Before October 2000 there was only one institution dealing with complaints under the convention, and that was the European Convention of Human Rights.
Since October 2000 citizens in the UK can make a complaint under the convention in English courts. If the person is not satisfied with the decision, then they can apply to the ECHR.
Article 10. Everyone has the right to freedom of expression. This right includes freedom to hold opinions, receive and give out information without the public authority. This article shall not prevent states from requiring licence before broadcasting, television or enterprises.
This is different from the new approach contained in the HRA.
For example in Art. 10 of the convention (which is part of the HRA) the fundamental right of free expression is clearly stated and then clearly restricted.
Case Study
On January 9, 1995, Jake Baker, a sophomore at the University of Michigan (Ann Arbor), posted a sexually explicit story to the Usenet newsgroup alt.sex.stories, which is devoted to sexually explicit material. (Usenet newsgroups are akin to electronic bulletin board systems, except that material is not stored in any single place but copied to all participating computers.)
In the story, Baker describes the kidnapping, rape, torture, and murder of a young woman. Baker clearly labeled his story as containing "lots of sick stuff"; such material is not uncommon to the particular newsgroup where the story appeared. For the name of the woman in the story, Baker used the name of a woman in one of his classes. The woman did not know Baker and was not aware of the existence of the story until later notified by University officials.
In summary of this case study, the pupil who made the article and gave it to the newspaper, did use his own initiative and changed the name of the original person, to someone that he knew from one of his university classes. In this way he didn’t breach any acts of confidentiality, by disclosing the name of the person.
Article 3. Prohibition of Torture.
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 3 prohibits torture and inhuman or degrading treating or punishment. There are no exceptions or limitations on this right.
Case Study
Turkish scientists have become victims of Turkey's pervasive human rights violations. Turkish legislation is used against scientists who peacefully express their opinions and attempt to carry out their professional obligations.
The cases detailed in this section concern:
- representatives of the Human Rights Foundation of Turkey, including its physicians, for conducting human rights documentation and treating torture survivors;
- Seyfettin Kizilkan, a physician, persecuted for his outspoken promotion of democratic principles and for the treatment of individuals suspected of being PKK guerrillas;
- Haluk Gerger, a political scientist, imprisoned and fined for his opposition to the conflict in the Southeast and his advocacy of Kurdish rights; and
- Ismail Besikci, a sociologist, imprisoned early in his career as he attempted to document the historical and cultural identity of the Kurds.
These cases demonstrate how Turkey's long-standing conflict with its Kurdish minority has affected all sectors of society by branding all who oppose state ideology as terrorists and treating them as such under the law.
Article 7. No punishment without law.
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
Case Study
Donatien Kisangani Mukatamwina, a human rights activist working for the Uvira-based Solidarity - Exchange for Integrated Development (SEDI), was arrested by agents of the Rwandan-backed Rally for Congolese Democracy (RCD-Goma) on June 27, beaten, and detained for thirteen days without charge. He was arrested at the nearby Burundi border as he was travelling for a short visit there. A few days before his arrest, security agents of the RCD-Goma visited the SEDI office and questioned the executive secretary, Remi Ngabo, about the organization's work and its funders.
This case shows how the human rights of the man were breached because he wasn’t presented with a fair trial. This resulted in him being badly assaulted and having false accusation on him. At the end of the thirteen day detain, he was released without charge. This shows that he was wrongly accused and arrested on grounds that were not reasonable.
If there was a similar case in the UK, the citizen would have had the right to take police officers to court, and have a case brought upon them.
Human Rights Act 1998 Which has been described as the most important piece of constitutional legislation passed in the United Kingdom since the achievement of universal suffrage in 1918.
The Human Rights Act 1998 is a United Kingdom Act of Parliament which received Royal Assent on November 9, 1998, and came into force on October 1, 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg.
Taking a case to the court in Strasbourg takes a long time. In almost all cases you must first take legal action in this country using the Human Rights Act before you take a case to the court in Strasbourg. You can take a case to Strasbourg only if you fail to win your case here in the UK under the Human Rights Act.
Before the human rights act 1998 was introduced, people from the public would have to result in taking their issues with the law to the European court of justice. This was a very long process, time consuming and was very expensive.
The rights in the Convention are set out as separate ‘articles’. Since the Convention was written, new ‘protocols’ have been added. Most of these protocols deal with procedure, but some of them add new rights to the Convention.
Until the human rights act 1998 (HRA), English law had no formal modern declaration of fundamental human rights, but relied on the idea that a person is free to do whatever she or he wants that is not expressively forbidden.
It has been said that a person’s liberty is based on two propositions:
- That individual may say or do what they please, provided they do not break substantive law nor infringe the legal rights of others.
- That public authorities may do nothing but what they are authorised to do so by some rule of common law or statue.
If you think a public authority has breached your Convention rights (or that it is going to do so), you can take court proceedings against them. You have to show that you have been affected by what the public authority has done or is going to do. You can apply for a procedure called a ‘judicial review’ if: you want to challenge a decision made by a public authority or you want the court to order a public authority to do some thing or stop doing something. Under judicial review, a judge will look at your case and decide if the public authority has acted illegally. You have to start proceedings quickly, and at the latest within three months of the authority’s decision or action you are challenging.
A court can award you compensation if it finds that your Convention rights have been breached. But the court may choose not to award you compensation if it decides that simply finding that your rights were breached is enough. The compensation that people have received for breaches of their Convention rights has been quite low.
ARTICLE 10 FREEDOM OF EXPRESSION
1. Everyone has the right to freedom of expression. This right includes freedom to hold opinions, receive and give out information without the public authority. This article shall not prevent states from requiring licence before broadcasting, television or enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Before the Human Rights Act 1998 came into force, the right to freedom of expression was negative: you were free to express yourself, unless the law otherwise prevented you from doing so. With the incorporation of the European Convention on Human Rights into English and Welsh domestic law, the right to freedom of expression is now expressly guaranteed.
However, the right to freedom of expression in Article 10 is not absolute. Interferences with the right to freedom of expression may be permitted if they are prescribed by law. The legitimate purposes for which freedom of expression can be limited are:
- National security, territorial integrity or public safety.
- The prevention of disorder or crime.
- The protection of health or morals.
- The protection of the reputation or rights of others.
- The prevention of the disclosure of information received in confidence.
- For maintaining the authority and impartiality of the judiciary
Case Study
On January 9, 1995, Jake Baker, a sophomore at the University of Michigan (Ann Arbor), posted a sexually explicit story to the Usenet newsgroup alt.sex.stories, which is devoted to sexually explicit material. (Usenet newsgroups are akin to electronic bulletin board systems, except that material is not stored in any single place but copied to all participating computers.)
In the story, Baker describes the kidnapping, rape, torture, and murder of a young woman. Baker clearly labeled his story as containing "lots of sick stuff"; such material is not uncommon to the particular newsgroup where the story appeared. For the name of the woman in the story, Baker used the name of a woman in one of his classes. The woman did not know Baker and was not aware of the existence of the story until later notified by University officials.
In summary of this case study, the pupil who made the article and gave it to the newspaper, did use his own initiative and changed the name of the original person, to someone that he knew from one of his university classes. In this way he didn’t breach any acts of confidentiality, by disclosing the name of the person.
