بسم الله
 

Visitors: 398

European Convention on Human Rights-Part 02

  6/18/2012
Summary:European Convention on Human Rights-Part 02


[edit] Drafting

The Convention is drafted in broad terms, in a similar (albeit more modern) manner to the English Bill of Rights, the American Bill of Rights, the French Declaration of the Rights of Man or the first part of the German Basic law. Statements of principle are, from a legal point of view, not determinative and require extensive interpretation by courts to bring out meaning in particular factual situations.

[edit] Convention articles

As amended by Protocol 11, the Convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions.

Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the Court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high-level machinery for the operation of, respectively, the Commission and the Court, and Section V contained various concluding provisions.

Many of the Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death).

[edit] Article 1 - respecting rights

Main article: Article 1 of the European Convention on Human Rights

Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a Contracting State's own national territory; the obligation to secure Convention rights then also extends to foreign territory, such as occupied land in which the State exercises effective control.

In Loizidou v Turkey,[7] the European Court of Human Rights ruled that jurisdiction of member states to the convention extended to areas under that state's effective control as a result of military action.

[edit] Article 2 - life

Main article: Article 2 of the European Convention on Human Rights

Article 2 protects the right of every person to their life. The first paragraph of the article contains an exception for lawful executions, although this exception has largely been superseded by Protocols 6 and 13. Protocol 6 prohibits the imposition of the death penalty in peacetime, while Protocol 13 extends the prohibition to all circumstances. (For more on Protocols 6 and 13, see below.)

The second paragraph of Article 2 provides that death resulting from defending oneself or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary".

Signatory states to the Convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war.

The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann v. United Kingdom[8] it ruled that the exception contained in the second paragraph do not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.[9]

The Court has ruled that states have three main duties under Article 2:

  1. a duty to refrain from unlawful killing,
  2. a duty to investigate suspicious deaths and,
  3. in certain circumstances, a positive duty to prevent foreseeable loss of life.[10]

[edit] Article 3 - torture

Main article: Article 3 of the European Convention on Human Rights

Article 3 prohibits torture, and "inhuman or degrading treatment or punishment". There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention.

The Court have emphasised the fundamental nature of Article 3 in holding that the prohibition is made in "absolute terms ... irrespective of a victim's conduct."[11] The Court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state.[12]

Initially the Court took a restrictive view on what consisted of torture, preferring to find that states had inflicted inhuman and degrading treatment. Thus the court held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture.[13] In fact the Court only found a state guilty of torture in 1996 in the case of a detainee who was suspended by his arms whilst his hands were tied behind his back.[14] Since then the Court has appeared to be more open to finding states guilty of torture and has even ruled that since the Convention is a "living instrument", treatment which it had previously characterised as inhuman or degrading treatment might in future be regarded as torture.[15]


From Wikipedia, the free encyclopedia

Jump to: navigationsearch


Next






You must be a member to send comments Register