European Convention of Human Rights Essay Online for Free

HUMAN RIGHTS COURSEWORK 2014 Introduction This essay will discuss any violations of article 3, 6 & 9 of the European Convention of Human Rights and will also discuss any remedies available. Article 3 Article 3 of the European convention on Human Rights provides that no one shall be subject to torture or degrading or inhumane treatment. The prohibition of such treatment appears absolute, supported by the fact that the states obligation under article 3 cannot be derogated from in times of war or other emergencies threatening the life of the nation (Article 15 (2))[1]. Deportation of extradition can often subject individuals to a real risk of their fundamental freedoms beings infringed by the receiving state, raising the question whether the removing state can be held responsible for such violations. Deportation can also impact the person’s liberty and security of the person because they are usually in some form of detention before being deported or extradited (Chahal v United Kingdom (1997))[2]. Article 1 of the European Convention provides that every member state shall secure the rights and freedoms defined in Part One of the Convention to everyone within their jurisdiction. This raises the question of whether a member state can be responsible for actual or anticipated violations of human rights committed by other countries and in particular whether an individual who is facing removal can bring proceedings against the expelling state in respect of violations which are to take place at the hands of the state that the individual is being sent to. In Soering v United Kingdom (1989)[3], the European Court held that a decision of a member state to extradite a person might engage the responsibility of that state under the Convention where there were substantial grounds for believing that if extradited such a person would be faced with a real risk of being subjected to breaches of Article 3. In Soering the European Court accepted that the convention did not impose its standards on states that were not party to it. However, it did accept that there were good grounds for engaging the responsibility of a member state where it had expelled a person form its jurisdiction and where there are substantial grounds for believing that that person faces a real risk of being subjected to a violation of article 3. The Soering principle was affirmed in the later case of HLR v France[4], where the Court held that given the absolute character of the article 3 it could not rule out a possibility that a state may be responsible for the acts of private individuals. The European Court must address two fundamental questions: whether there is real risk that the applicant will in fact be subjected to the alleged treatment (Cruz Veras v Sweden (1991)[5] and whether such treatment is a violation of article 3. In these cases the Court must decide whether the applicant faced a real risk that he would be subject to conditions or treatment in violation of his Convention rights. In Chahal v United Kingdom[6] the European court held that despite assurances made by the Government of India, the applicant would face torture at the hands of Indian authorities. In contrast in Vilvarajah v United Kingdom (1991)[7] where the applicants were Sri Lankan Tamils who had entered the UK and unsuccessfully claimed political asylum because of the civil war in Sri Lanka, the European Court held that the general unsettled situation in Sri Lanka at the time of deportation did not establish that they were at greater risk than any other young Tamils who were also returning to Sri Lanka. This ruling could apply to Cecile’s case as the Court may consider her to be no more at risk than any other young woman in Gagistan as we are told that there have been recent attacks on many women attending university or pursuing a career. However, we are also told that the local security forces have been complicit or even responsible for the attacks on women therefore the Court will have to decide whether the Memorandum of Understanding signed by the Gagistan government is reliable as per Chahal v United Kingdom. Cecile’s case also bares resemblance to Chahal in the fact that her case has been widely reported which would make her a target for mistreatment, this would mean that if Cecile were to be deported it would lead to a violation of article 3. However the Court does offer the State some discretion in deciding whether it is able to rely on diplomatic assurance made by the receiving state. Article 6 Article 6(1) guarantees to everyone a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.This applies to a determination of civil rights and obligations and to a determination of any criminal charge. Article 6 imposes two different types of obligations on the state: a negative obligation not to punish anyone without a fair trial and a positive obligation to establish a court system which upholds this right for example, by providing interpreters or legal aid in criminal proceedings[8]. The Court has taken a liberal approach in interpreting “civil rights and obligations”, and in Ringeisen v Austria (1991)[9] it held that for the article to be engaged it was not necessary that both parties to the proceedings were private individuals, provided the proceedings were to determine the private rights and obligations of the parties. We are told that Cecile attempted to bring legal proceedings against the university due to her right to education being impeded, this would constitute a civil matter as it was brought before a student tribunal therefore it will engage the protection of Article 6. Cecile was refused legal aid due to her background in law however Article 6(3)(c) requires that a person accused of a criminal offence be afforded the right to defend him or herself, personally or with legal assistance, and that legal aid be provided whenever the interests of justice require. Legal representation is also implicit in the concept of a fair trial protected by article 6(1) and so applicable in civil cases as well as criminal cases. In Airey v Ireland (1979)[10] the European Court of Human Rights stated that Convention rights must be ‘practical and effective’ to safeguard an individual. It added that this was particularly important ‘in view of the prominent place held in a democratic society by the right to a fair trial. The Court found that while there is no general right to legal aid in civil cases, legal aid is required when legal representation is compulsory, because of the complexity or nature of the proceedings or the ability of an individual to represent him or herself. Whether the state is obliged to provide legal aid is dependent on the complexity of the case and the severity of the penalty at stake (Benham v UK (1996))[11]. Given Cecile’s legal background and the decision held in Airey, it may be concluded by the Court that Cecile is not entitled to legal aid as it may be deemed that the legal proceedings are not complex and Cecile may have the ability to defend herself. However, we are not told the complexity of the proceedings nor are we given any indication of Cecile’s level of legal knowledge therefore the Court may conclude that for Cecile’s right of access to the court to be effective she would require legal aid and thus the university would be in violation of Article 6. When interpreting the phrase “Criminal Charge” the Court appears to have adopted a flexible approach. In Engel v Netherlands (1976)[12], it held that in determining whether a charge fell within article 6, it should ask the following questions: first, whether the offence had been classified as criminal with the domestic legal system; secondly, the nature of the offence; and thirdly, the severity of punishment. In Ozturk v Germany (1984)[13], it was held that if the rule in question is directed towards all citizens and not just towards a group possessing special status and if it prescribes conduct of a certain kind and makes the resultant requirement subject to a sanction, that is punitive and therefore “criminal” for the purposes of article 6. In Cecile’s case Article 9 Article 9 of the European Convention provides that everyone has the right to freedom of thought, conscience. Article 9 is absolute and the application of article 9 (2) does not apply to the enjoyment of basic freedom of religion. The article also gives the individual the right to manifest his religion or belief in worship, teaching or practice and observance. This aspect is however subject to article 9(2), which allows for interferences on the condition that they are prescribed by law and necessary in a democratic society in the interests of public safety and inter alia the protection of the rights and freedoms of others. In a democratic society where several religions co-exist article 9(2) recognises that it may sometimes be necessary to place restrictions on the right to manifest ones religion in order to ensure that everyone’s beliefs are respected. Article 9 is complemented by Article 2 of the First Protocol to the Convention, which provides that no person shall be denied the right to education; however the right to education may sometimes have to bow to wider issues of public interest and the rights of others. Thus, in Sahin v Turkey[14] the Grand chamber held that although the exclusion of the applicant from University for wearing religious dress did engage the right to education, it ruled that the ban did not constitute an infringement of that right. In the Court’s view, the rules were foreseeable and proportionate and did not destroy the very essence of the applicant’s rights under that article; balancing as they did the rights of religious observance with the protection of secularism. Similarly in R (Begum) v Denbigh High School Governors[15] it was held that a schoolchild who had been refused entry to school because of her unwillingness to comply with a dress code had not been denied the right to education under Article 2 of the First Protocol. The disruption to her schooling had be caused by her unwillingness to comply with a rule that the school was entitled to adhere to, and of her failure to secure admission to another school that would allow her to wear her religious dress The decision in Begum was followed in R(X) v Headteachers and Governors of Y School[16] where it was claimed that the schools refusal to allow a Muslim girl to wear a niqab veil at school did not interfere with her Article 9 rights. The Court held that a rule that required certain behaviour at an institution did not constitute an infringement of a person’s right to manifest their religion simply because the rule did not conform to the individual’s religious beliefs. Article 9 did not provide a right to manifests ones religion at any time and place of ones choosing. In this case the school offered her an alternative school and a school was entitled to have its own policies. Thus, even if her Article 9 rights had been interfered with, the interference was justified within Article 9(2) as being in the interests of public safety or for the protection of the rights and freedoms of others.

[1] [2] [3] [4] [5] [6] [7] [8] Council of Europe [9] [10] [11] [12] [13] [14] [15] [16]

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