The European Convention on Human Rights (ECHR)

The European Convention on Human Rights (ECHR) is an international treaty elaborated within the Council of Europe. It was signed in 1950’s in order “…to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration" and was finally signed on the 3rd of September 1953. The Convention was intended to provide a common standard across European Nations in respect of the protection of fundamental rights and freedoms. As of January 2000, most of the countries in the European Union have incorporated the Convention into their domestic law, enabling the judiciary of each country to take full account of its provisions when considering a grievance.

The European Convention Rights are usually construed in "negative" terms, meaning that they guarantee that the State should not interfere with protected rights and freedoms (eg. no interference from the side of the State should take place in rights like the freedom of expression, or the right to peaceful enjoyment of private property). However, in some circumstances the Convention imposes a duty on the State to take active steps to enable its citizens to enjoy the rights protected under the ECHR.These duties are called "positive obligations".

Accordingly, the ECHR created, with every article, a positive obligation to the United Kingdom, that being ensuring all these rights are protected. Two of the most important articles in the ECHR are Articles 2 and 3.

Article 2 refers to the right to life. It guarantees an “absolute right and derogations are not permitted even in difficult times of war or public emergency”. Though, there are some exceptions where a person can be deprived of his life but only in circumstances that are covered by law. Those exceptions have been defined in Article 2(2), and cover the use of necessary force in self-defence, to quell riots and aid an arrest. Article 2 begins with a main negative obligation on member States not to take life intentionally and furthermore a positive obligation to protect the right to life by law.

It imposes on member States duties, which at the moment of their entrance into the ECHR are obliged to fulfil and safeguard. The first positive obligation that Article 2 imposes on member States is to assist in an emergency (Hughes v UK (1986) 48 DR 258) and to warn, monitor and give information if there is a threat to life (LCB v UK [1998] TLR 381). Lord Diplock’s approach to this matter was that “the individual's right to life is ... the most fundamental provision of human rights ....", and according to the European Convention of Human Rights “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".

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The same principle in more details has been stated in the case of Jordan v. UK [2001] ECHR 24746/94, where the European Court of Human Rights emphasised the importance of Article 2. In this case it was decided that Article 2, “which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. 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 its safeguards practical and effective”.

The second positive obligation that ECHR imposes on member States in accordance to Article 2 is to protect fully its citizens from life-threatening situations. One major example in this area is the case of Osman v UK (1998) 29 EHRR 245.This case involved a tragic set of circumstances in which an obsessive former teacher of a 15 year old boy ended up wounding one of his pupils and killing his father. Even though the applicants informed the police months before the fatal attack that there was a danger of assault against the pupil, the police didn’t take the appropriate measures to protect the Osman family. The court stated that “…in certain well-defined circumstances there is a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual…”

The third positive obligation that the European Convention of Human Rights imposes on member States under Article 2 is to legislate in such a way as to make killing illegal (W v UK (1983) and to create measures which prevent actions like these by providing sufficient and well organised police and security forces. The public safety is a serious matter which Governments must take into consideration and with every measure to secure the right to life for every citizen in their country.

Finally the fourth obligation brought on every member State by Article2, is the investigation and prosecution of suspicious deaths and killings which happen by agents of their own country (Bilgin v. Turkey). Incidents like that must be investigated by independent authorities of the country such as the police (McCann, Farrell and Savage v UK (1995). Those authorities should be organised in a way to protect and minimize the threat to life, especially when quelling riots. In the case of Gulec v Turkey 1998, it was stated that “…the right to life had been infringed because there were no remedies or because existing remedies were ineffective, unavailable and inaccessible…”.Furthermore, “…the Court considers that in the circumstances of the case the force used to disperse the demonstrators, which caused the death of Ahmet Güleç, was not absolutely necessary within the meaning of Article 2” and for that reason there was an absolute breach of the right to life.

However, for a killing to be lawful it must be only the necessary and proportionate force in accordance with the achievement of the permitted purpose (Steward v UK 1984). Article 2 does not prohibit all killing. There are some circumstances where Article 2 is not being infringed, but this is not a matter we need to examine now.

Article 3 of the European Convention on Human Rights confers an absolute right and strictly prohibits any torture and inhuman or degrading treatment or punishment. “Torture” is defined as a “deliberate inhuman treatment causing very serious and cruel suffering”. Degrading treatment is defined as “any treatment that is humiliating or debasing, that grossly humiliates a person before others or drives him/ her to act in a way against his/ her conscience or will”. Moreover, it includes birching and racial discrimination.

Via Article 3 a positive obligation is imposed to each member State as to secure the right of a person not to be tortured and treated in any inhuman manner.

The main positive obligation which article 3 imposes on member states is that no human being is to be subject of any inhuman treatment which leads to serious and cruel suffering (Ireland v UK 1978). Therefore, every member State must secure the right of every person not to be tortured and to prevent such incidents from occurring in any occasion.

This ‘duty’ of the State preventing the torture of people may be found in two different ways. The first one is when an agent of a country acts in such a way that interferers with the right of a person not to be tortured, and at the same time, the State does not take any reasonable steps in preventing such interference from occurring (Cyprus v Turkey 1976).

The second way is when the State does not take positive steps to stop situations where a person is suffering from an infringement of his rights, conferred to him by Article 3, by third parties. In the case of Chahal v. the United Kingdom it was stated by the court that “…Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation”.

The same principle also follows the case of A v UK (1998) where, this case concerned the severe beating of a nine-year old boy by his stepfather. Although the European Court of Human Rights did not say that corporal punishment per se amounts to a violation of Article 3, it did state that children must have State protection, due to their vulnerability, that deters serious violations of their personal integrity. Hence, the court unanimously held that in this case Article 3 had been breached.

Especially when children are concerned, Article 3 imposes the only obligation to protect them from being tortured and humiliated. It requests from the member states in general to provide treatment for refugees and asylum for seeking children and young people, to offer a well planned children protection system, to protect them from bullying inside the educational system from adults and other children; to prohibit physical punishments and finally community reparations schemes that identify children who have offended.

Children are human beings and as such have the same human rights as anyone else. They are the most vulnerable members of society and it is society's duty to protect them and their rights.

Generally it is difficult to separate Article 3 into sections and under a ruling to illustrate the positive obligation that it imposes. It refers to every person who lives in a civilised society and tries to protect him, whether that is a child or an adult, a woman or a man. Though, questions arise as far as in which circumstances Article 3 can be in breach. Broadly viewed, one may assume it is in breach in occasions of Police custody and interrogation techniques as in the well-known case of Ireland v UK 1978 and Tomasi v France 1992 where it was stated that “…any use of physical force in respect of a person deprived of his liberty which is not made strictly necessary as a result of his own conduct violates human dignity and must therefore be regarded as a breach of the right guaranteed under Article 3 of the Convention”. Moreover, in situations which are connected with the Conditions of custody, the prison and psychiatric care. In the case of 2000 it was stated for the first time that, “the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance."

From the time ECHR became a reality; each State is expected to have a proper system of law which operates to prohibit crimes which violate ECHR rights and the public authorities to act in such a way to prevent violations which are foreseeable. Also, to have an effective criminal investigation and to be able to bring offenders into justice.

The European Convention of Human Rights changed the relationship between the individuals and the State. The ECHR imposed to member States positive obligations, they need to safeguard through the time, and increased the responsibility of each State to respect the rights and freedoms which the Convention declares. Article 2 and 3, which are of essential importance to the human beings are protected and being defended by each member State of the European Union. The requirements of Article 2 place explicit duties on the State in relation to the protection of human life. The obligation on the State is to protect life. In the same way Article 3 prohibits any inhuman and degrading treatment to every human being and places the State to safeguard this right. The central idea of the Convention was to bring finally a new era into the Human Rights and to protect those who suffer. The European Convention of Human Rights, it’s not a social or economical document, but more a traditional civil and political one, which is more essential for the process of a democratic society. The Convention is “a living instrument “which develops in accordance with the needs of society and makes it unlawful for a public authority, like a government department, local authority or the police, to breach the Convention rights. The ECHR is giving the opportunity to everybody to enforce and defend their rights in their own country without the need to go to the European Court of Justice in Strasbourg.

Furthermore, UK Courts now have to give UK law a meaning which fits in with the European Convention on Human Rights and if they do not do so, the Government has to decide whether to change the law or not.