European Convention on Human Rights (ECHR) - Case Study Example

Right to Life under Article 2 of the European Convention on Human Rights (ECHR) I. Introduction The right to life is a universal right that must be enjoyed by all human beings. According to Article 2(1) of the European Convention on Human Rights (ECHR),” Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” The right to life is one of the most basic rights afforded by the law. According to the International Covenant on Civil and Political Rights (ICCPR) (1996)1, the right to life is the “supreme human right” as it is the basic right that a human being can enjoy. As a primary right of human beings, the right to life as enunciated in Article 2 of the ECHR gave rise to the obligation of the state to ensure that everyone is accorded protection from intentional harm. The State has a duty not only to “refrain from intentional and unlawful taking of life but also to take appropriate steps to safeguard lives of those within its jurisdiction.”2 The obligation of the State includes the protection against a real risk of harm from the acts or omissions of the State and its agents as well as any identifiable individuals, provided that the State or its agents possess certain knowledge that indicates a grave amount of risk. Contrary to what we may perceive, the right to life as presented under the law is not really as inviolable as it seems at first glance. Much as we would like to believe that this right is absolute, the law presents a number of occasions where the State may lawfully take the life of a person under its jurisdiction3. Furthermore, it seems that the obligation of the State to protect the lives of the people under its jurisdiction is not absolute either. There are many cases where the Court and the Commission decided that the obligation of the State to accord protection is not absolute. The case of Osman presents a very good example on how the State can negate its obligation to protect its subject. Although such right to life as defined in Article 2 ECHR admits several types of exceptions including “execution of a sentence of a Court”4 and in the case of Osman v United Kingdom (2000)5, a reasonable compliance of the authority to extend protection to the applicant. Note that in the case of Osman, the court ruled that “not every claimed risk to life can entail for the authorities a convention requirement to take operational measures to prevent that risk form materializing.” According to this decision, the law enforcement agency has priorities and it resources are limited, thus, its obligation towards the protection of life must be interpreted as limited to such situations where there is no disproportionate burden imposed upon it. Although the right to life afforded by Article 2 ECHR has been considered as a basic right of an individual, the decision of the Court in the Osman case and in the earlier case of Hill v Chief Constable of West Yourkshire (1989)6 seem to negate the obligation of the State to provide protection to the lives of people under its jurisdiction. Note that in the ruling of the Court in the Osman case the Court so stated that the obligation of the state to protect the lives of its people is subject to limitations such as the priorities of the law enforcement agency and the available resources. Such statement of the Court gave rise to arguments that Article 2 of the ECHR is a weak convention right because it requires that the act or the omission which produced the harm must be considered as unreasonable before it can be declared as unlawful. To help us understand the essence of Article 2 ECHR, let us take a critical look into the case of Osman and other related cases. II. Evaluation of cases What happened in the Osman case was that the teacher, Mr. Paget-Lewis became disturbingly attached to his student Ahmet Osman. The police responded to the complaint of Osman and conducted an investigation. However, while the attachment of Mr. Paget-Lewis was quite disturbing, the police who visited the school in March 3 and May 4, 1987 and conducted the investigation did not find enough evidence to show that Osman was in danger of sexual molestation or being killed. The police decided that although the actions of Mr. Paget-Lewis is grossly unprofessional, nevertheless, he did not manifest any actions that would make the police suspect that Ahmet Osman is in immediate danger. A year after, in March 7, 1988, Mr. Paget-Lewis went to the house of the Osman’s killed Ali Osman and seriously injured Ahmet. Based on the appraisal of the facts of the case, the Court ruled that the police did not commit any negligence in according protection to the complainant. According to the Court, “the police have to discharge their duties in a manner which was compatible with the rights and freedoms of individuals.” Since in this case the murderous tendencies and unsoundness of the mind of Mr. Paget-Lewis was not established before the incident happened, the police could not be criticized for giving weight to the presumption of innocence of Mr. Paget-Lewis. As there was no reasonable basis to fear that Mr. Paget-Lewis would kill the victims, the police could not reasonable use the power of “arrest, search and seizure”. 7 Clearly, the intent of the Court here is to balance the rights of all people involved in the situation. All the victims may claim that their right to life has been violated when the police failed to conduct any preventive actions, the fact that such preventive actions if not well founded will also constitute as a violation of the freedom of the other person. Although Article 2 of the ECHR provides protection for individuals from the unlawful actions of the State and its agents, it does provide for unconditional protection to life. In the case of McCanne and Others v United Kingdom (1995) 8 , the Court said that the “object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make it’s safeguards practical and effective.”9 In fulfilling its obligation to protect the rights of the people under its jurisdiction, the State has the discretion to determine as to whether or not such act of according individual protection impose an unreasonable burden on the part of the State or its agent10. Where the police used high level of discretion in the implementation of its function, the Court ruled that it had not violated Article 2 of ECHR even if all the disputed facts are resolved in the claimant’s favor11. Given the arguments in the case of Osman that the obligation of the State to give individual protection to the people under its jurisdiction is not absolute, we now come to the question of the extent and scope of the obligation of the State to give protection. In W v United Kingdom12, the complainant asserted that the State is not fulfilling its duty of protecting the people under its jurisdiction when it failed to stop the killings perpetrated by the Irish Republican Army (IRA). According to decision of this case, although the Court recognized that the State and its agents have a “general obligation to provide a reasonable level of protection against the acts of terrorists”13 such obligation of the State could not be extended to include “all types of violence.”14 This means that where the threat to the person does fall within the category of terrorism as what have been described under this case, there is really no reason for the State to provide additional protection. On the other hand, the case of X v Ireland15 gives a cleared explanation as to what extent should the State accord individual protection to its subject. In this case, the Commission recognized the dangers of paramilitary attacks in Northern Ireland and how the police and security forces are obliged to provide reasonable level of protection against the acts of terrorists. Note that at the time this case went into trial, the Irish Republican Army (IRA) has been hunting down some people in Ireland. In the case of X v Ireland, the complainant protested when the police withdraw its protection because according to the complainant, such act would make him vulnerable to the IRA and thus constitutes a violation of his right to life under Article 2. the Commission ruled that the State has the obligation to provide continuous police or security forces protection where a specific threat to life existed. However, the Commission also said that Article 2 could be interpreted “as imposing a duty on a State to give protection of this nature for an indefinite period.”16 Clearly, it is impossible for the State to extend individual protection for an indefinite time thus, when it comes to the failure of the State to accord protection to the its subject will only become unlawful where the State failed to give protection in certain well-defined circumstances “to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another.”17 Furthermore, the Court so ruled that such obligation to provide protection does not mean that the State or its agents are bound to respond to any given situation where there is a risk to the life of a person. “Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from happening.”18 According to the case of Keenan v United Kingdom19, Margaret Younger v United Kingdom20 and in the case of Erikan Bulut v Turkey (2006)21 the Court ruled that where is a positive obligation to protect the life of a person, the State or its agent such as the police shall be help in violation of Article 2 “if they failed to take measures within the scope of their powers which, judge reasonably, might have been expected to avoid that risk.”22 The virtue of this ruling of the Court, the police or any other agents of the State who are excising their duty properly will not be liable for violates of Article 2. II. Conclusion Although the intent of Article may be for the protection of life, the construction Article is not as strong as Article 3 of the Universal Declaration of Human Rights 194823 which states “Everyone has the right to life, liberty and security.” Compared to Article 6(1) of the International Covenant on Civil and Political Rights which states “Every human being has the inherent right to life”, Article 2 of ECHR is also not so strongly worded. Furthermore, Article 2 of the ECHR admits exceptions which may be construed as a permission on the part of the State and its agent to take life without being held liable. Another proof that Article 2 of ECHR does not afford enough protection lies in the decisions of the Commission and the Courts regarding the interpretation and the application of Article 2. Note that in the cases mentioned earlier, the obligation of the State to protect the lives of the people under its jurisdiction is deemed subject to the reasonability test where the obligation to protect life on the part of the State shall be limited to instances where no disproportionate burden have been imposed. Following the decisions given by the Commission and the Court in the cases mentioned above, we can clearly see that the rights afforded under Article 2 of the ECHR are indeed not strong enough to afford protection to people who may be endanger. Although it is a given fact that the State do not have unlimited resources nor does it has control over the actions of the people under its jurisdiction, the fact still remains that the right to life is supposed to be a primary right and a springboard of all other rights of a human being. Being a primary right, the right to life should be considered as inviolable, thus, it must be accorded enough protection under the law. There should never be any compromises on the matter of protecting lives. Article 3 of the European Convention on Human Rights I. Introduction Article 3 of the European Convention on Human Rights (ECHR) is one of the shortest provisions of the ECHR. Unlike the some of the provisions of the ECHR, Article speaks in absolute terms, “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”.24 Note that Article 3 only has one sentence and there are no qualifications whatsoever in this provision.25 Consequently, because this article is couched in absolute terms, there can be no derogation from this provision under Article 15 of the ECHR. According to the case of Chahal v the United Kingdom (1996)26, “Article 3 enshrines one of the most fundamental values of democratic society…the convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.” This means that the fact that the person who is seeking the protection of this law is criminally liable in his or own country may seek protection under this law provided that he or she is facing the treat of inhuman treatment if he or she returns to his or her country. As decided in the case of Chahal, the conduct of the person is irrelevant because the law itself did not make any distinctions. Who can invoke the protection of Article 3? According to the case of Chahal, anyone who is within the territories of the contracting States may invoke the protection afforded by Article 3. This means that even if a person is a foreigner and he or she came from a country that is not a signatory to the convention, he or she is still entitled to the protection given by Article 3. Since Article 3 does not distinguish the status of the person who seeks protection, we can say that this provision of the ECHR provides a more comprehensive form of protection as compared to the Geneva Convention in relation to the status of refugees that seeks protection.27 II. Application of Article 3 to the case of Carl and Paul Banks In our hypothetical case of Carl and Paul banks, Carl was accused of killing his two children Sophie and Chloe while Paul is wanted for murder in South Dakota, United States. To get a cleared picture of the rights of Carl and Paul, let us tackle their circumstances separately. a. Rights of Carl According to the facts of the case, the police got angry when Carl did not cooperate during the interview. The police took turn is slapping Carl Banks across the face. The police also knocked him on the floor and kicked his abdomen. When night came, Carl was left inside the interview room without food or medical attention. He was not provided with sleeping facilities nor did he have the opportunity to use the toilet. The question now is whether or not the treatment of Banks under police custody satisfies that requirement of severity to constitute a violation of Article 3. Note that not all perceived brutality is considered as severe enough to constitute torture. In defining the word torture, The Convention against torture and other cruel, inhuman and degrading treatment or Punishment28 describe this as “any act by which severe pain and suffering, whether physical or mental, in intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession punishing him for an act he or a third person has committed or is suspected of having committed…” and that such suffering had be caused or “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity…” The use of torture is strictly prohibited under the law. Article 3 of the ECHR is absolute when it comes to the prohibition of torture. As stated in the case of Al-Adsani v. UK, [2001]29, the prohibition of torture is something that is universal and “any other customary rule that is inconsistent with the prohibition is utterly invalid to the extent of the inconsistency.”30 However, in the case of Balogh v Hungary (2004)31 the Court ruled that the ill-treatment must attain a certain level of severity before it can actually come into the sphere of Article 3. Although the assessment of the severity of the ill-treatment is considered as relative and depends much on the duration, the mental state, the age and physical status of the person32, still it is worthwhile to note that in this case, the Court indicated that there must be a certain degree of injury that the person must suffer before he or she can seek redress under Article 3. The question now is whether or not Carl Banks indeed suffered such degree of ill-treatment. Note that in the case of Ireland v. the United Kingdom33 the court noted that deliberate inhuman treatment must cause very serious and cruel suffering. The degree of severity of ill-treatment is considered as relative. In the case of A v United Kingdom34, the Court ruled that “beating a child with a garden cane using considerable amount of force on more than one occasion” is considered as severe and should be taken under the context of Article 3. On the other hand, in the case of Tekin v. Turkey35 it ruled that where a person is deprived of his liberty, “recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity”. In our case, there was no showing that Carl Banks put up a fight that would warrant the application of force on the part of the police. Judging by the facts of the case, Banks was merely “uncooperative and sullen.” On the other hand, let us compare the case of Banks with the case of Selmouni v France (1999)36 where the Court found that the requisites of severity of ill-treatment were satisfied. In the case of Selmouni, the complainant was taken into custody by the police and was subjected to violent treatment to extract a confession. Selmouni in this case was kept in the custody of the police and he was able to prove that he suffered injuries while in the custody of the police. The severe injuries suffered by Selmouni were properly documented in the medical reports presented in Court. Based on the evidences presented37, Court ruled that acts described under the complaint had caused pain and fear on the part of the complainant therefore constituting a violation of Article 3. Applying the above cases in the case of Carl Banks, we can surmise that where there is no clear showing that Carl suffered enough injuries to satisfy the requirement of severity under the law, Banks may not be able to assert his rights successfully under Article 3. Note that unlike the case of A v United Kingdom where the victim was a child of tender years, Banks is presumably an adult and in good physical condition. However, in the event where Banks who was taken into custody by the police in good health but was later on found to be injured when he was release from police custody, “it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention.”38 b. Rights of Paul In the case of Paul, the police found out that he was wanted for the allege killing his girlfriend in the State of South Dakota in the United States. According to Paul, if proven guilty, he would be subjected to death penalty through lethal injection. He now pleads for protection under Article 3 of the ECHR. The issue now is that whether or not Paul is qualified to seek protection. In the case of Soering v United Kingdom39, the applicant who is a national of West Germany fled to the United Kingdom after he was accused of the murder of the parents of his girlfriend in the State of Virginia in the United States. Under the extradition treaty entered into between the United Kingdom and the United States, the United States may request for the extradition of US offenders that may be hiding within the territories of the United Kingdom. However, since murder in punishable by death in the United States, the applicant sought protection under Article 3. According to decision of this case, the United Kingdom may refuse the extradition request “where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”40 In this case however, the Court did not really see the death penalty as the primary reason for granting protection41 to the applicant but rather on the possible inhuman effects of the death row phenomenon where the convicted felon will be incarcerated for years with the thought that he could eventually be subject to death penalty. Since the United States government could not give assurance to the government of the United Kingdom that the applicant will not be subjected to inhuman treatment42, the Court ruled that it would be unlawful to allow the United States to extradite the applicant. Will the treat for ill-treatment be enough bases for giving protection to Paul under Article 3? Apparently, the Court does not give immediately protection to a person based on the perceived risk of ill-treatment. There must a real risk of ill-treatment before the Court may grant protection under Article 3. Note that in the case of Vera et al v Sweden (1993)43, the case of Cruz Varas et al v Sweden (1991)44, and in the case of Vilvarajah et al v United Kingdom (1991)45, where the parties involved were refugees seeking asylum from political prosecution in their own countries, the court ordered the expulsion of the applicants because they were not able to present convincing evidence that they will be ill-treated once they return to their country.46 However, in the case of Soering, the Court noted that ill-“treatment is a possible future event” and it may be proven at the time that the applicant filed his petition for protection under Article 347. In applying the decisions of the above cases into the situation of Paul, we can surmise that where Paul can show that he is in substantial risk of being ill-treated when he is extradited to the United States, then he has the right to protection under Article 3. Note that since the Court has decided in the case of Soering that where the United States could not promise that the applicant will not be given ill-treatment, then the applicant shall have the right to remain under the jurisdiction of the United Kingdom. Furthermore, even when the extraditing country promises that it will give ill-treatment to the applicant, where there is a showing that the condition of the extraditing country does not guarantee that the applicant will be treated humanely48, then the applicant will still have the right to remain under the jurisdiction of the United Kingdom. Article 3 is a strong provision of the law. It does not permit any derogation not even during the time of emergency. In the case of Soering, the wordings of the Court shows us that when it comes to “inhuman and degrading treatment or punishment” the value of the argument based on general interest in now really given high priority49. References: 1. A v United Kingdom 25599/94 [1998] ECHR 85 (23 September 1998) http://www.worldlii.org/eu/cases/ECHR/1998/85.html 2. Ahmed v Austria 25964/94 [1996] ECHR 63 (17 December 1996) online available at http://www.worldlii.org/eu/cases/ECHR/1996/63.html last accessed February 28, 2007 3. Al-Adsani v. UK, [2001] ECHR 35763/97 4. Alleweldt R. Protection Against Expulsion Under Article 3 of the European Convention on Human Rights online available at www.ejil.org/journal/Vol4/No3/art3.pdf retrieved February 28,2007 5. Balogh v Hungary (2004) 47940/99 [2004] ECHR 361 (20 July 2004) http://www.worldlii.org/eu/cases/ECHR/2004/361.html 6. Chahal v United Kingdom (70/1995/576/662) 15 November 1996 online available at http://www.amnesty.org.nz/web/pages/home.nsf/dd5cab6801f1723585256474005327c8/a9f7fe83975c955fcc256e6f007d7b2d/$FILE/Chahal%20v%20United%20Kingdom.pdf retrieved 28 February 2007 7. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 8. Covenant on Civil and Political Rights (ICCPR) (1996) General Assembly Resolution 2200A (XXI) 9. Cruz Varas et al v Sweden (1991) Judgment 20 March 1991, Series A, Vol. 201 10. Erika de Wet, “The Prohibition of Torture as an International Norm of jus cogens and its Implications for National and Customary Law” (2004), European Journal of International Law, Vol. 15, No. 1, 97-121 11. Erikan Bulut v. Turkey - 51480/99 [2006] ECHR 186 (2 March 2006) http://www.worldlii.org/eu/cases/ECHR/2006/186.html 12. Geneva Convention of 28 July 1951 on the Status of Refugees, Article 33 (2) 13. Harvey & Mugnai (2002) The right to life: commentary on Article 2 http://www.childrenslegalcentre.com/shared_asp_files/uploadedfiles/5D3B5C10-1FEA-4C43-9941-4701F3294E56_FINALRighttoliferichtextformat.pdf 14. Hill v Chief Constable of West Yourkshire (1989) AC 53 15. Ireland v. the United Kingdom 5310/71 [1978] ECHR 1 (18 January 1978) 16. Joint Committee On Human Rights Fourth Report http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/26/2605.htm 17. Keenan v United Kingdom No. 27229/95 ECHR 2001- III 18. LCB v united Kingdom (1998)27 EHRR 212 19. Margaret Younger v United Kingdom No. 57420/00 7 January 2003 20. McCanne and Others v United Kingdom (1995) 21 EHRR 97 21. Osman V Ferguson and another (1993) 4 All ER 344 22. Osman v United Kingdom (2000) 29 EHRR 245 23. Ovey C. (2006) Prohibition of Refoulment: The meaning of Article 3 of the ECHR. Registry of the European Court of Human Rights online available at www.ecre.org/elenahr/art3.pdf 24. Selmouni v France (1999) 25803/94 [1999] ECHR 66 (28 July 1999) http://www.worldlii.org/eu/cases/ECHR/1999/66.html 25. Soering v United Kingdom - 14038/88 [1989] ECHR 14 (7 July 1989) http://www.worldlii.org/eu/cases/ECHR/1989/14.html 26. Tekin v. Turkey judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV 27. The Convention against torture and other cruel, inhuman and degrading treatment or Punishment Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 28. The European Convention on Human Rights ROME 4 November 1950 and its Five Protocols http://www.hri.org/docs/ECHR50.html 29. Tomasi v. France judgment of 27 August 1992, Series A no. 241-A 30. Vera et al v Sweden (1993) 4 EJIL (1993) 31. Vilvarajah et al v United Kingdom (1991) Judgment 30 October 1991 Series A, Vol. 215 32. W v United Kingdom (ECHR App. No. 9348/81, 32 DR 190 (1983) 33. X v Ireland App. No. 6040/73, 16 YB 388 at 392 (1973) Read More