Written Assignment
The European Convention on Human Rights is an international accord of European countries to protect fundamental human rights and freedoms. It was drafted in 1950 and entered into force in 1953 in all Council of Europe affiliate nations. A court was established by the Convention to decide cases of violations presented by individuals against states or any other public bodies. Judgements passed at the Court in Strasbourg are binding to the states concerned. This Convention is innovative as far as international law is concerned because it gives an individual an active role. The Convention has articles and procedures that alter the convention’s framework.
As an Act of Parliament, the Human Rights Act 1998 is makes it possible for one to seek remedy in case a right in the European Convention has been breached, negating the exigency to go the Court in Strasbourg (Wadham, 2011). The Act was introduced to the United Kingdom in an effort to reduce the delay and cost incurred in seeking redress at the Strasbourg court. In spite of the application of the Act to public bodies, it is increasingly applied to private law litigation because the courts, as public bodies, have an obligation to make judgements in compliance with the Convention Rights (Xenos, 2010). The utilization of the Act does not extend to Parliament as it is enacting its legislative duties.
The Convention is made up of three divisions with Section I containing the principal rights and freedoms. This section contains Articles 2 – 18. The subsequent section gives the setup of the Court and rules of its operation, while Section III comprises of the concluding provisions. The rights under the Convention are not similar, that is, there are three types of rights (Riches & Allen, 2011, p. 38):
Absolute rights: these are enshrined in Articles 2, 3 and 4. They cannot be restricted under any circumstances including tines of war, states of emergency or balanced with the interests of the public.
Limited rights: the exercise of these rights may be restricted during wartime or other state of general emergency as specified in the Article. These rights are contained in Articles 5 and 6.
Qualified rights: these rights may be overturned by the government in certain instances, where exercising that right infringes on the right of other individuals or groups. Majority of Convention rights fall into this category.
The following are the articles and protocols of the Convention (Cameron, 2011):
Respecting rights simply bind the participants to ensure the safety of the right within their jurisdiction, which means the state’s national territory and other far-off terrain including occupied ground.
The first paragraph states that all persons have a right to life and the second paragraph gives the exceptions in which the signatory states may contravene this right. It is limited to lawful acts of war and in instances when reasonable amounts of force are necessary in self-defense, in defending others, apprehending a suspect, or suppressing insurrections (Ovey, White & Jacobs, 2010, p. 56).
Inhuman and degrading treatment is prohibited in this article, which applies in cases of police violence or poor conditions in detention. This article of prohibition is in unconditional terms in spite of the actions of the victim.
Slavery, servitude or forced labor is prohibited in exemption to that performed as part of a prison sentence, military service, during a state of emergency or as pert of normal civic duties.
The right to liberty is only exempt in lawful arrest where the Convention makes a decree in support of the right to be conversant in apprehensible language and the right to expeditious judicial proceedings.
The right to a just trial process is protected in the Convention, which includes the right to presumption of innocence. This right also encompasses one’s right to a hearing that is arbitrated by an autonomous and unbiased panel within rational time.
Prohibition of the retrospective punishment of acts and omissions recently criminalized is incorporated by the legal principle “nullum crimen, nulla poena sine lege” (Hoffman & Rowe, 2010, p. 39).
The right to deference for an individual’s privacy in family life, home and correspondence is subject to restrictions in accordance with the law. The article gives an expansive elucidation and includes positive obligations of the government to become dynamic to achieve a successful gratification of those rights by an individual(s).
This right includes the right to change religious belief, manifest one’s beliefs in practice, worship and observance, subservient to restrictions in accordance with law. Expression of these freedoms should not infringe on the rights of others.
The right to expression has a range of restrictions imposed on it to safeguard public safety, prevent crime and disorder, protect others’ rights and reputations, the clout and neutrality of the courts and the benefit of national security.
The right of assembly and association are provided and protected by this article of the Convention.
The right of all individuals of marriageable maturity is protected by this article. This provision only extends to different-sex marriages as the Court wishes to preserve the legislative intent of the Convention despite invitations to apply in to same-sex marriages (Greer, 2006).
Violation of rights granted by the Convention provides a basis to seek redress before the relevant and effective authorities. Failure to obtain an effective remedy is a contravention of the Convention through which redress can be sought.
The article precludes the discrimination of persons based on their status and its broad nature has included status not implicitly stated in the Convention. Conversely, the article protects only those rights enshrined by the Convention. Protocol 12 extrapolates this prohibition.
This particular article allows contracting states to detract from certain rights in wartime of any other state of emergency subject to three substantive conditions and of sound procedure.
The states are allowed to confine the political actions of outsiders of a nation although the Court has regulations that European Union participant nations cannot be considered alien to any of the member states.
It provides that the rights attested by the Convention may not be used to abolish or limit the rights attested by the Convention.
The limitations of the rights may only be used for the purpose states and not outside those exceptions.
Convention protocols amend the framework and extend the rights protected by the convention system (Cameron, 2011). The protocols require ratification by signatory states before becoming applicable.
Section 3 enables the effect of the Act in the United Kingdom. It requires the courts to interpret the primary and subordinate legislation to be compatible with the ECHR. This interpretation includes precedent and potential legislation that prevents the Act from being impliedly repealed (Hoffman & Rowe, 2010, p. 59). The courts interpret legislation in three ways:
Reading in – where words are inserted into a statute, where there was none
Reading out – where some words of a statute are omitted
Reading down – where a specific meaning is derived from the statute to be in compliance (Hoffman & Rowe, 2010, p. 60-62)
Sections 4 and 10 are requirements of the Act that permit the courts to consign an issuance of incompatibility where they find it impossible to interpret the legislation to comply with the articles of the Convention. The courts have recourse in the case where interpretation may diverge with legislative intent and this resort is reserved for the superior courts (Starmer, 2000). This declaration is neither binding to the parties of the proceedings, nor can it invalidate legislation. It serves as a red flag for Parliament to provide legislation or an amendment that will comply with the Convention. Section 10 is responsible for the possibility of the amendments but a declaration of incompatibility does not affect the application of legislature – it does not invalidate it (Riches & Allen, 2011, p. 37-42).
References:
Cameron, I. (2011). An introduction to the European Convention on Human Rights, 6th ed. Uppsala, Iustus Förlag.
Greer, S. C. (2006). The European Convention on Human Rights: achievements, problems and prospects. Cambridge, Cambridge University Press.
Hoffman, D., & Rowe, J. (2010). Human rights in the UK: an introduction to the Human Rights Act 1998, 3rd ed. Harlow, Pearson Longman.
Ovey, C., White, R. C. A., & Jacobs, F. G. (2010). Jacobs, White and Ovey, the European convention on human rights, 5th ed. Oxford, Oxford University Press.
Riches, S., & Allen, V. (2011). Business law, 10th ed. Harlow, Pearson Longman.
Starmer, K. (2000). European human rights law: the Human Rights Act 1998 and the European Convention on Human Rights. London, Legal Action Group.
Wadham, J. (2011). Blackstone’s guide to the Human Rights Act 1998. Oxford, Oxford University Press.
Xenos, D. (2012). The positive obligations of the state under the European Convention of Human Rights. London, Routledge.
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