation from her husband as per living instrument incorporated by the Strasbourg Court in-spite of the fact that it was not accepted as per the Irish law12. In this particular case, the court used the convention as a living instrument to assure that Mrs. Airey was awarded a legal separation from her husband despite of the aspect that Irish regulation does not entertain this sort of demand of a person. It is apparent that the approach of the Strasbourg Court in this particular case abided no limits, as their decision overdo the decision of the Irish Court. In other words, the court provided negligible significance to the regulatory norms of the Irish law regarding legal separation of couples in the place. Hence, it is apparent that certain limits should be there in the operations or the conduct of the Strasbourg Court so that parity can be maintained between the legal procedures followed in state courts and the supra-national court of ECHR. The Case of Hatton and others v United Kingdom In the case of Hatton and others v United Kingdom, the plaintiffs alleged that the policy of the government to operate night flights in the Heathrow Airport violates the rights of the people residing in the neighbourhood under Article 8 (“Right to respect for private and family life”) of the convention. The rule delivered by the state court thus inferred that the allegations made were justified and required remedial approaches to be taken by the UK government. However, the Strasbourg Court denied a proportionate and desired remedy for the same to the plaintiff, following the review request by the UK government. Notably, the Strasbourg Court was of the view that the functions of the airport do not violate the human rights provision following the 1993 scheme where a noise limit quota was imposed on the operations of the aircrafts in the Heathrow airport at night13. In this particular case, the decision of the Strasbourg court was against the plaintiffs who were dealing with noise problems and reverse to the state court decision, owing to the late night flight operations in the Heathrow airport, without applying the principle of ‘living instrument’. Arguably, if the present day context would have been taken into account with the application of the ‘living instrument’, the people living near the Heathrow airport could be identified as facing problems in their private and family life, which was straightway violating the Article 8 of the ECHR. Hence, the decision as per the living instrument concept of the European court of human rights in Strasbourg should have been in favour of the plaintiff. From a critical understanding, it can thus be argued that because no limits have been levied on the functioning of the Strasbourg Court, perplexities and lack of adequate transparency can be observed in its decision making procedure. Conclusion It is apparent from the overall discussion that there are times when the European Court of Human Rights goes beyond its legitimate powers and often in reverse to the decision making procedure followed by the state court. Undoubtedly, such limitless power of applying the convention can raise conflicts between the roles played by the state courts and the Strasbourg Court. To be noted in this regard, the court, in its decision making process with the application of the ‘living instrument’, only takes into consideration the contemporary situation relevant to the case, which may also be otherwise at certain instances, as in the case of Hatton and others v United Kingdom. Observably, the decision of the court, which is entered on the basis of living instrument, is further considered as irreversible by any other legislation. This further states the level of the importance of decision of the court, which have been criticised as overpowering the significance of state courts in Human Rights legislative actions14. For instance, the decision of the Strasbourg Court using the living instrument to provide voting rights to the prisoners in the UK raised significant controversies regarding the role and the legitimate power held by the ECHR, over the state courts15. It is in this regard that the functioning of the Strasbourg Court has no limit imposed on its application of ‘living instrument’ that over and over again have been observed to contravene and reverse the ruling of state courts. From a critical point of view further, it can be argued that non-existence of a limited and defined legal procedure of decision making inhibits transparency in the functioning of Strasbourg Court. Thus, keeping in mind the sovereignty interests of the member states and also the need for accountability as well as transparency in the decision making process, it can be argued that imposition of limits is necessary on the European Court of Human Rights. References Airport Noise Law, ‘Case of Hatton and Others V. The United Kingdom’ [2003]. (Home) (accessed 18 December 2013). Baroness Hale, ‘Common Law and Convention Law The Limits To Interpretation’ [2011]. (Clifford Chance) (accessed 18 December 2013). Council of Europe, ‘Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14’ [2010]. (Home) (accessed 18 December 2013). Dia Anagnostou and Evangelia Psychogiopoulou. The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context. (BRILL, 2010). David Barrett, ‘Strasbourg Not Superior To British Courts' Says Former Senior Judge’ [2013]. (The Telegraph) (accessed 18 December 2013). ESCR, ‘Airey v Ireland 32 Eur Ct HR Ser A (1979): [1979] 2 E.H.R.R. 305’ [No Date]. (Home) (accessed 18 December 2013). ECHR, ‘The European Convention on Human Rights (ECHR) – Introduction’ [2013]. (Home) (accessed 18 December 2013). George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and its Legitimacy’ [2012]. (University College London - Faculty of Laws) (accessed 18 December 2013). Joshua Rozenberg, ‘Laying down the Laws: human rights court shouldn't have last word’ [2013]. (The Guardian) (accessed 18 December 2013). Owen Bowcott, ‘Senior judge: European Court Of Human Rights Undermining Democratic Process’ [2013]. (The Guardian) (accessed 18 December 2013). Paul Johnson, Homosexuality and the European Court of Human Rights. (Routledge, 2013). Read More

 

Read More