ECHR 1950&UK Human Rights Act 1998: Protection of Freedom of Expression and Prohibition on Torture - Coursework Example

ECHR 1950 & UK Human Rights Act 1998- Protection of Freedom of Expression and Prohibition on Torture – An Analysis Table of Cases Ahmed v Austria (1997) 24 EHRR 278 Allan v UK ECHR, 5 November 2002 Cream Holdings Ltd v. Banerjee [2004] UKHL 44, [2005] 1 A.C 253 D v United Kingdom (1997) 24 EHRR 423 Feret v. Belgium No 15015/07, 16 July 2009 Gafgen v Germany (App 22978/05) (2009) 48 EHRR 13 GS (India) and Ors v SSHD [2015] EWCA Civ 40 Gunduz v Turkey 35071/97 35071/97 Handyside v. UK No 5493/72, §49, 7.12.1976 Murphy v Ireland Application no.44179/98, ECtHR (10 July 2003) N v. UK 27 May 2008 Observer & Guardian v. the UK [1991] 14 EHHR 153 Pen v. France No 18788/09, 20 April 2010 R (Adam, Limbuela and Tesema) v Home Secretary [2005] UKHL 66 R (on the application of EW) v Secretary of State [2009] EWHC 2957 Ribitsch v Austria (1996) 21 EHRR 573 Rudolf [1996] EuGRZ 497 Selmouni (2000) 29 EHRR 403, para 87 Sunday Times v. the United Kingdom [1979] 2 EHRR 245 Wingrove v UK 24 (1997) 23 EHRR 313 X vs Federal Republic of Germany CoD, 38 (1972), p.77 (78-79) Table of Statutes ECHR 1950 Human Rights Act 1998 Part 1 Issue Under English law, there is no specific protection against freedom of speech before the introduction of the Human Rights Act 1998 and untill then, a claimant can seek a remedy only under common law for any infringement of his freedom of speech. After the introduction of HRA in 1998, the treatment of freedom of expression has transformed swiftly. Under HRA, the right to the freedom of expression is warranted by Article 10 of the ECHR which is safeguarded by law in the UK. Thus, court in UK has the responsibility to construe the law compatibly with the right if probable. Nonetheless, it is illegal for a public authority to function against the Article 10 of ECHR. A court in UK will be regarded as a public authority for this purpose. Thus, judges in UK are under obligation to develop the common law in accordance with Convention rights as regards to right to the freedom of expression1. The issue is whether the Home Secretary of UK , can use her power under UK criminal- justice legislation to shut down UKPFs website before the videos can be published, and this can be considered as an abusive of Norman’s right of freedom of expression granted both under HRA ,1998 and under ECHR ,1950? Rule Nonetheless, the UK government has an obligation to safeguard people from terrorists’ menace and in such cases, freedom of expression can be confined to safeguard national security and public order. The right to freedom of speech or expression is granted under Article 10 of ECHR, which is subject to some restrictions such as it can be restrained in the interest of a country’s national security or to maintain public safety or to safeguard territorial integrity. Application A UK court cannot grant an interim order prohibiting publication of a material under section 12 of the HRA unless it is fully pleased that the claimant is probable to demonstrate at full trial that such publication should not be permitted as held in Cream Holdings Ltd v. Banerjee, 2 and it should have specific attention to the significance of the right to the freedom of expression, the magnitude to which such publication is in the public interest and any particular privacy codes. Due to this fact, it has become arduous to get interim injunctions against the media3. However, UK courts can use their power to protect any religious feelings as held in Wingrove v UK4 where a ban on short film “Visions of Ecstasy” was sought under blasphemous. It was alleged that the short film was intended to portray the visions of St. Teresa of Avila, in a sexually explicit manner. The British Board of Film Classification turned down the application for the classification certificate. Even though, the ECHR found that there was a violation of Article 10 in Wingrove case, the UK Court found that there was no infringement, and ban was necessary to safeguard the rights of Christians5. In Murphy v Ireland6, the UK considered both blasphemy and also respect for religious belief of others. In this case, a request for a ban for prohibiting the broadcasting of specific religious advertisements was granted since in the Irish perspective, even an expression which is not on its face offensive, could have an offensive effect. In Gunduz v Turkey7, the belief of an Islamic firebrand for inciting people to hostility and hatred on a religious basis. The court observed that Gunduz criticism could not be considered as a hate speech footed upon religious tolerance and hence, there had been an infringement of Article 10 of ECHR8. UK courts are careful to make a differentiation in its verdict between, serious and genuine provocation to extremism and the rights of individuals, including politicians and journalist to vent their perceptions freely and to disturb, shock or offend others as held in Handyside v. UK.9 However, it is to be observed that there is no globally accepted meaning of the expression of hate speech. In order to exclude the hate speech from the protection offered to the freedom of expression (Article 10 of ECHR), the court’s case –laws demonstrated some yardsticks making it feasible to symbolise “hate speech” so as to preclude it from the safeguard extended to the freedom of expression (Article 10). However, the fundamental right namely “freedom of speech” carries with obligations and accountabilities, may be subject to such restrictions, conditions or penalties as stipulated by law and are inevitable in a democratic society. Freedom of expression can be restrained if it in the interest of territorial integrity, national security, or public safety, for the deterrence of crime or disorder or in upholding integrity and impartiality of the judiciary or for the prevention of dissemination of information obtained in confidence. Article 10 (2) of the ECHR explicitly demonstrates that the enjoyment of freedom of expression carries with it “accountabilities and obligations”. On several grounds, this right can be restricted including the prevention of crime or public disorder and national security and the safeguarding the rights or reputation of others. As held in Le Pen v. France10 and in Feret v. Belgium11, limitations on the freedom of expression may be warranted under Article 10 (2) and or Article 17, which forbids the “abuse of rights12.” In Sunday Times v. the United Kingdom13 , UK domestic court banned the publication of information about the destructive impacts on foetues of thalidomide. However, the ECHR held that the injunction issued by the UK court had infringed the rights available to the newspaper under Article 1014. In Observer & Guardian v. the UK15 , it was held by the House of Lords that injunction issued to bar the newspaper, to publish news about spycatcher was maintainable but the ECHR held in appeal that maintaining the injunction on such issues infringed the Article 10 of ECHR16. Conclusion In this case, Norman should understand that the Home Secretary, can use her power under UK criminal-justice legislation to shut down UKPFs website before the videos can be published as supported by the cases such as Pen v. France and in Feret v. Belgium in Wingrove v UK and in Cream Holdings Ltd v. Banerjee if it is required to safeguard national security and public order as Article 10 ECHR 1950 already provides exemption if it jeopardises the public order or in the national interest. Part 11 Issue Sergio , who is an illegal migrant , suffering from life-threatening disease where the advanced medical facility is not available at his home nation can be deported out of UK ? Whether Sergio can remain in silence during a police interrogation under Article 3 of ECHR ? Whetehr Sergio can claim compensation for the injuries and torture suffered during police interrogation? Whether Sergio can approach ECtHR to seek justice under Article 3 of ECHR as he had exhausted all legal remedies available under UK legislation. Rule Article 3 of ECHR safeguards a person from degrading or inhuman treatment or torture and punishment. Deportation of an illegal migrant can be regarded as an infringement of the Convention if the individual who is being deported is susceptible with persecution by the private groups or by the state in his home state. In case of degrading treatment in the police custody, Article 3 requires relevant demeanour of the state must be positively demonstrated. Article 6 of ECHR gives the right to remain in silence by a suspect during a police interrogation. Application A law discriminating on the footing of race, which compels some group members to wear an identification mark or badge in public will be considered as an interference of the rights under Article 3 of the ECHR17. In case of police custody tortures, the responding state is the only party that could produce the required corroboration. However, in Ribitsch v Austria18 case, in Selmouni19 case and in Rudolf 20case, it was held by ECHR that when taken into custody, if a person is in good health and comes out with injuries, the state is required to offer a plausible corroboration. In case if the state is not able to provide suitable explanation to the injury , then , ECtHR will be observing it as an infringement of Article 3 of the ECHR. Injury in police custody will be regarded as prima facie evidence as held in Rudolf and hence , states are under obligation to record any injuries and their reasons when the accused was in detention so as to prevent a conviction of inhuman or degrading treatment or inhuman treatment21. A person charged with the criminal offence will have the right to have the presumption of innocence. In X vs Federal Republic of Germany 22, it was held that the ambit of the safeguard does not extend to the initial police inquires under Article 6 of ECHR as this Article gives the right to remain in silence, which is a right to protection against self-incrimination. However, this right is not an absolute right and in some scenarios, negative implications can be made. In Allan v UK23 case, t where the suspect invoked his right to remain silence, and this was foiled by employing an infiltrator to record his evidence, and it was held by the Court this tantamount to negating the privilege to remain silent24. In D v United Kingdom25, it was held that a patient suffering from AIDS could not be deported to a country of origin where advance medical treatment was not available. It is to be noted that Article 3 has been made applicable even to include situations of social decay and impoverishment even in non-Convention countries26. In R (Adam, Limbuela and Tesema) v Home Secretary,27 the House of Lords offered right to override any law repudiating social support to asylum seekers who did not file their claim within the reasonable time possible. Thus, refusal of social support was considered to be as an inhuman treatment of torture demonstrates how far the Convention has attained its stake as an economic, social and right instrument in UK28. In N v. UK29, it was observed by the ECHR that the ban to the deportation will cover to the expulsion of any individual suffering from grave, naturally happening mental or physical illness, which may result in pain, suffering and minimised life span and need advanced medical treatment, which may not be available in the applicant’s nation of origin or, which may be available at huge cost. In Gafgen v Germany30, EUs Grand Chamber viewed that if police official use torture on a suspect for extracting the truth, it would be amounting to “inhuman treatment” under Article 4. However, Grand Chamber also viewed that it cannot be considered as torture if the harm did not reach the magnitude of cruelty to be regarded as torture under Article 331. In R (on the application of EW) v Secretary of State 32, it was held that where a claimant who was asked to return to Italy from UK who alleged that he was vulnerable to a risk of treatment in opposition to Article 3 of ECHR , did not result in the infringement of Article 3 of ECHR. Of late, the Court of Appeal viewed that deportation order from U.K can be issued to foreign national even when their lives were likely to impair due to lack of advanced medical facilities in their home nations. Court of Appeal is of the view that removal in such scenarios does not infringe Article 3 of ECHR except in dire extraordinary cases as held in 33GS (India) and Ors v SSHD34. D v UK verdict is occasionally followed in present times, as signatory nations’ social and medical services become more tightened and cash starving35. It is to be noted that Article 3 is now being construed to cover persecution by states but also persecutions indulged private individuals as it forces governments not to deport or return anybody to a nation where they are vulnerable to danger, whether at the hands of militant groups or state agents. In Ahmed v Austria36, the interpretation of Article 3 has barred the deportation of a sentenced armed robber back to Somali since he could be caught up in the civil war there37. Conclusion It is advised that Sergio can make a complaint to the European Court of Human Rights under Article 3 ECHR 1950. Sergio can cite the Ribitsch case, Selmouni case and Rudolf case, and can claim compensation for injuries sustained during interrogation by police. Sergio can refer the case Allan v UK and can remain silent during police interrogation. Sergio can refer D v United Kingdom and R (Adam, Limbuela and Tesema) v Home Secretary, and claim that he cannot be deported to his home nation as there is no availability advanced medical treatment to treat his ailment. 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