European Convention on Human Rights - Essay Example

European Convention on Human Rights The governments of European Countries have common heritage of rule of law, freedom, ideals and political traditions. These countries have signed the resolution passed in the European Convention of Human Rights on 4.11.1950. This resolution consists of 5 sections and 66 Articles. They also signed 5 other protocols. The main objectives of the Convention are to maintain and protect the Human Rights and Fundamental Freedom, to achieve the unity between the members of the European Countries, to implement collectively the Human Rights proclaimed by General Assembly of United Nations as Universal Declaration of Human Rights on 10.12.1948. The convention enumerated the Human Rights under Section I as article 2. Right to life; Article 3 Prohibition of torture ; Prohibition of slavery and forced labor; Article 5 Right to liberty and security; Article 6 Right to a fair trial; Article 7 No punishment without law; Article 8 Right to respect for private and family life; Article 9 Freedom of thought, conscience and religion; Article 10 Freedom of expression; Article 11 Freedom of assembly and association; Article 12 Right to marry; Article 14 Prohibition of discrimination; Article 15 Derogation in time of emergency; Article 16 Restrictions on political activity of aliens; Article 17 Prohibition of abuse of rights; Article 18 Limitation on use of restrictions on rights Section III and article 19 of the convention provides for establishment European Commission of Human Rights also known as Commission and European Court of Human Rights, which are the watch dogs protecting these rights. Committee of Ministers executes orders of the court. The court not only adjudicates the issues but also renders advisory opinions. Any dispute with regard to the violation these rights are first to be dealt by the local judicial/quasi judicial agencies. After the exhausting those remedies they are referred to the Commission through Secretary-General of the Council of Europe. The commission when receives any complaint/petition investigate the matter and endeavor for amicable settlement. If the commission not able to dispose of the case it will refer to Committee of Ministers who will peruse the case and refer to the European Court of Human Rights if it is fit case to be decided by the court. The convention empowers the court to make the rules and regulations for its day-to-day functioning. The court functions as per the rules and regulation so framed. After adjudication the case will be sends to Committee of Ministers for execution of its adjudicated orders. The judgment of the court is final. The courts entertain petitions/complaints only from the commission or High Contracting Parties. The jurisdiction is extended to all cases with regard to interpretation and application of the convention, excluding the question relating to scope or contents of freedoms and rights defined in Section I. Such cases are to be referred by either the commission or High Contracting Parties, the court do not have suo moto jurisdiction. Due to subtle and creative interpretation of the European Court of Human Rights the European Convention of Human Rights is steadily evolving since its inception. And the court is continuously succeeding in preserving the value of the Convention (ECHR) as living instrument. The success of the Convention is judged on the basis of 1. Quality of judgment of the court. 2.the time taken to dispose off the cases and 3.effective execution of the judgments. Every year the number of cases are increasing at galloping rate. In spite of such increase the Court efficiently disposed off the cases at a quicker rate. Out of those judgments there are many important judgments, which brought drastic changes in the judiciary of the many European countries. The court has become a guiding light in protecting the Human Rights. The Court become instrumental in getting the law of the European countries on mainstream of the Convention law in protecting and maintaining the human rights. There are many citable judgments of the court, which are delivered with the subtle and creative interpretation of the law in protecting the Human Rights. This plat form do not allow to discuss all such judgments, simultaneously it is wise to discuss at least a few of them, which needs to be mentioned here. Article 8. Right to respect for private and family life: Article 8 provides an important Human Right of respect for his private and family life, his home and his correspondence. The article prohibits any interference from either private party or the public authority in this right. This right is provided to respect the democracy and liberty of an individual, which indirectly enables to maintain peace and public health. With regard to this right the law differs from country to country. In some countries there are sufficient laws to protect this right and are efficiently ensured to their citizens. In some countries there are not sufficient enactments to ensure this right. In such countries the justice is not available to the citizens. By providing this right in the convention, the convention is assuring this right to the citizens of all the European countries who are parties to the convention. Any individual denied of this right or whenever there is breach of this right the remedial justice is available with the Court of the European Court of Human Rights. Number of such cases has come before the court, which have been adjudicated by the court with subtle and creative interpretation. A few of such cases discussed here as an example. Marckx (13 June 1979): this is case of Belgium where the right under Article 8 and 14 are violated. The country has revised its law in accordance with the judgment of the court. This case is related to the child family relationships and the inheritance rights of the mother and child. In another case of Moustaquim whose judgment was held on 18.02.1991 decided on the private life and family life. "Connors v United Kingdom" In this case the European Court of Human Rights held that the State of United Kingdom has violated the article 8 of the convention by the act of evicting the applicant from the council-owned property. The applicant was the Gypsies. He was peacefully living in the said property along with his family for the last 15 years. While pronouncing its judgment the court observed that the state has not taken adequate safeguards, and has not applied its mind and could not show the reasonable and adequate justification to its act of interference in the Human rights provided under article 8 of the convention to the applicant. The court has also referred to case of "Price v Leeds City Council, The Times"(The times, 17 March, 2005) supporting its judgment. "Ernst and others v Belgium" this is the case where the right of the individual with regard to the privacy of life given under the article 8 is violate by the state. The state has issued an exhaustive and unreasonable search warrant. The personal properties of the applicant were seized by the authorities in a search of documents alleged to be needed under the charges of prosecution of breach of confidence. The documents and objects so seized have given no information in the investigation. The court held that the state has violated the article 8 of convention. The court has referred to "Sciacca v Italy" supporting its judgment. Fadeyeva v Russia, 9 June 2005. This is the case where right to person home life given under the article 8 is violated. The applicant was living in a house near plant of steel works, which was producing the pollution and the applicant was exposed to the pollution. The applicant is having a right to live in pollution free atmosphere. The applicant has made the request for resettlement to the pollution free area. She also requested to consider the plea on priority over the general application to save her form the pollution, which may damage the health and cause irreparable damage to the family. Where as the plea was not accepted the courts of the state have not accepted the plea and the pleas was not considered on priority. It is the responsibility of the state to protect its citizens from the pollution. When they are subjected to pollution the state should assist them in resettlement or shifting from pollution area to pollutions free area. And that too without any cost or without putting much burden on them. This is also provided under article 8 of convention. The convention provides if any such rights are broken the persons are not protected by the local courts they have remedy through the European Court of Human Rights which is specifically established to protect the Humana rights. And give necessary advise to the states in protecting these rights. Therefore the court held that the state has violated the article 8 by subjecting the applicant to the pollution. The court held that though it would be difficult for both the state and the polluting enterprises to provide a free housing to the effected individual they have failed in showing alternative arrangements. The court observed that the State had failed to strike a fair balance between applicant enjoyment of her rights and the interests of the community. While delivering the judgment "Hatton v UK" case was referred. Conviction for gross indecency involving several men in private is violation of human rights. "A.D.T. v. United Kingdom (N 35765/97)Judgment 31.7.2000 [Section III]" In this case the applicant was convicted on the charges of gross indecency involving several men in private. The applicant was brought in to the ambit of Section. 13 of the Sexual Offences Act 1956. The statute also provides an exemption clause, which says that the section will exclude sexual acts between more than two men voluntary doing in private. This clearly indicates that as long as such acts are done privately it is treated as private life and protected by article 8 of the Convention. The police agency has conducted search and confiscated the videos and Photographs of their homo sexual activities carried on in his house privately. The European court of human rights observed that though the applicant knows that he is doing an indecent act and such an act is against law and he would be subjected to the punishment. Still the court also observed that there is not proof that such an act prohibited by law would be exposed to the public either intentionally or inadvertently. The court also observed that since the act was between more than two men that too it was done in the house of the applicant secretly without giving any scope for the exposure to the public. There is no evident that it would effect the public life. I was purely a private act and it would effect the applicant and his associates but non-else. The other men involved were consented for the act without any coercion a or without any undue influence. Therefore the act of the applicant is though gross indecent but it was purely private. Therefore the interference of the State in his private life is nothing but violation of article 8 of European convention of human rights. Expulsion pending proceedings relating to access to child is violation of human rights. "CILIZ v. Netherlands (N 29192/95) Judgment 11.7.2000 [Section I]" This is an important case on family life guaranteed under article 8 of the convention. In this the applicant, who belongs to Turnky. He had come to Netherlands and married to a lady of Netherlands. By virtue of his marriage with the lady of Netherlands got conditional resident permit, which mentioned that he would retain his permit as long as he maintains the marriage and cohabitation. The couple blessed with a child. After the birth of the child they got separated. The state has terminated his permit according the condition precedent to the grant of permit. He got the a temporary permit for working. Since he was not working and depending up on the unemployment benefit. The state has terminate his temporary permit and expelled him from the State. He has pleaded for the retention of his permit to live in Netherlands, which was rejected all levels of the judiciary of the state. He also submitted his plea to the childcare and protection authorities to permit him to meet the child. This plea was refused at trial court. He appealed to the appellate court. When the appeal was pending before the appellate court he was expelled from the State. The trial went ex-parte. He made his re-entry to the Netherlands and submitted an application for making arrangements to access his child. The issues before the court were that whether the act of the state expelling from the state when the an application to access his child is pending is proper or it is violation of article 8. whether the applicant really has right to access to the child after the separation or not. Whether the legal separation seize the bond or relation of father child. The court held that separation or divorce will not terminate the relationship of family life between the parents and the children. And the divorce or separation will not lead to the child ceasing to live with either of the parents. Hence the applicant can't not be denied of his access to the child. The second is that the action of the sate with regard to the expulsion of the applicant when application of access to the child is pending is treated as the interference of the State in the family life, which is the violation of article 8 of the convention. "Murphy v Ireland" This is the case where the article 10 of the European convention on human rights giving the right of 'freedom of expression' was challenged. In this case the applicant wanted to broadcast a video connected with the historical facts about Christ and evidence of resurrection. The British broadcasting authority has not allowed the applicant to broad caste the video. Religious advertisements and documents are barred by the local law therefore the applicant was not allowed to broadcast. The applicant filed a case in the state courts asking to direct the Broadcast authority to broad caste the video. Since the local laws do not permit such advertisement the courts of original jurisdiction have refused his plea. The appellate courts have also confirmed the stand of the trial court. Aggrieved by the judgment of the trial court and the appellate court the applicant filed an application with the European court of Human rights. Alleging that the his right to freedom of speech guaranteed by under article 10 of the European convention on human rights is violated by the state. The court held that there is no violation of the article. The state has acted according to the law of the land, which is reasonable and justified. The court felt that broad caste of religious video is a sensitive issue and effecting the sentiments of other religion. The interference of the state is justified. And held there is no violation f the article. Conviction for making separatist propaganda: violation. "SENER v. Turkey (N 26680/95) Judgment 18.7.2000 [Section III]" In this case the State of Turkey has violated the article 10 of the convention by convicting an editor cum owner of a weekly magazine. The applicant was the editor and owner of a weekly magazine. He has published an article on the problems of the Kurdish with an object to suggest a permanent solution to their problems. It was an intellectual analysis to put an end to the armed conflict. The state has seized the edition as per the direction of the State Security court. The court was found that the article was nothing but an separatist propaganda and it is against the security of the state. State Security Court, which included the military judge, has convicted the applicant on the charge that she has committed an offence of dissemination of separatist propaganda. The court observed that the article gives the reference of "Kurdistan" and genocide had exists. The court has imposed a punishment of 6 months imprisonment and a fine of 50 million Turkish liras and also ordered for confiscation of the edition. The applicant has appealed to the appellate court. The appellate court has rejected his appeal. Mean while there was an amendment to the law in the state. The court has re-examined the case due to the amendment of the law. The court applied the amended law and imposed the same punishment. This time the court of appeal has i.e. the court of cassation has quashed the judgment of the trial court. The appellate court observed that the trial court has erred by not commuting the prison sentence to a fine. The State security court has differed the final sentence. In 1995 the applicant was again subjected to conviction with suspension of sentence. The issue before the European court of human rights is that whether the applicant has really committed an offence as alleged. Does the article contain any matter dangerous to the safety and security of the state. Whether the state has committed any violation the human rights ensured by the convention. The court observed that the object of the State in convicting the applicant is a genuine and warranted in the interest of the state and to safeguard the security of the state. But the court also observed that the article does not contain any material that is dangerous to the safety of the sate. It observed that the article was an intellectual analysis of the problems of "Kurdistan" the object of the applicant author was in search of a permanent solution to the armed conflict. There is no proof to show intention or objective of the article is contrary to the contest. The court held that when there is no threat or danger to the security of state as alleged by the state the interference of the state in to the right to expression without a valid reason will attract violation of article 10 of the convention. Therefore it held that Conviction for making separatist propaganda is violation of article 8 of the convention. "Ernst and others v Belgium" "(Judgment 15 July 2003)" this is case where the European Court of Human Rights has held that the state of Belgium has violated both article 8 and 10 of the convention. In this case the television company, radio and newspaper and journalists were subjected to the interference of the state in their right to private life under article 8 and right to expression under article 10 of the convention. The Serious Crime Squad carried out searches in the premises of these applicants in connection with the prosecution of the members of the legal services for alleged leakage of highly sensitive criminal cases. The state contended that their search was legitimate and lawful. The court held that the object of the searches was legitimate and lawful the court found that the state could not prove that the offence involved does not warrant such degree of an interference. The court held that the interference of the state was not proportion to the degree of the offence alleged to have been committed by the applicant. The court has also held that the reasonable opportunity was given to the applicant to know why the interference of the state was warranted. There the court held that the state action is violation of not only article 10 but also violated article 8 of the convention. The European court of Human rights has pronounced innumerable judgments on the issued connected with all most all the article of the convention the article selected are a few among the important judgments. The court is a vital instrument in protecting human rights of the European nations. It stood as a guiding agency to all the states in Europe. It is continuously protecting the citizens of all these nations who are becoming the victims of the action and inaction of their state due to either insufficient laws or no laws or misinterpretation of laws resulting in violation of these human rights provided by the European Convention of Human Rights. When we critically analyze and observe the above judgments and other judgments it is evident that the European court of Human rights preserved the values of the ECHR as a living instrument by its subtle and creative interpretation. Bibliography http://www.legal500.com/devs/uk/cs/archive.htm European Court of Human Rights - Wikipedia, the free encyclopedia www.hri.org/docs/ECHR50.html www.booksites.net/download/foster/student_files/0582438330_update_sep05.doc www.echr.coe.int/Eng/InformationNotes/INFONOTENo20.htm Read More