The European Convention on Human Rights Flashcards
The Structure and aim of the council of Europe- The Aim of the Council
The aim of the Council of Europe was, and remains, ‘to achieve a greater unity between its Member for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress, and this aim was to be pursued ‘through the organs of the Council by discussion of questions of scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.’ The current political mandate of the Council of Europe was established at a summit which took place in Warsaw in 2005. The agenda is ‘to protect human rights, pluralist democracy, and the rule of law; to promote awareness and encourage the development of Europe’s cultural identity and diversity; to find common solutions to challenges facing European society: such as discrimination against minorities, xenophobia, intolerance, terrorism, trafficking in human beings, organised crime and corruption, cybercrime and violence against children. Moreover, to also consolidate democratic stability in Europe by backing political legislative and constitutional reform.
Explain the three Organs which the Council operates through?
The Council operates through three organs. The decision-making body is the Committee of Ministers composed of the foreign ministers of the Contracting Parties. The Parliamentary Assembly, composed of 318 representatives drawn from the national parliaments, is the deliberative body whose debates can lead to recommendations made to the Committee of Ministers. The third organ was added in 1994 and is the Congress of Local and Regional Authorities of Europe, which has consultative functions and is composed of representatives of local and regional authorities. The work of these organs is supported by a Secretariat, headed by a Secretary-General appointed by the Parliamentary Assembly on the recommendation of the Committee of Ministers.
The Right To Life- Article2
Article 2(2) of the Human Rights to life provides that “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.” Article 2 (2) states that “Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained and (c) in action lawfully taken for the purpose of quelling a riot or insurrection
The Right To Life- The Strasbourg Court & McCann Case
The right to life provides that the taking of a life should be refrained unless this occurs in the narrowly prescribed circumstances recognised in Article 2(2). The Strasbourg Court observed in the McCann case that: as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention, as such, its provisions must be strictly construed. In the case ‘Osman v United Kingdom’, Osman appealed to the European Court of Human Rights contending that the blanket immunity from actions provided to the police by the House of Lords in Hill v CC Yorkshire was in breach of Art 6 of the European Convention of Human Rights. Art 6 provides that in determination of civil rights every person is entitled to a hearing by an independent and impartial tribunal established by law. The Court found there had been a violation of Art 6 .The blanket immunity provided by Hill v. CC Yorkshire constituted a disproportionate restriction on the applicant’s right of access to a court or tribunal. The substantive merits of the case could not be argued before a judge. It should always be open for claimants to put their case before a judge and a blanket rule which interfered with this right was not acceptable. The restrictive requirements of proximity were adequate to protect the police from the majority of claims.
The Right To Life: LCB vs. United Kingdom
Regarding the case of ‘LCB vs. United Kingdom’, the UK conducted a series of nuclear tests on Christmas Island in 1958 and 1959, where the applicant’s father served as a service member at the time. The Service members were ordered to line up, face away from the explosion, and close and cover their eyes. The applicant’s daughter was born in 1970 with leukaemia, a form of cancer.
In December 1992 the applicant became aware of the contents of a report prepared by the British Nuclear Tests Veterans’ Association, indicating a high incidence of cancers including leukaemia in the children of Christmas Island Veterans.
Procedure: The case was referred to the Court by European Commission on Human Rights, on 22nd of January 1997. It was lodged with the Commission under article 25. The Commission’s request referred to articles 44 and 48, and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court. The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent state of its obligations under article 2 and 3 of the Convention. The questions facing the Court, was whether or not there had been a breach of the Conventions articles 2, 3, 8 and 13, in particular whether the applicants leukaemia is likely to originate from her fathers exposure to radioactivity, and whether the State of Great Britain can be held responsible for alleged breaches which occurred prior to 14th of January 1966, when the UK recognised the competence of the Commission to receive individual petitions, and the jurisdiction of the court.
The Court recalled that these complaints were not raised before the Commission. It therefore had no jurisdiction to consider them. The Court observed that, in principles, it would be open to it to consider in relation to Article 8, the applicant’s complaint regarding the State’s failure to its own motion to advise her parents and monitor her health prior to her diagnosis with leukaemia. However, having examined this question from the standpoint of article 2, it does not consider it any relevant separate issue could arise under article 8, and it therefore finds it unnecessary to examine further this complaint.
In relations to the applicant’s complaint under Article 2, the right to life, the Court observed that, in accordance with the evidence presented before it, there were no link between the exposure of a father to radiation and leukaemia in a child subsequently conceived. Therefore there were no reason to assume that the United Kingdom could, or should, have taken action in respect of the applicant.
The applicant’s complaint under Article 3 was not found to have been violated by the United Kingdom. The Court reasoned by using the same arguments as it did with the complaint under Article 2. The Court ruled to have no jurisdiction to address Articles 8 and 13. The Court found it unnecessary to consider Article 8 since it already had considered Article 2. The Court didn’t see any relevant separate issues under Article 8 that needed to be addressed. The complaint under Article 13 was not brought before the Commission and subsequently the Court has no jurisdiction to address it. The scope of the jurisdiction of the Court is determined by the Commission’s
decision on admissibility, and has no power to entertain new and separate complaints not raised before the Commission.
Therefore, the Court held that it had no jurisdiction to consider complaints from the applicant that were not mentioned before the Commission since the Court has no power to hear new and separate complaints. United Kingdom has not violated article 2 and article 3 as alleged by the applicant. Furthermore, the Court has no jurisdiction to address violations of articles 8 and 13.
A judgment by the European Court of Human Rights is legally binding and thus valid.
The Right To Life: THE DEATH PENALTY AND THE EXTRATERRITORIAL APPLICATION OF THE RIGHT TO LIFE
Article 6 of the Convention abolishes the death penalty in peacetime and Protocol 13 abolishes it in all circumstances. Forty-six Contracting Parties have ratified Protocol 6 and 43 Contracting Parties have ratified Protocol 13. It is the policy of the Council of Europe to require all new Contracting Parties to undertake to abolish capital punishment in peacetime as a condition of their admission into the organisation. In the case of ‘Ocalan’, the Grand Chamber first Speculated whether the fact that almost all the Contracting States at the time had ratified Protocol 6 and 43 out of the 44 of them had abolished capital punishment, could be taken as signalling their agreement to modify the second sentence of Article 2(1). In that case it found it unnecessary finally to resolve the point after an unfair trial. However, in Al-Saadoon and Mufdhi v United Kingdom a Chamber of the Court suggested that the second sentence of Article 2 had been amended by state practice: ‘All but two of the Member States have now signed Protocol 13 and all but three of the States which have signed have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of the Article 1 continues ti txt as a bar to its interpreting the words ‘inhuman or degrading treatment or punishment’ in Article 3 as including the death penalty. In this case, the Court also declared that, for States bound by the absolute prohibition of the death penalty in all circumstances in Protocol 13, that principle can be regarded as enshrining one the basic values of the democratic societies making up the Council of Europe and therefore, its probations will be strictly construed. Despite the removal of the death penalty from the European landscape, it remains a potentially live issue before the Court due to possibility of extradition to States outside Europe where the penalty is retained. If a Contracting Party which has ratified Protocol 6 wishes ti extradite an accused to a country where he or she would face judicial execution there will be a risk of a violation of the Protocol, and it may be necessary for the sending applied before the extradition can go ahead.
The Right To Life: Prohibition of intentional killing by the state- ‘No one shall be deprived of his life intentionally. McCann Case
The first and most obvious element of a Contracting Party’s obligation under Article 2 is to refrain,through its agents, from deliberate, unjustified killing. This aspect was considered by the Strasbourg Court in the McCann case, which was brought by the relatives of three Irish Republican terrorists who had been killed by members of the British security forces in Gibraltar. It was not disputed that the soldiers had intended to shoot and kill the terrorists; according to the briefing which the soldiers had bee given, the terrorists had planted a car bomb in a crowded areas and were likely to have been carrying a concealed detonator at the time of the shooting. The respondent State claimed that the facts fell within the ambit of paragraph 2(a) of Article 2: killings resulting from the use of force which was no more than absolutely necessary to defend a number of innocent bystanders from unlawful violence. The Court held that the use had to be strictly proportionate to the achievement of one of the aims set out in sub-paragraphs 2(a) to (c). Given this strict test, it was not sufficient for the person administering the force honestly to believe that his or her actions were valid; this belief had also to be based on ‘good reasons’ in the light of the information available at the relevant time. The Court accepted that the soldiers were not to blame, and that they honestly and reasonably believed that it was necessary to shoot the suspects to prevent them from detonating a bomb. However, the Court widened the field of scrutiny to look at the security operation in its entirety. The identities of the three members of terrorists squad were known to the British authorities, and it would have been possible to arrest them as they entered Gibraltar, before there was any risk of their having set a car bomb. Looking at all the facts, therefore, the Court concluded that it has not been necessary to use lethal force and that the killings amounted to a violation of Article 2.
The Right To Life: Prohibition of intentional killing by the state- The planning of an operation, Finogenov and others v Russia & Gul v Turkey
The planning of an operation was crucial in the case Finogenov and others v Russia, concerning events during the hostage crisis in Moscow on 23-26th of October 2002 in which a group of terrorists belonging to the Chenchen separatist movement, armed with machine-guns and explosives, took hostages in the Dubrovka theatre. The applicants alleged that the Russian authorities had applied excessive force, which had resulted in the death of their relatives who were being held hostage by the the terrorists. The applicants further claimed that the authorities had failed to plan and conduct the rescue operation in such a way as to minimise the risks for the hostages. The Court chose to apply different degrees of scrutiny to different aspects of the situation. As the hostage-taking itself came as a surprise for the authorities, the military preparations for the storming had to be made quickly and in secrecy and the authorities were not in control of the situation inside the building. In such a situation the Court accepted that ‘difficult and agonising decisions had to be made by the domestic authorities and was prepared to grant them a margin of appreciation, at least in so far as the military and technical aspects of the situation are concerned, even if now, with hindsight, some of the decisions taken by the authorities may appear open to doubt. In contrast, the subsequent phases of the operation , especially when no serious time constraints existed and the authorities were in control of the situation, required closer scrutiny by the Court. The Court concluded that there existed a real, serious, and immediate risk of mass human losses and that therefore the authorities’ decision to storm the building could be justified under Article 2(2). While the Court is tolerant of honest mistakes, based on good reasons, as to the level of face absolutely necessary in particular circumstances, it is far less likely that an honest mistake as to the very existence of a threat will be regarded as justifying a killing by the State agents. This can be demonstrated by Gul v Turkey, where the police officers opened fire at an unknown target behind a closed door in a residential apartment. While it was possible that the officers had mistaken the sound of the door bolt being drawn back for the sound of the occupant of the flat opening fire at them, their reaction was held to be grossly disproportionate. The Court unanimously found a violation of Article 2 in that case and distinguished it from the earlier case of Andronicou and Constantinou v Cyprus.
The Right To Life: Death in custody and forced disappearance
The protection afforded by Article 2 would be of no value if a State could avoid international sanction by concealing the evidence of killings caused by its agents. Where an individual is known to have been taken into custody and subsequently disappears or is found dead, therefore, it is logical that a heavy burden should fall on the State to establish an innocent explanation. According to amnesty International, following an analysis of the relevant international instruments, the crime of disappearances has the following elements: (1) a deprivation of liberty, (2) effected by government agents or with their consent, followed by (3) an absence of information or refusal to acknowledge the deprivation of liberty or refusal to disclose the fate or whereabouts of the person, (4) thereby placing such persons outside the protection of the law. The Inter-American Court of Human Rights has held that the phenomenon of disappearances is a complex form of human rights violation, including breaches of the right to life and the right not to be subjected to ill-treatment, that must be understood and confronted in an integral fashion. The gravity of the violations of rights attendant on a disappearance has led the United Nations Human Rights Committee to conclude in relation to Article 6 of the International Covenant on Civil and Political Rights that State Parties should take specific and effective measures to prevent them occurring an thoroughly to investigate any case of a missing or disappeared person which may involve a violation of the right to life. It is arguable that the Strasbourg organs were disappointingly timid in their treatment of the first case of a disappearance to come before them. The Commission and Court both accepted that it had been provoked beyond reasonable doubt that the applicant’s son has last been seen some four and a half years earlier surrounded by soldiers during a security operation in his village in south-east Turkey. The Court moreover, conceded that in these circumstances the applicant’s fears that her son might have died in unacknowledged custody and the hands of his captors could not be said to be without foundation. Nonetheless, it declined to find a breach of Article 2 in the absence of concrete evidence that the young man has been killed by the authorities. Instead, it opted for a particularly grace violation of the right to liberty and security of person under Article 5 raising serious concerns about the welfare of the applicant’s son.
The Right To Life: Death in custody and forced disappearance- Salmon (2002)
& Mizigarova v Slovakia (2010)
The Strasbourg Court acknowledged the risk inherent in relying for proof almost entirely on a photocopy. However, it held that the respondent State’s failure, without satisfactory explanation, to disclose evidence which it claimed to hold gave rise to an inference that the photocopied report was genuine, and that the applicant’s son had been arrested. The Court next considered whether, in the absence of a body, any issue could arise under Article 2, concluding that this would depend on all the facts of the case, in particular whether there was sufficient circumstantial evidence pointing towards death in custody. In this respect the length of time which had elapsed since the person had been placed in detention, although not decisive, was highly relevant, since the person had been placed in without any news, the greater was the likelihood that he had died. Given that more than six and a half years had gone by since the applicant’s son had been arrested and that the respondent State was unable to provide any explanation of what happened to him, the Court found a violation of Article2. The same principle applies where there is clear evidence of a death in custody. In the Salman case, the applicant’s husbands was arrested at midnight on on the suspicion of aiding and abetting Kurdish terrorists. Twenty-four hours later he was taken to the State Hospital where he was declared dead on arrival. The hospital autopsy disclosed various marks and bruises, including a broken sternum, but did not determine the cause of death. The case was referred to the Instabul Forensic Institute which concluded that the applicant’s husbands had died of a heart attack brought on by the effect of his arrest on a pre-existing heart condition. The applicant claimed that photographer of the corpse taken by the family showed that her husband had been beaten on the soles of his feet. Ten police adducers were acquitted of homicide by the Adana Aggravated Felony Court on the basis that there was inadequate evidence of any use of torture. The Strasbourg Court observed the Contracting Party to provide a satisfactory account was particularly stringent. Since the respondent State was unable to explain how the applicant’s husband had come by his injuries and since the evidence did not support the contention that he had died of a heart attack caused by the stress of arrest, the Court found the respondent State to have violated Article 2. In the case ‘Mizigarova v Slovakia 2010, the applicant’s husband died after receiving a fatal gunshot wound while in police custody. The parties disputed whether this was fired by he armed police officer who was interrogating the suspect or was the result of suicide, but the Court took the new that whichever possibility was correct, the State had failed in its Article 2 obligations.
The Right To Life: Positive Obligation To Protect Life- States have to take positive steps to safeguard the lives of those in its jurisdiction
In the LCB case, the Strasbourg Court recognised for the first time that the first sentence of Article 2(1) enjoins a Contracting Party not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within their jurisdiction. This was an important statement of principle, despite the fact that the applicant was unable to prove either that her father’s service in the Royal Air Force during the United Kingdom ‘s nuclear tests on Christmas Island in 1957 to 1958 had been the cause of her childhood leukaemia or that, has the respondent State provided her family with more information about the tests and the possible health consequences, earlier medical intervention would have mitigated her illness. More recent cases have demonstrated that the States duty to safeguard life is extensive. In the ‘Oneryildiz’ case, the Grand Chamber went so far as to hold (that this obligation to take appropriate steps to safeguard the lives of those within the States jurisdiction) must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake. The obligation entails, at its most basic, a duty to put in place a legislative and administrative framework designed to provide effective deterrence against unlawful killing. Thus, Turkey was a fault in cases involving the murder of a journalist working for a Kurdish separatist newspaper and doctor known to have treated members of the Kurdish terrorist organisation, the PKK. In both cases the applicants alleged that their brothers had been assassinated by members of the Sate security forces, but this could not be proved. The Strasbourg Court did ,however, find that the authorities were aware that journalists, doctors and others associated with the PKK and Kurdish separatism had been the object of a campaign of serious attacks and threats, possibly emanating from or carried out with the acquiescence of the security forces. Although there was a framework of law in place aimed at the protection of life at the relevant time implementation of the criminal justice system in south-east Turkey was seriously undermined by various Emergency Rule measures. This situation fostered a dangerous lack of accountability among members of the security forces and removed the protection which the applicant’s brothers should have received by law.
The Right To Life: Positive Obligation To Protect Life- Osman v UK (1998)
In the case Osman v UK 1998, the applicant’s family had become the target of a dangerous stalker, who eventually broke into their home and shot and killed their husband and father. Bearing in mind the difficulties in policing modern society, the unpredictability of human conduct, and the need for the police to act within the confines imposed on them by, inter alia, Article 5s 5 and 8 of the Convention, the Strasbourg Court defined this particular aspect of the duty to protect life rather narrowly. It considered that the authorities could be said to be in breach of Article 2 in this context only if it could be established that they knew or ought to have known at the relevant time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party, and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. In the instant case, the applicants were not able to point to any decisive stage in the sequence of events leading to the shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk, and the police could not be criticised for attaching weight to the presumption of innocence and the rights of the stalker in the absences of any concrete evidence against him. By contrast, Opuz v Turkey, a violation of Article 2’s positive obligation was identified. In this case, the applicant alleged that the Turkish authorities had failed to protect her and her mother from domestic violence which had resulted in the death of her mother. The victim’s situations were known to the authorities and the mother had submitted a petition to the Chief Public Prosecutor’s Office, stating that her life was in immediate danger and requesting the police to take action. The authorities’ only response was to take statements from the perpetrator about the allegations. Two weeks later he killed the applicant’s mother. The Court found that the authorities could have foreseen a lethal attack and this their responsibility to take reasonable steps to mitigate the harm was engaged. The Government claimed that any further interference by the authorities would have amounted to a breach of the victim’s Article 8 rights The Court was very dismissive of this argument, reiterating that sometimes interference with private or family life of individuals might be necessary in order to protect the health and rights of others or to prevent commission of criminal acts. In particular, the Court underlined that in domestic violence cases perpetrators rights cannot supersede victims human rights to life and to physical and mental integrity. The Court also reiterated that once the situation had been brought to their attention, the national authorities cannot rely on the victim’s attitude foe their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim. The Turkish authorities were donut to have failed in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2.
The Right To Life: Positive Obligation To Protect Life- Prisoners are in a vulnerable position and authorities are under a duty to protect them, Keenan v UK 2001
In the Keenan v UK 2001 case, the risk to life came from the victim himself, a young man with mental health problems who committed suicide in prison. The Strasbourg Court emphasised that prisoners are in a vulnerable position and that the authorities are under a duty to protect them, and noted that this necessity is reflected in English law, where inquests are automatically half following all deaths in custody. In Keenan’s case, the prison administration had acted reasonably to protect him from himself. They knew that he was prone to psychotic flare-ups, and during the periods when he appeared to be suicidal, they had placed him on the hospital wing and checked him every fifteen minutes .On the days when he killed himself, he had been returned to an ordinary cell because he did not appear to be in any particular trouble. In Reynolds v United Kingdom, the Court accepted there was an arguable claim under Article 2 where the applicant’s son who had a history of schizophrenia, committed suicide after being assessed as a law suicide risk and transferred to a sixth floor psychiatric unit from where he broke a window and fell to his death. The Court accepted that there was arguable claim that an operational duty had arisen to take reasonable steps to protect the applicant’s son from a real and immediate risk of suicide and that, that duty was not fulfilled. Domestic case-law at the time in the UK drew a distinction between detained and voluntary mental patients, since removed by a Supreme Court decision. The Court’s finding of a violation in this case casts doubts upon the acceptability of such a distinction and yet its removal carries a State duty to prevent suicide beyond the ambit of persons within the control of the State and arguably risks extending a duty to prevent suicide to an arena in which it may conflict with duties under Article 8 to respect autonomous decisions about death.
The Right To Life: The Duty To Investigate Suspicious Deaths
In the McCann case, the Strasbourg Court observed that any general legal prohibition of arbitrary killing by agents of the State would be ineffective in practice in the absence of a procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protects the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State. In the Ramshai case, the Grand Chamber recapitulated the requirements. The requirement for an effective investigation has formed a useful part of Strasbourg Court’s artillery, particularly in cases where the evidence is not sufficiently clear to justify a finding of deliberate killing by the State. In the Kata case, for example, the applicant’s brother was found lying dead and riddled with bullets in a field near his village in south-east Turkey. The respondent State claimed that he was a terrorist who had been killed during a battle with security forces. Witnesses from the village allegedly said that he was an ordinary, unarmed farmer who had been shot by the soldiers without justification or provocation. Only a rudimentary post-mortem had been performed before the body was handed over for burial to the villagers, and the public prosecutor who subsequently took over the inquiry appeared to have accepted without question the military’s version of events, omitting to take statements from witnesses or collect any forensic evidence. In these circumstances the Commission and Court, examining the case some years later and hampered y the reluctance of witnesses to come forward,were unable to establish clearly what had taken place or to find for the applicant on his complaint that his brother had been deliberately killed by the soldiers. The Strasbourg Court did, however, find a breach of Article 2 on the basis that the domestic investigation into the death had been inadequate. The Court has explained that the essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. however, whatever mode is employed, the authorities must act of their own motion, once the matter had come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or total responsibility for the conduct of any investigation procedures. The procedural aspect of Article 2 can, in this way, be distinguished from the obligation under Article 13 to provide an effective remedy. Article 2 appears to be most concerned with an official investigation leading to the establishment of criminal liability, whereas the focus of Article 13 is the provision of a civil remedy to the victim or his or her relatives, to enable them to seek compensation.
The Right To Life: The Duty To Investigate Suspicious Deaths, Four Requirements
In a number of cases, the Court has concluded that the combination of these factors has rendered the criminal investigations ineffective. In Aslakhanova and others v Russia, the Court held that the situation must be characterised as resulting from systemic problems at the national level, for which there is no effective domestic remedy. It affects core human righthand requires the prompt implementation of comprehensive and complex measures. The Court therefore provided some guidance on measures to be taken, as a matter of urgency, by the Russian authorities to address the issue of the systemic failure to investigate disappearances in the Northern Caucasus. For an investigation into alleged unlawful killing by the State agents to be effective and to comply with Article 2, it must be carried out by someone who is fully independent of those implicated in the events on the basis of objective evidence. The investigation must be capable of leading to a determination of whether the force used in such cases was justified in the circumstances and to the identification and punishment of those responsible. This entails that the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including eyewitness testimony, forensic evidence and were appropriate , an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. In Mikayil Mammadov v Azerbaijan, the investigation into a suicide was undermined by the authorities’ failure to question the suicide victim before her death in hospital even though they were aware that she had suffered life-threatening injuries which made her survival uncertain. The Court took the view that in these circumstances, the authorities were obliged to act in a promo and diligent manner in order to try to brain evidence which would no longer be available after her death and had failed to do this. The investigation must be carried to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts. For the same reasons, the investigation must, to a certain degree, be open to the public scrutiny, and the relatives of the deceased must aways have the opportunity to become involved.
The Right To Life: EUTHANASIA AND THE QUALITY OF LIFE, Pretty v UK 2002
The right to life in Article 2 does not include the ‘right to die’. In the case Pretty v UK 2002, the applicant suffered from an untreatable motor-neurone disease. Her muscles were becoming progressively weaker, so that at the time of the application she was paralysed from the neck down, had virtually no decipherable speech, and had to be fed through a tube, although her intellect and capacity to make decisions were unimpaired. Her life expectancy was very poor, and the final stages of the disease were expected to be distressing and undignified. She wished her husband to be permitted o asset her suicIde without risk of prosecution. The Strasbourg Court observed that the consistent emphasis in its case-law had been the obligation of the Sate to protect life. Article 2 was unconcerned with issues to do with the quality of life or self-determination. The four Member States of the Council of Europe which allow medical practitioners to prescribe lethal drugs, subject to specific safeguards, are Switzerland, Belgium, the Netherlands and Luxembourg. However, there have not, to date, been any admissible cases under Article 2 brought by a friend or relative complaining about euthanasia carried out by a doctor or authorised by a Contracting Party, although there have been cases brought under Article 8 challenging a State’s failure to permit assisted dying. The application in the pretty case argued that a failure to acknowledge a right to die under the Convention would case such countries which do permit assisted suicide in breach to the Convention. The Strasbourg Court refused to consider this proposition in the abstract, and remarked that, even if circumstances prevailing in a particular country which permitted assisted were found to infringe Article 2 of the Convention, that would not asset the applicant in establishing the very different proposition; that the United Kingdom would be in breach of its own obligations under Article 22 if it idd not allow assisted suicide.
Prohibition of torture: Article 3, No one shall be subjected to torture or to inhuman or degrading treatment or punishment
Article 3 states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of was or public emergency. The Strasbourg Court has been consistent in its maintenance of the absolute nature concerning the threat from terrorism. This is well illustrated by the ‘Chahal’ case. The United Kingdom wished to deport Chahal to India, arguing that he has been involved in terrorist activities and posed a risk to national security of the United Kingdom. The Strasbourg Court said ‘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 violent. 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.’ Despite attempts to persuade the Strasbourg Court that the interests of the community as a whole may be taken into account in deciding whether to remove a person whose counted presence might be seen to be a threat to the host country, the Grand Chamber in the ‘Saadi’ case has re-affirmed the absolute nature of the prohibition ‘as the prohibition to trout and inhuman and degrading treatment or punishment is absolute, irrespective of the victim’s conduct, the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3’. The Strasbourg Court described the argument based on the balancing of the risk of harm if the person is removed against their dangerousness to the host State as a ‘misconceived’. Nor was there any merit in the argument that the risk of ill-treatment should be stronger in those cases where the continued presence of the person in the host State presented a security risk; this was not compatible with the absolute nature of Article 3. But the assessment of the risk of ill-treatment in the country of destination will always be a rigorous one. The absolute nature of Article 3 was again underlined in the Gafgen case. Gafgen kidnapped the son of a German banker for a ransom. He was arrested, and unknown to the police, he had already killed the boy. The police officers in charge of the interrogation believed the boy’s life was in grave danger and made threats of violence against Gargen in order to extract information about where the boy was held. Gafgen told the police where the boy was and the police retrieved the boy’s body along with other evidence. Gafgen was convicted of the boy’s murder. The police officers were found guilty under German law of using coercion. They received a small fine. The Strasbourg Court recognised that the police acted in order to save the boy’s life but noted ‘it is necessary
Prohibition of Torture: Article 3, No one shall be subjected to torture or to inhuman or degrading treatment or punishment
Article 3 states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of was or public emergency. The Strasbourg Court has been consistent in its maintenance of the absolute nature concerning the threat from terrorism. This is well illustrated by the ‘Chahal’ case. The United Kingdom wished to deport Chahal to India, arguing that he has been involved in terrorist activities and posed a risk to national security of the United Kingdom. The Strasbourg Court said ‘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 violent. 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.’ Despite attempts to persuade the Strasbourg Court that the interests of the community as a whole may be taken into account in deciding whether to remove a person whose counted presence might be seen to be a threat to the host country, the Grand Chamber in the ‘Saadi’ case has re-affirmed the absolute nature of the prohibition ‘as the prohibition to trout and inhuman and degrading treatment or punishment is absolute, irrespective of the victim’s conduct, the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3’. The Strasbourg Court described the argument based on the balancing of the risk of harm if the person is removed against their dangerousness to the host State as a ‘misconceived’. Nor was there any merit in the argument that the risk of ill-treatment should be stronger in those cases where the continued presence of the person in the host State presented a security risk; this was not compatible with the absolute nature of Article 3. But the assessment of the risk of ill-treatment in the country of destination will always be a rigorous one. The absolute nature of Article 3 was again underlined in the Gafgen case. Gafgen kidnapped the son of a German banker for a ransom. He was arrested, and unknown to the police, he had already killed the boy. The police officers in charge of the interrogation believed the boy’s life was in grave danger and made threats of violence against Gargen in order to extract information about where the boy was held. Gafgen told the police where the boy was and the police retrieved the boy’s body along with other evidence. Gafgen was convicted of the boy’s murder. The police officers were found guilty under German law of using coercion. They received a small fine. The Strasbourg Court recognised that the police acted in order to save the boy’s life but noted ‘it is necessary to underline that, having regard to the provision of Article 3 and to its long-established case law, the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities.
Prohibition of Torture: Defining Torture, UN 1975 Declaration
The United Nations General Assembly’s definition of torture in the 1975 Declaration states that ‘torture constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment.’ The UN Convention differentiates between torture and other forms of ill-treatment. Article 6 covers inhuman and degrading treatment not amounting to torture, where such acts are committed or instigated with the consent or acquiescence of a public official or a person acting in ann official capacity. This distinction has important consequences under the UN Convention as prohibitions of State action and the legal obligations placed on States are only applicable to torture under Article 1. In contrast , Article 3 of the European Convention on human Rights clearly prohibits all three forms of ill-treatment in the Article. However, a finding of torture may be relevant to the assessment of damages under Article 41 of the Convention as well as impacting on the admissibility of evidence under Article 6.
Prohibition of Torture: Distinction between torture and inhuman treatment, Ireland v United Kingdom 1978
The distinction between torture and inhuman treatment is frequently one of the degree. In the case ‘Ireland v United Kingdom 1978’, the Strasbourg Court suggested that the following factors were relevant in determining the existence of inhuman treatment: the duration of the treatment, its physical or mental effects, and the sex, age, and state of health of the victim. In the Tyrer judgement, the Court said that the nature and context of the punishment itself, and the manner and method of its execution should be considered in determining whether a punishment constituted degrading treatment. The threshold of seriousness required and the need to consider the relative nature of the conduct in context indicate that the prohibition in Article 3 is not a static one, but receives a living interpretation and must be considered in the light of present-day circumstances. In Ireland v United Kingdom, the Irish Government alleged that persons in custody in Northern Ireland had been subjected to treatment which constituted torture and inhuman and degrading treatment and punishment within the meaning of Article 3 of the Convention and that such treatment constituted an administrative practice. In issue, in particular, were the five techniques for interrogating detained persons in depth, consisting of covering their heads with hoods, obliging them to stand for long periods against a wall with the libs out stretched, subjecting them to intense noise, depriving them of sleep, and feeding them on a diet of bread and water. After a committee of inquiry in the United Kingdom had looked into these techniques and consideration by Privy Counsellors, the Prime Minister announced in March 1972 that the interrogation techniques would be discontinued. The Commission’s Report of February 19976 concluded that the five techniques amounted to torture and inhuman treatment in breach of Article 3. The Irish Government referred the case to the Court which gave judgement in 1978. Rather to the surprise of many, it concluded that the five techniques did not amount to torture though they did constitute inhuman and degrading treatment. The case is especially important for its contribution to the case-law on the definition of the terms used in Article 3, but it contains many mixed signals. While the majority limited the finding to inhuman and degrading treatment, several judges in the minority concluded that the five techniques amounted to torture and the British judge concluded that they did not amount even to inhuman degrading treatment.
Prohibition of Torture: Defining Inhuman Treatment
Inhuman treatment need not necessarily be deliberate and includes suffering that arises out of conditions of detention. All the circumstances of the case must be considered. The Strasbourg Court has repeatedly said: Treatment had been held by the Court to be ‘inhuman’ because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also ‘degrading’ because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and beading them. In order for a punishment or treatment associated with it to be ‘inhuman’ or ‘degrading’ the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3.
Prohibition of Torture: Defining Degrading Treatment
It has sometimes ben said that degrading treatment requires the presence of gross humiliation before others or being driven to act against will or conscience. However, the Strasbourg Court has stated on several occasions that gross humiliation, as the purpose of the acts in issue, is not always a necessary ingredient of degrading treatment. Nor is intention to humiliate. But where humiliation or debasement in present, the threshold of severity would appear to require that the humiliation is severe. The process of investigation and discharge of homosexuals in the armed forces was found not to reach the requisite threshold in the Smith and Grady case. The Court, however, noted that it would not exclude the possibility that treatment ‘grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority’ could fall within the scope of Article 3. The Commission has considered that racial discrimination could constitute degrading treatment. In the ‘Marckx’ case, the Court ruled that legal rules discriminating against illegitimate children did not constitute degrading treatment within Article 3, though the case might be decided differently if the same situation arose today. In Cyprus v Turkey 2002, the Strasbourg Court found that Greek Cypriots living in the Karpas region of northern Cyprus had been subject to discriminatory treatment which attained a level of severity which amounted to a degrading treatment.
Prohibition of Torture: Destruction Of Homes And Possession
In Bilgin v Turkey 2003, the Strasbourg Court found that destruction of the applicant’s house and his possession during operations by the security forces constituted inhuman treatment. The acts were deliberate and the operations of the security forces had been conducted with complete disregard for the safety and welfare of the applicant. In the ‘Moldovan’ case, the Court found that the involvement of State agents in the destruction of the homes of those of Roma origin coupled with failures of State agencies to prosecute those responsible and to manage the reconstruction of the destroyed homes effectively were motivated by racial discrimination. This constituted a serious violation of Article 8 of the Convention, which in turn constituted degrading treatment in breach of Article 3.
Prohibition of Torture: Corporeal Punishment
The extent to which corporeal punishment constitutes conduct in breach of Article 3 has been considered by the Strasbourg Court in a number of cases. In the case Tyrer v UK 1978, concerning the imposition of the penalty of birching in the Isle of Man on a 15year old who had been convicted of assault on a senior pupil at his school. The punishment was administered by a police constable in private in the presence of the boy’s father and a doctor. In concluding that the punishment of Tyrer constituted degrading treatment, the Court had regard to its character as institutionalised violence, to the fact that the punishment constituted an assault one the applicant’s dignity and physical integrity, which may have had adverse psychological effects, and to the anguish of anticipating the punishment. The Campbell and Cosans v the United Kingdom 1982 case, concerned the use of corporeal punishment in schools. In one case, the parent was unable to obtain an assurance that her son would not be subject to corporeal punishment, and in the other the son, on his father’s advice, presented himself for punishment but refused to accept it and was immediately suspended from school until such time as he was willing to accept the punishment. The form of corporeal punishment in issue was the striking of the hand with a leather strap known as a ‘tease’. The Commission concluded tat there was no violation of Article 3 in these cases. The Court noted that neither child had been subjected to corporeal punishment. Nevertheless, ‘provided it is sufficiently real and immediate, a mere threat of conduct prohibited by Article 3 may itself be in conflict with the provision. The Court, however, concluded that the suffering resulting from the treatment of the two boys did not meet the level inherent in the notion of degrading treatment. The Court wit on to consider whether there provisions of the Convention had been violated.
Prohibition of Torture: Prison Conditions
The ‘Peers v Greece 2001’, concerned conditions in a prison in Greece. There had been a critical report by the Committee for the the Prevention of Torture in relation to the prison in question. it seemed that little had been done to improve the conditions in the prison. The Strasbourg Court concluded that confinement in a cell with no ventilation and no window at the hottest time of the year in circumstances where the applicant had to use the toilet in the presence of another and was present while the toilet was being used by his cell mate diminished his human dignity and amounted to degrading treatment. The poor state of prison facilities in some Contracting Parties remains a cause for concern. In the ‘Kadikis’ case , the applicant complained that his cell, which had an area of six square metres, regularly held four or five people, it was poorly ventilated and had poor lighting; there were no exercise facilities; only one meal per day was provided; no drinking water was provided; there was no bedding or blankets; use of the toilet was restricted to three times a day and urgent needs were accommodated using a bottle and plastic down; and his family were allowed on only one occasion to provide him with items for personal hygiene and fresh clothing. The Strasbourg Court noted that the Committee for the Prevention of Torture had recommended a minimum of seven square metres of cell space per prisoner. The Court found these prison conditions to constitute degrading treatment in violation go Article 3. In extreme cases, poor prison conditions, combined with aggravating circumstances, such as a failure to respond to a prisoner’s mental health problems, could result in a finding that the overall prison regime constituted torture.
Prohibition of Torture: Medical Attention For Detainees
The Strasbourg Court has consistently ruled that all prisoners are entitled to conditions of detention which are compatible with human dignity. This includes having appropriate regard for their well-being. Where mental health is in issue, Contracting Parties have been enjoined to take special account of the vulnerability of prisoners and their inability, in some cases, to complain coherently about their difficulties. Very special measures will need to be put in place where a prisoner constitutes a suicide risk. In one case the Court ordered interim measures in the form of a requirement that the applicant be transferred from hospital to prison, somewhat controversially, found a violation where a transfer to prison took place and a transfer back to hospital took place three days later. The absence of facilities within a prison to meet the needs of a wheelchair user was found to constitute degrading treatment even though it was accepted that there was no intention to humiliate or debase the prisoner. In the ‘ Price’ case, the conditions in which a thalidomide victim was kept in prison were found to amount to degrading treatment. The applicant had been committed to prison for seven days for contempt of court; she was detained both in a police call and in prison for three and a half days. She was seriously disabled by her condition, and used a wheelchair. The Court concluded that her detention in conditions where she was dangerously cold, risked developing sores because her bed was too hard or unreachable, and was unable to get to the toilet or keep clean without the greatest of difficulties amounted to degrading treatment. Furthermore, a complaint of a violation of Article 3 might arise from failure to respond promptly and effectively to a prisoner’s medical needs. The ‘Mousiel’ case concerned a prisoner suffering from leukaemia who had been sentenced to fifteen years imprisonment for armed robbery, kidnapping and fraud. He raised a complaint that his continued detention and the conditions in which he ha been detained violated Article 3. The Court acknowledged that a failure to provide appropriate medical treatment could bring the conduct of the authorities within the positive obligations of Article 3.
Prohibition of Torture: Positive Obligations
The first requirement in positive obligations it that, there must be measures in the Contracting party constitutes effective deterrence and protection. This will involve the categorisation of many forms of conduct as criminal activity; this issue alone seldom troubles the Strasbourg Court. In the Okkali v Turkey, 2006 case, a 12 year-old boy had been beaten by police interrogators. The Court found a violation of Article 3 because the applicant of the criminal law had lacked rigour and so did not have a dissuasive effect capable of ensuring effective protection from inhuman and degrading treatment. In an earlier case, which had concerned the availability if a defence of ‘reasonable chastisement’ in the context of the beating of a nine-year old boy with a stick by his stepfather, the Court had ruled that children and other vulnerable individuals were entitled to State protection in the form of effective deterrence against beatings which constituted a serious breach of their personal integrity. Placing the burden of proof on the prosecution to establish beyond reasonable doubt that the beating went beyond the limits of reasonable chastisement, when the defence was raised, did not provide adequate protection. Where the conduct complained of is that of private parties, rather than different considerations apply. The leading authorities are the cases of the ‘Costello-Roberts, 1993 and A. v UK, 1999’. The Costello-Roberts case concerned the use of corporal punishment in private schools, while the a case of ‘A’ concerned the beating of a child by his stepfather. The Strasbourg Court ruled in both cases that Contracting Parties had an obligation under Article 3 to ensure that those within their jurisdiction are not subjected to treatment prohibited by Article 2, even where that treatment was meted out by private individuals. The second requirement is for an effective investigation capable of leading to prosecution of well-founded allegations of ill-treatment. The investigation must be through, expedient, and independent, with the capacity to lead to the identification of the perpetrators whether agents of the State, or private individuals. The requirement of an effective investigation has given rise to a significant case-law.
Personal Liberty And Security: Structure of Article 5
Article 5 takes a somewhat different approach from corresponding provisions in other human rights treaties. For example, Article 9 of the International Covenant on Civil and Political Rights simply prohibits arbitrary arrest or detention. The structure of Article 5, however, sets out a general right to liberty followed by a prohibition on deprivation of liberty save in the circumstances specified in Article 5(1)(a) to (f). These will be construed narrowly. If a respondent State cannot demonstrate that a measure falls within one of these sub-paragpahs then there is a violation of Article 5. f a measure does fall within one of these sub-paragraphs, then Article 5(1) also requires any deprivation of liberty to Article 5(2) and Article 5(4) apply to all detainees, whereas Article 5(3) applies only to persons detained pending trial on criminal charges. Article 5(5) contains an enforceable right to compensation to everyone who has been the victim of arrest or detention in contraventions of the provisions of Article 5. Derogations under Article 15 from the obligations in Article 5 are permitted. The first sentence of Article 5 provides that everyone has the right to liberty ad security of person; the meaning of ‘security’ in Article 5 is, however, uncertain. The question was raised, but not resolved, in the East African cases. On the normal principles of interpretation, the term ‘security’ should be given a meaning independent of ‘liberty’ , but the remainder of the provision is concerned exclusively with deprivation of liberty. The matter appeared to have been finally resolved in the Bozano case, where the Strasbourg Court’s reasoning indicated that the primary focus of Article 5 is the deprivation of liberty. In cases involving the disappearance of prisoners, however, the Court had made greater use of the terminology of ‘liberty and security of person’, because of uncertainty as to the continuing detention of the disappeared person and the suspicion that he or she may have been executed.
Personal Liberty And Security: What Amounts To Deprivation Of Liberty- Guzzardi v Italy 1981
The second sentence of the provision states that no one shall be ‘deprived of his liberty’ save in the circumstances described. Confinement to a locked prison cell clearly constitutes a deprivation of liberty, but less absolute forms of restriction can be more problematic. Article 2 of Protocol 4 protects the right to leave a country and to move freely within one., so it has been necessary for the Strasbourg Court to draw a line between deprivation of liberty within the meaning of Article 5, and restrictions on freedom of movement. As the case-law shows, this distinction is more a matter of degree and intensity than of nature or substance. In deciding whether a restriction on freedom falls within the scope of Article 5, the Strasbourg Court will look at such factors as the type, duration, effects and manner of implementation of the measure in question. In the case ‘Guzzardi v Italy 1981’, the applicant was ordered on suspicion of being a member of the Mafia, to remain on a small island near Sardinia for sixteen months. Although, there was no perimeter fence, he was not allowed to leave an area of two and a half square kilometres containing a village inhabited solely by other men subject to the same type of residence order, and he had to keep a curfew and report to the police twice a day. His wife and child were not prevented from living with him but the available accommodation was cramped and dilapidated and thus unsuitable for a family. Although he was allowed to work, there were few employers on the island and he was unable to find a job. He had to seek the permission of these conditions was punishable by incarceration. The Strasbourg Court, comparing Guzzard’s situation to that of a person kept in an open prison, found that there has been a deprivation of liberty for the purposes of Article 5. There is no deprivation of liberty if the applicant consents to detention. However, the Court will examine the concrete situation of the person involved. The applicant in the HL case was severely autistic, unable to speak and prone to agitation and self-harm. His doctors decided that it was in his best interests to be admitted to hospital for a while; since he did not resist, he was admitted as an ‘informal’ patient, under no legal obligation to remain in hospital. He remained in hospital on the basis for just over three months; thereafter, following national legal proceedings, he was compulsorily detained. He complained under Article 5 (1) about his time as an ‘informal’ patient. The Court did not find it determinative that the applicant had been compliant and never attempted, or expressed the wish, to leave, considering that ‘the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention. Instead, it found the key factor to have been that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements, and he was not, in reality,f free to leave, since had he made such an attempt there was evidence that the doctors would immediately have detained him under compulsory powers. There had, therefore, been a deprivation of liberty.
Personal Liberty And Security: What Amounts To Deprivation Of Liberty- Shimovolos v Russia 2011 And Austin and others v UK 2012
Cases involving members of the armed forces have thrown up some problems of definition. The ‘Engel’ case concerned the penalties which could be imposed on conscripted Dutch soldiers. There were grades of arrest: the lower grades involved confinement to a different regime might well be applicable to the armed forces, and went on to find that the light forms of arrest did not amount to deprivations of liberty, although stick arrest would. Similarly, once an individual is detained in prison, additional restrictions on his or her liberty, imposed for disciplinary reasons, will not usually give rise to any issue under Article 5(1), although sufficiently severe cases could breach Article 3. In the case ‘Shimovolos v Russia 2011’ the Court found that, where the applicant was forcibly taken to a police station to be questioned about his future involvement in a protest, this amounted to a deprivation of liberty despite being detained in the police station for no more than 45 minutes. The Court has subsequently adopted a more restrictive approach to ‘deprivation of liberty’ under Article 5. In ‘Austin and others v UK 2012’, protests had been held in London which had led to some disorder. As part of the police operation, part of the demonstration was cordoned off (known as kettling) and those who were inside the cordon were not allowed to leave until some hours later. One applicant was a protester whilst the others had been caught up in the cordon but were not part of the demonstration. The Government argued that the cordoning did not amount to a deprivation of liberty as the purpose of the police action had to be taken into account in determining if a deprivation had taken place. The Court accepted the Government’s arguments in finding that there had not been a deprivation of liberty. The Court considered the purpose of the police actions relevant to whether there was a ‘deprivation of liberty’ under Article 5. The Court noted that this decision was based on the ‘specific and exceptional’ facts of the case. This was a situation of force majeure, where there was an imminent risk of violence and injury to those present. The Court had to be creative in its approach to ‘deprivation of liberty’ in order to allow crowd control that was not arbitrary and was continually assessed as necessary the the police. However, the dissenting opinions in the case note that this is not how ‘deprivation of liberty’ had previously been interpreted. The purpose of the State action has been a part of the deliberation on whether a deprivation is justified under Article 5(10(a) to (f) and not whether there has been a ‘deprivation’. The dissent expressed concern with the majority’s argument that in crowd control cases, the maintenance of law and order can be taken into account in deciding if there is a deprivation, as this ‘appears dangerous to us in that it leaves the way open for carte blanche and sends out a bad message to police authorities.’ The decision in Austin may make it easier foe a State to argue that Article 5 is inapplicable by allowing States to argue for a balancing exercise when determining ‘deprivation’, which may introduce added grounds for actions and so undermine the exclusive grounds for a deprivation of liberty specifically set out by the Convention. Despite the Court acknowledging this is an exception case, the dissent’s concerns may be justified. However, in a subsequent judgment, the Court unanimously found a violation of Article 5, where the applicants were Chenchen refuges held for several hours by the police in Georgia. The Government argued that checks were being carried out on Chenchen refugees due to the prevailing security situation. However, although the Court was not specifically commenting on whether there was a deprivation, it made it clear that Article 5(1) was to be narrowly constructed. It is yet to be seen what impact the Austin decision may have on future case law, but the pronouncements of the court post Austin have reiterated the restrictiveness of Article 5 without referring to Austin.
Personal Liberty And Security: The Lawfulness of the Deprivation of Liberty
A deprivation of liberty which does not fall within one of the six categories listed in Article 5(1) will breach the Convention. It is not, however, sufficient merely to come within one of the permitted grounds of detention. The deprivation of liberty must also be ‘lawful’ and carried out ‘in accordance with a procedure prescribed by law’. ‘Lawfulness’ in Article 5(1) carries the same meaning as ‘in accordance with law’ in Articles 8-11. In the case ‘Amuur v France 1996’, guidelines under the French law concerning the holding of asylum seekers in the international zone of an airport were contained in an unpublished Ministry of the Interior circular. This circular was not available to asylum seekers or their lawyers, contained no guarantees against arbitrary detention, and did not provide for review by the national courts. The law was not sufficiently clear and accessible. Similarly, in the case of ‘Baranowski v Poland 2000’, the Court found deficiencies in the Polish law on pre-trial detention. The Court found that the practice of maintaining detention on the basis of the indictment was not founded on any specific legislative provision or case-law but stemmed from the absence of clear rules. It did not, therefore, satisfy the test of foreseeability. Furthermore, the fact that without a court order the detention could continue for an unlimited and unpredictable period was contrary to the principle of legal certainty and open to arbitrariness and abuse. As the Baranowski judgement indicates, even where the national law has been complied with,the deprivation of liberty will not be ‘lawful’ if national law allows for arbitrary or excessive detention.
