The European Court Of Human Rights

The Human Rights Act 1998 applies to all public authorities. It makes it unlawful for bodies like the police, government departments, local councils, etc. to violate the rights contained in the European Convention on Human Rights. The Human Rights Act does not impose duties directly on private individuals or companies unless they are performing public functions. For instance, a private security company looking after prisoners for the police will be bound by the Act.

All courts and tribunals are public authorities for the purposes of the Human Rights Act and will be under a duty to respect Convention rights – particularly the right to a fair trial. Some rights expressed in the Human Rights Act impose positive duties on public authorities to prevent violation of rights.

It has been argued that the Human Rights Act can also assist in some areas of private law. For example as courts and tribunals are public authorities Human Rights Act arguments could be used as a defence in Employment Tribunal actions where the employer is seeking to rely on evidence gained through surveillance of employees.

Any person who is a victim of a violation can use the Human Rights Act. A victim includes anyone directly affected by the actions – or inactions – of any public body. A victim might include a person not necessarily directly affected by the action of a public body but indirectly affected. For instance a person who is likely to be subject to surveillance by the police will be able to use the Human Rights Act even though they have not yet had their privacy interfered with. However a person who is no more affected than any other member of the public is unlikely to be able to use the Human Rights Act.

Where there has been a breach of the European Convention on Human Rights – or even where there is about to be – the victim can take proceedings in court under the Human Rights Act. They may be able to take judicial review proceedings, obtain an injunction to stop the violation, force the public authority to take action or obtain damages and compensation.

The Human Rights Act can also be used if you are subject to proceedings taken against you by a public authority, for instance, if you are being sued or being prosecuted. You will also be able to use the Act in tribunal proceedings, such as unfair dismissal proceedings. There is a one-year time limit to bring an action under the Human Rights Act unless there are shorter time limits that also apply to the action – for example three months for Judicial Review – in which case the shorter time limit will apply.

Under the Human Rights Act, 1998 old judge-made law – the common law – will have to change if it does not respect the rights in the European Convention on Human Rights. Secondary legislation – like Statutory Instruments – will not be valid if it does not comply with Convention rights. Even primary legislation – Parliamentary statute – will have to be brought into line with Convention rights “so far as it is possible to do so”. If primary legislation cannot be read to comply with the Convention the higher courts can make what is called a “declaration of incompatibility” which will allow the government to amend that law speedily. If the law is not amended it is likely that the case will proceed to the European Court of Human Rights.

Article 2 to 12 and 14 to 18 of the European Convention on Human Rights plus Article 1 to 3 of the First Protocol to the Convention have been incorporated into UK law by the Human Rights Act.

Protocol 6 has also been incorporated – although this only relates to the abolition of the death penalty which was abolished for all practical purposes in domestic law over thirty five years ago. The rights in Protocol 7 are likely to be introduced over the next few years.

These include Article 2, Article 3, Article 4(1) and Article 7. They are not limited and they cannot be infringed no matter how necessary it might seem to be to do so.

Examples of such rights include Articles 4(2), 5, 6 and 12. In such articles the right is set out at the beginning and then there are specific limitations in the article itself.

These include Article 8, 9, 10, 11, 14 and Protocol 1, Article 1. Generally in such articles the right is set out at the start and then is qualified. Any infringement needs to promote a specific legitimate aim – in interests of national security, public safety, etc. The infringement must be properly regulated by the law and must be necessary in a democratic society. This latter concept means the interference with the right must be a proportionate response to the legitimate aim. If the aim can be achieved by a less intrusive method then that method must be used instead.

Articles 16 May 1902. This section describes each article of the European Convention on Human Rights. It gives examples of how the articles have been used under the Human Rights Act 1998.

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.

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

• In defence of any person from unlawful violence
• In order to effect a lawful arrest or to prevent the escape of a person lawfully detained
• In action lawfully taken for the purpose of quelling a riot or insurrection

This provides that the Government and public authorities must protect the right to life. This may require, for example, that the police have to protect someone whose life is under immediate threat. It could be used to argue that a patient should be able to get treatment that would save their life.

In the situations listed in the second provision of the Article – if someone dies, the Government or public authority (usually the police) will have to show that no more force was used than was absolutely necessary. If they cannot show that they used only as much force as was absolutely necessary, they will have broken Article 2.

The article provides that there should be a proper investigation when the police or army kill someone or when someone dies in custody.

No one shall be subjected to torture or inhuman or degrading treatment or punishment.

The European Court of Human Rights has ruled that inhuman or degrading treatment or punishment has to be very serious to be in breach of Article 3.

People have used this article to argue that someone should not be deported to a country where they are likely to be tortured. It could also be used to argue that someone should not be deported to a country where they are likely to be given an unfair prison sentence. Prisoners or people held in hospital might use it if they are treated badly or if the conditions in the prison or hospital are particularly bad.

No one shall be held in slavery or servitude.

No one shall be required to perform forced or compulsory labour.

For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:

• Any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of the Convention or during conditional release from such detention
• Any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service
• Any service exacted in case of an emergency or calamity threatening the life or well-being of the community
• Any work or service which forms part of normal civic obligations.

This Article may mean that the courts will be able to order someone to do community service only if they agree to it. It could also be argued that Article 4 would be broken if someone’s benefit was taken away because he/she is refusing to take a job.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

• The lawful detention of a person after conviction by a competent court
• The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law
• The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
• The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority
• The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics and drug addicts or vagrants
• The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reason for his arrest and of any charge against him.

Everyone arrested or detained in accordance with the provisions of paragraph ‘c’ of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

This limits the circumstances in which someone can be detained and have their freedom taken away. This covers detention for both long periods (for example, if you are in prison or are forced to stay as a patient in a mental hospital) and short periods (for example, if you are arrested). It may even cover stop and search provisions.