Human Right to Humane Treatment - Term Paper Example

Article 3 of the European Convention Introduction: In 1992, Amnesty International reported that incidents of inhuman and degrading punishment were reported in more than 70 countries.1 The respect for the human rights of an individual includes the “freedom from discriminatory or arbitrary treatment.”2 The implications of human rights within a legal framework is that an individual has certain rights, which will be the same for everyone, irrespective of age, gender, religion, nationality or sexual orientation. The European Convention on Human Rights has therefore set out certain provisions with the aim of securing to all citizens, the rights and freedoms guaranteed under the EC treaty. Under the Treaty, inhuman and degrading punishment would violate the rights of an individual, or even a child, to freedom from arbitrary treatment - such as excessive punishment or torture under imprisonment. There have been allegations of inhuman and degrading treatment in prisons and the provisions of the Geneva Convention have been found inadequate in this regard. However, Article 3 of the European Convention addresses all such violations of the right to freedom from discriminatory treatment. Article 3 has been primarily applied in respect to international victims of torture and cruel, arbitrary treatment while imprisoned. However corporal punishment of children is also emerging as an area where the provisions of Article 3 would apply. Such punishment would be equivalent to mental and physical torture which is deemed to be unacceptable under the Convention. Yet traditional belief has held that corporal punishment is an essential part of discipline and this conflict between punishment and freedom from torture has generated controversy within the European Union. Part I: The right of the individual to humane treatment is recognized under Article 3 of the European Convention of Human Rights, which states clearly that; No one shall be subjected to torture or to inhuman or degrading treatment or punishment3. In view of the fact that “we live in a society in which violence is spreading like a plague”4 and incidents of terrorist violence and destruction are soaring, the provisions of Article 3 of the Convention help to protect individuals from violence. When the violence or torture is perpetrated on children through corporal punishment, there is a special cause of action that arises for the exercise of Article 3, since children are in a weaker position as compared to adults. Corporal punishment can sometimes be excessive and thereby constitute degrading treatment that harms the child physically, emotionally and mentally. Legal reforms have been undertaken in several countries to declare corporal punishment of children unlawful - a violation of the protection against torture and inhuman treatment guaranteed under Article 3. The European Commission and the Court of Human Rights in Strasbourg have received several applications to enforce the rights of children to protection against inhuman or degrading treatment through corporal punishment. In 1978, the practice of judicial birching of juveniles that was in practice in the Island of Man was deemed to be a breach of Article 3 that constituted cruel and inhuman punishment5. While this practice was acceptable in that particular geographical area, the Strasbourg Court deemed it unacceptably cruel to young people. In order to ensure compliance with the provisions of Article 3, several countries have deemed corporal punishment to be an unlawful practice on the grounds that it inflicts cruel and inhuman torture on children. In May 1996, courts in Italy ruled against corporal punishment and stated; “the use of violence for educational purposes can no longer be considered lawful.”6 In 2000, the Supreme Court of Israel invoked the provisions of Article 19 of the Convention of the Rights of the Child in justifying its position that corporal punishment constitutes a breach of Article 3, since it amounts to a “humiliation and derogation from their dignity.” The Court declared unequivocally; “The use of punishment which causes hurt and humiliation does not contribute to the child’s personality or education, but instead damages his or her human rights.”7 Where parents have challenged national ban of corporal punishment, the European Human Rights Court has rejected such applications. In the case of Seven Individuals v Sweden8, the Court rejected the appeal of parents against a ban on corporal punishment by stating, “The actual effects of the law are…..to discourage abuse and to prevent excesses which could properly be described as violence against children.” In September 2000, the Court refused to even hear an application from Christian schools to lift the ban on corporal punishment.9 Another significant decision of the European Court was in Campbell and Cosans v UK,10 where the students were suspended from the school for refusing to receive corporal punishment. The Court declared that the boys’ rights had been violated, since they had been denied their rights to education. The Court has deemed the children to be on par with adults and equally deserving of prevention from torture or inhuman treatment, since they are also individuals. Since no clearly defined limits have been set by individual countries to regulate corporal punishment, the Court at Strasbourg has deemed corporal punishment to be illegal and a violation of Article 3. It has also established several guidelines for judicial authorities in the member States, to determine when there will be a violation of the provisions of Article 3, ,as in the case of A v The United Kingdom.11 In this case, the unanimous decision of the Court was that the caning of a young boy by his stepfather constituted “inhuman or degrading punishment” and was a direct breach of Article 3. The Court deemed it the duty of higher authorities to ensure that measures are taken to “ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading punishment, including such ill treatment administered by private individuals…” The Court ordered the UK Government to pay damages of 10,000 pounds to the boy, together with his legal costs. The European Court also ruled in favor of children who had been subjected to sexual abuse, holding the local authorities liable for failing to protect the children from such degrading treatment.12 These decisions of the European Court have recognized the rights of the child to receive fair and humane treatment, to have their freedom and their dignity respected, so that they are not made subject to the whims of their parents and/or teachers because of their position as weaker members in society. In countries such as the U.K, the decisions of the Court have established the need to bring about reforms in established systems in order to ensure that the rights of the child are not trampled upon. The most important contribution of the European Court has been in setting out clear guidelines for member States to determine if there has a been a violation of the rights of children under Article 3. Part II. The case of A v K was a landmark decision of the European Court in terms of the debate it invoked in the UK. The domestic law in the U.K. allows the defense of “reasonable chastisement” which was first established under common law in 1850 by the Chief Justice of England: “By the law of England, a parent may for the purposes of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable”.14 However, no prescribed limits have been set out by the Courts in terms of what exactly constitutes “reasonable” chastisement, which would not fall under the category of inhuman and degrading treatment. A Government sponsored research survey carried out in the UK in the 1990s discovered that corporal punishment is common in the U.K. and over one third of the children in the survey had experienced “severe” punishment aimed to cause physical injury.15 The decision in A v UK however, challenged the traditional notions of “reasonable chastisement” as it existed in the U.K. The European Court held clearly that provisions in UK law were not sufficient to ensure protection of the child; the legal parameters of the “reasonable chastisement” clause were unclear because they did not provide any guidelines to the judges as to what factors they should consider in assessing whether the punishment amounts to inhuman or degrading treatment as prescribed under Article 3. In the case of A v UK, the father won his case in local courts on the grounds of “reasonable chastisement”; however the European Human Rights Court found that the caning in question amounted to inhuman and degrading treatment.16 In the matter of corporal punishment, the best guidelines as to what could constitute reasonable punishment, may be found in the case of R v Terry,17 where it was held that the punishment should be “moderate and reasonable” and the standard for judging this would be in relation to “the age, physique and mentality of the child” and in carrying out the punishment “a reasonable means or instrument” was to be used, one which is not “totally unrelated to usual disciplinary practices.” Thus, reasonable punishment would not employ the use of iron rods or studded belts designed to inflict harm and injury, which would constitute inhuman and degrading punishment. Moreover, the case of R v Terry also held that a child too young to understand correction should not be subjected to it. Subsequent cases in the UK reflect the input of the European Court and its judgment in A v UK, as for example the case of R v H18, which further refined the definition of “reasonable chastisement”. The judgment in this case identified the factors that had been pointed to as guidelines by the Court at Strasbourg, such as “the nature and context of the treatment; its duration; its physical and mental effects and, in some instances, the sex, age and state of health of the victim” and clarified it further, by stating that another factor which should also play a role in the decision, is the reasons that are given by the Defendant for administering such treatment. Subsequent to the decision of the European Court in A v UK, the Government recognized the need for reform and redefining of the parameters of “reasonable chastisement” to include provisions against inhuman and degrading treatment under Article 3 of the European Convention. With the introduction of the Human Rights Act of 1998 in the UK, the provisions of the European Convention on Human Rights have also been incorporated into UK law. Section 3 of the Human Rights Act of 199813 states that UK Parliament legislation must be read and given effect to in a manner that will be compatible with European Convention guarantees of fundamental rights. The burden of judicial interpretation that rests upon the English Courts is meant to ensure that the goals set out in the Treaty and the freedoms guaranteed under the Convention are applied within the U.K., to the greatest extent possible. Individuals in the U.K. are also free to directly approach the European Courts in the event there is a violation of their rights under the Convention. Since the incorporation of the Human Rights Act of 1998, there have been further cases that have come up before the Courts in 2000 and 2001 where parents have been acquitted after assault on their children20. The latest reform measures undertaken by Government to protect the rights of children is the Children and Adoption Act of 2005 which provides for adoption, if necessary, where parents are guilty of unreasonable and excessive assault that would constitute abuse and/or inhuman and degrading punishment under Article 3 and therefore a breach on the fundamental rights of the child. Conclusion: On the basis of the above, it may be noted that the provisions of Article 3 are extremely important in the context of increasing levels of violence in society today. While there are several aspects that would constitute a breach of the provisions of Article 3, including unfair and derogatory treatment in jails, the question of corporal punishment for children and the limits that must be set upon it are an important aspect of the protection afforded under Article 3. Children would be viewed as individuals under the Human Rights Act and not subject to their parents, therefore deserving the protection to the fundamental rights of the individual that are granted by the European Convention. While the practice of corporal punishment is common in the U.K., the recent incorporation of the European Convention into the Human Rights Act via article 3 of the 1998 Act in the U.K. mandates equitable treatment for children. The reform measures undertaken under the Children and Adoption Bill of 2005 may be helpful, since they focus upon the well being of the child, thereby giving legal force to the provisions of Article 3 of the European Convention in respect to children. Bibliography * Amnesty International report, 1992 * A v UK (1998) 2 FLR 959 * A v The United Kingdom (100/1997/884/1096) [Online] Available at: http://hudoc/echr.coe.int/hudoc/, application no: 25599/94 * Application No: 55211/00, Philip Williamson and Others v UK. * Campbell and Cosans v UK1982), 4 EHRR 293 * Cambria, Cass, sez. VI, 18 Marzo 1996 [Supreme Court of Cassation, 6th Penal Section, March 18 1996], Foro It II 1996, 407 (Italy). * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm; accessed 1/15/2006 * Feldman, David. Civil liberties and human rights in England and Wales. Oxford University Press, 2000, pp 4 * Foster, Steve, Human Rights and Civil Liberties, Longman (2003) * Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3 * Israel Supreme Court, Criminal Appeal 4596/98 Plonit v A.G. 54(1)P.D. * Nobles, Gavin and Smith, Marjorie, Physical punishment of children in two-parent families. Clinical Child Psychology and Psychiatry, pp 271-281. * R v Terry (1955) VLR 114 * R V H (Reasonable chastisement) Court of Appeal, Criminal Division, judgment of 25 April 2001,The Times 17 May 2001 * Report of the Committee on the Rights of the Child. Violence against children in the family and in schools , pp 3. [Online] Available at: http://www.crin.org/docs/resources/treaties/crc.28/Childrenareunbeatable.pdf; accessed 1/18/2006 * Seven Individuals v Sweden, European Commission of Human Rights, Admissibility Decision, 13 May 1982. * Tyrer v UK 2 EHRR 1 (25/4/1978) #28 Read More