European Convention on Human Rights - Essay Example

ANALYSE CRITICALLY THE EVOLUTION OF THE IDEA OF POSITIVE OBLIGATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS, USING EXAMPLES FROM THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS 1. Introduction The protection of human rights around the world is promoted and guaranteed by the state. However, it is possible that Conventions and International Treaties are also developed on the specific field – especially if the national legislation regarding the protection of rights is proved to be inadequate – taking into consideration the social and political context of each specific country and the measures taken for the enforcement of the decisions referring to the protection of human rights. In European Union, rules focusing on the protection of human rights have been developed in member states1; however, through the years it has been proved that these rules did not serve the interests of people across their territory – mostly because the enforcement of these decisions was not appropriately monitored by the state. For this reason, the development of a legal framework focusing on the protection of human rights across Europe has been initiated around the 1950s; the European Convention on Human Rights2 that was signed in Rome in 1950 was one of the fundamental legal documents promoting the protection of human rights in a Union of states that was then only geographically defined. However, the effectiveness of the rules of European Convention on Human Rights can be challenged; even if the articles of the Convention set clear rights and obligations, there are many cases that the violation of human rights within the EU is not appropriately punished especially if the issue is not brought before the European Court of Justice – which has the ability to intervene directly3 – i.e. no prior view of National Court on the issue is required. It should be noticed that the Convention refers to rights and obligations related with the human rights across the EU. The rights are clearly stated in the Convention (e.g. right to freedom, right to life, right to private life, right to liberty and so on) while the obligations can be either directly or indirectly identified (e.g. the prohibition of torture or the right to a fair trial require from the national legislator to appropriately change existing legislation in order to ensure the protection of the above rights). The specific obligation can be characterized as a ‘positive obligation’ which is the main issue under examination in this study. The content and the characteristics of positive obligations are analyzed in the sections that follow using both the literature and the case law. 2. European Convention of Human Rights – main aspects 2.1. Historical context of the Convention The European Convention on Human Rights was signed in Rome in 1950; however, the Convention did not come into force up to its full ratification – by 10 countries – in 19534. One of the major characteristics of the Convention was the fact that for the first time a commonly initiated framework on the protection of human rights was applied on a broad region – the European Union. At a next level, the body that would examine all claims related with the violation of human rights in the European Union was established: this is the European Court of Justice which has played a crucial role – since its establishment – in the promotion and respect of human rights across Europe. In many cases, the decisions of the Court are regarded as not reflecting the intentions of the Convention’s founders – an issue that will be explained through the literature and the case law in the sections that follow; however, the social and political conditions of the period in which the Convention was signed – and ratified – have been changed significantly; for this reason, the text of the Convention needs to be appropriately interpreted in order to meet the needs of the Union’s population under current social and political ethics. The above target has been met through the introduction of a series of protocols that have been incorporated in the text of the Convention; these protocols5 ensure that all potential violations of human rights will be punished in accordance with the rules of the Convention. 2.2 Human rights protected by the European Convention on Human Rights As it is noticed above, the European Convention on Human Rights includes rules that refer to a series of human rights – right to life, right to freedom, freedom of speech, right to a fair trial, prohibition of tortures and so on. The potential violation of these rights is subject for examination by the European Court of Human Rights – it is noticed above that the direct application to the above court has been established through the Protocol 11 to the Convention (1998). The conditions under which a violation of these rights can occur are clearly explained by the ECJ and can be identified through the study of the relevant case law. These conditions are also described in the text of the Convention – and its Protocols – however, the study of the specific text can offer only theoretical guidelines; the practical implications of these rules can be identified and understood only through the case law published on the particular field. One of the most important characteristics of the Convention is the fact that its provisions are equally applied for all citizens within the European Union – with no discrimination because of their race/ gender/ social or financial background. The above priority is set clearly in the article 14 of the Convention in which it is noticed that “the enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”6. However, it is not made clear how the application of the above article can be guaranteed in practice. Existing case law of the European Court of Justice proves that the examination of all cases is based on fair criteria – up to now the specific Court is considered to proceed to the hearings of cases without being influenced by the gender/ race/ social background of the applicants. In the future, the continuation of the above practice should be ensured by introducing relevant mechanisms of control – the continuous increase of the number of cases brought before the European Court of Justice could lead to a potential violation of the Court’s principles (equality and fairness in the provision of justice) even without the willingness of judges – the increase of volume of work can lead to the limitation of the time spent on hearings with all potential consequences on the quality of decisions. As explained above, current paper focuses on the examination and evaluation of positive obligations of states as set in various rules of the Convention; for this reason, no further analysis will take place regarding the content and the protection of human rights in general through the Convention; rather, a detailed reference will be made on the positive obligations as related with the human rights established by the Convention provisions. 3. Positive obligations under the European Convention of Human Rights As noticed above the Convention includes rules that refer directly to specific rights (e.g. right of freedom, right of life, right to fair trial and so on); however, it also includes provisions that refer to the obligation of the member states to take specific measures regarding the protection of the Convention rights7. The Convention is used by the National Courts when one or more of the fundamental human rights – as described in its text – are under threat. In most cases the national court takes into consideration not only the circumstances of the particular violation but also the context and the scope of the Convention’s provisions8. From another point of view, the existence of the positive obligations declares the legal strength of the European Union, i.e. its ability to intervene directly in the National law and create obligations for a particular state. Moreover, the existence of the positive obligations cannot lead to the assumption that member states are excluded from the international law on human rights9. In fact, International Treaties should be respected by the member states – only if they are binding, i.e. they have been appropriately verified by those states. There is also the case of United Nation, an international organization that can intervene in disputes related with the violation of the human rights and even proceed to the necessary military support for the resolution of the crisis (if this solution is considered as appropriate). Case Law Positive obligations can have many aspects10 referring to a series of rights. We could indicatively refer to the right to health in terms of the measures taken by the member states for the provision of appropriate treatment to patients but also the policies developed regarding the equal chances to health by people of different social/ financial background or those who don’t have the chance to search for appropriate treatment (e.g. prisoners and so on). The specific issue has been examined by the European Court of Human rights in the case of Holomiov v Moldova11. In this case, it was concluded that the medical care provided to the particular individual (Victor Holomiov) was not the appropriate taking into account his health condition. The specific state (Moldova) was found to be guilty for not having provided the appropriate medical treatment to the patient/ prisoner – the fact that the specific person was held imprisoned because of a series of legal faults – as explained in the text of the case – was also taken into consideration. However, similar assumption could be made even if all necessary legal requirements had been met for the imprisonment of V. Holomiov. Referring to the right to life – while in custody - the British Parliament has held that the relevant duties of Britain (as resulted from the Convention) can have two different aspects: a) the protection of health of those people that are sick and b) the development of measures for the effective examination of the conditions of death of the people that have been died while in custody12. It should be noticed that the terms related with the provision of fair and appropriate treatment by the relevant organizations in member states should be regularly reviewed13 regarding their feasibility under specific social/ financial conditions (i.e. if the targets set are approachable taking into consideration also the condition of the national economy). The positive obligation of a state to protect the human rights included in the provisions of the Convention can also lead to the obligation for the provision of the necessary resources (human and financial) in order for a specific legal case to be resolved (e.g. a case involved in a murder or an accident)14. In this context, the lack of the necessary resources for the development of the legal investigation can lead to the responsibility of the state to compensate the victim or his/ her relatives. The existence of the specific right – to ask for compensation in case of violation of human rights – is also clearly stated in the article 41 of the Convention which states that ‘If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party’15. The issue of tortures within the context of the criminal justice procedure has been also extensively set under examination by the European Court. However, the specific issue can present many aspects; the relevant claim can be examined both directly as also through another claim. An indicative example is the case of Ciorap v Moldova16 where the right of the applicant to apply to the Court because of tortures he suffered when in custody has been related with the applicant’s ability to pay the legal fees. The European Court of Justice held that there could be no such a relation – dependency – because of the nature of the claim and that in this way the national court has violated the article 6 of the Convention. In a similar case, Bakan v Turkey, the European Court held that the payment of legal fees although considered obligatory in order for a case to be heard by the Court, it cannot be used as a reason for the non – examination of a specific claim – if the relevant sum is not paid17. The above ruling involves mostly in cases where there is a clear inability of the claimant to pay the fees – because of his family conditions (lack of financial support by the state or limited support, lack of regular income, loss of a family member especially when this member was responsible for the family’s income and so on). The violation of the right in private life has been set under examination by the ECJ in the case of Copland v United Kingdom. In the specific case the Court held that the monitoring of ‘an employee’s telephone, email and internet usage without her knowledge engaged in conduct amounting to an interference with her right to respect for private life and correspondence within the meaning of art 8 of the European Convention’18 . In the above case the right in private life incorporates the right to communicate but also the right to keep the privacy of personal details. The right in private life can be related with the right in life in general; privacy is an important part of any person’s life offering the necessary framework for the protection of other rights, like the right to work (that can be threatened through the release of details on a person’s work) as well as the freedom of speech which cannot be prohibited or limited under the threat of the publication of a personal conversations. The specific issue is also highlighted in the study of Woogara (2001) who notices that ‘privacy is a basic human right, and that its respect by health professionals is vital for a patient’s physical, mental, emotional and spiritual well-being’. The above study refers specifically to the right in privacy in relation with health. The reason for the reference to the specific issue is the fact that the privacy of patients can be violated by healthcare practitioners by many different methods. All aspects of privacy are protected by the rules of the European Convention, which guarantees the protection of private life in general – with no reference to a specific part of it. Conclusion The development of the European Convention on Human Rights has been a significant initiative towards the protection of human rights across the European Union. Measures taken by state are proved to be inadequate – either because of the lack of provisions referring to the various aspects of human rights or because of the inability of the National Courts to enforce the relevant decisions. For this reason, the Convention can be considered as quite valuable meeting the needs of people in EU - the Convention has been appropriately alternated in order to include provisions for all potential violations of human rights in European Union. On the other hand, in the case law presented and analyzed above, the effectiveness of the decisions of European Court of Human Rights has not proved – at least not fully; the decisions taken are well justified and fair – at their high percentage. However, still weaknesses can be identified especially regarding the enforcement of these decisions within the member states. On the other hand, the establishment of positive obligations for the member states has been a valuable initiative of the European legislators. The rules related with these obligations have led to the development of a series of benefits for the people that have suffered a violation of their rights. It has been proved through the case law that the European Court of Justice is not based only on the text of the Convention when having to evaluate the behaviour of a state in accordance with the positive obligations established by the Convention; the circumstances of the specific action are also thoroughly examined and appropriately analyzed making sure that the person that suffered a violation of his/ her rights as a result of the breach of a state’s positive obligations (as described in the text of the Convention) will be appropriately compensated. It should be noticed that each state may respond differently on the Convention’s obligations. It is an issue of the cultural/ legal background but also of the structure of the state’s legal system – despite the fact that no particular differences have been identified up to now between the countries of the common law and those of the civil law – which is followed by the majority of states in the European Union. References Ahmed, Tawhida, The European Union and Human Rights: An International Law Perspective. European Journal of International Law, Volume 17, Number 4, September 2006, pp. 771-801(31) Alastair R. Mowbray, The Development of Positive Obligations Under the European Convention on Human Rights by the European Court of Human Rights. London: Hart Publishing, 2004 Peter R. Baehr, Monique C. Castermans-Holleman, Godefridus J. H. Hoof, Jacqueline Smith. The Role of the Nation-state in the 21st Century: Human Rights, International Organisations, and Foreign Policy: Essays in Honour of Peter Baehr. Leiden: Martinus Nijhoff Publishers, 1998 Rogers, J. Applying the doctrine of positive obligations in the European convention of human rights to domestic substantive criminal law in domestic proceedings. Criminal Law Review, 2003 (Oct). pp. 690-708. S. Fredman, Equality: A New Generation? Industrial Law Journal, Volume 30, Number 2, 1 June 2001, pp. 145-168(24) Woogara, J. (2001) Human Rights and Patients’ Privacy in UK Hospitals. Nursing Ethics, Vol. 8, No. 3, 234-246 Websites Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms - CETS No.: 005, 2008, available from http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CL=ENG European Court of Human Rights, 2008, available from http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/ Parliament, UK, Joint Committee on Human Rights, Third Report, (2008), available from http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/15/1505.htm The Human Rights Law Resource Centre, UK Court of Appeal Considers Positive Obligations Arising from Right to Life, online report (2008) http://www.hrlrc.org.au/files/RHBAHMBDFI/Van%20Colle%20&%20Anor%20v%20Hertfordshire%20Police.pdf Case Law Bakan v Turkey [2007] ECHR Application No 50939/99 (12 June 2007) Ciorap v Moldova [2007] ECHR Application No 12066/02 (19 June 2007) Copland v United Kingdom [2007] ECHR 62617/00 (3 April 2007) Dickson v. the United Kingdom (Application no. 44362/04), 4 December 2007 (European Court of Human Rights) Frerot v France [2007] ECHR Application No 70204/01 (12 June 2007) (European Court of Human Rights) Holomiov v Moldova, (Application No 30649/05), 7 November 2006 (European Court of Human Rights) Main(R) v Minister for Legal Aid [2007] EWHC 742 (2 April 2007) M.C. v. Bulgaria (Application no. 39272/98) 4 December 2003 (European Court of Human Rights) Stjerna v. Finland (Application n. 18131/91), 25 November 1994 (European Court of Human Rights) Van Colle & Anor v Hertfordshire Police [2007] EWCA Civ 325 (24 April 2007) Read More