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European Convention on Human Rights (Thesis Sample)


laws guarding human rights


The European Convention on Human Rights (ECHR)
This convention is an international treaty to protect human rights and fundamental freedoms in Europe. It is formally the Convention for the Protection of Human Rights and Fundamental Freedoms. Drafting was done in 1950 by the then newly formed Council of Europe; it then entered into force on 3 September 1953. The Convention brought up the European Court of Human Rights (ECtHR). The European Convention on Human Rights has played a key role in the development of Human Rights in Europe hence the development of a regional system of human rights protection operating across Europe (Betten, 1999). It was designed for incorporation of a traditional civil liberties approach to securing excellent political democracy, from the strongest traditions in the United Kingdom, France and other member states of the fledgling Council of Europe.
The convention is overseen and enforced by the European Court of Human Rights in Strasbourg, and the Council of Europe. A European Commission also managed the Convention on Human Rights. It consists of three parts. The first section has the essential rights and freedoms, which consists of Articles 2 to 18. Next section, from Articles 19 to 51 sets up the Court and its rules of operation. The final section contains various concluding provisions.
Human Rights in the Convention
The Convention gives solid form to some of the rights and freedoms embodied in the Universal Declaration of Human Rights, hence gives a list of guaranteed rights. The Convention notes that the rights can be received by all human beings living in each of the Council of Europe's member states. In summary, these rights are: Right to life, Prohibition of Torture, Prohibition of slavery and Right to liberty and security. Right to a fair trial, Fair judgment, Right to respect for family and private life, Freedom of thought, conscience, and religion, Freedom of Expression and Freedom of assembly and association. Not limiting the right to marry, Right to an adequate remedy, Prohibition of discrimination
However, according to Betten, (1999), Convention rights can, be grouped into three categories according to their weight; absolute, limited and qualified rights.
* Absolute rights
Some rights like the protection against torture are absolute and cannot be removed or limited by member states. Nor can an absolute right be weighed against the needs of other people or the public interest, except in rare situations where two absolute rights are to be balanced against each other.
* Limited rights
These are rights limited under particular and limited circumstances. Limited rights, just like absolute rights cannot be weighed against the rights of other individuals or the public interest. But governments are entitled under the Convention to derogate from their application in times of war or national emergency. The right to liberty, Article 5, and the right to a fair trial, Article 6 are examples of limited rights for these purposes.
* Qualified rights
These are rights that can be restricted in times of war or emergency and to protect the rights of another or the wider public interest. This category of conventions includes those guaranteed by Articles 8, 9, 10 and 11.
Mentioning on some of the rights discussed in the convention, for instance, the right to life, as indicated in Article 2. The right protects every person from losing their life. This power extends only to human beings but not to non-human, animals or legal persons such as corporations and the unborn children. The Court ruled that nations have three obligations under Article 2: Duty to refrain from unlawful killing, duty to investigate suspicious deaths and in some circumstance, an affirmative duty to prevent inevitable loss of life.
Article 2 further states that death from arresting a suspect or fugitive, defending oneself or others, or even suppressing riots or insurrections, will not contravene the Article when the use of power involved is not more than necessary. The European Court of Human Rights never ruled on the right to life until 1995.
Article 8 states the right to respect for one's private and family life, their home correspondences, subject to certain restrictions by law and those that are necessary for a democratic society. This article clearly gives a right to be free of unlawful searches, although the Court has given the protection for private and family life that this section provides a broad interpretation. Furthermore, this article sometimes comprises positive obligations; whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something, for instance, not to separate a family from family life protection.
Formation of the European Convention on Human Rights
After the Council convened in 1948, the Convention was then drafted in 1949, in which the principal precursor was the United Nation's United Declaration of Human Rights which had been adopted in 1948, but only English civil servants. The existence of the convention was highly influenced by the reflecting English common law perceptions of rights. The Convention was finalized in 1950, with the UK as an original signatory and ratifying state in 1951 (Petaux, 2009). It, therefore, came into force in 1953. The Council of Europe drafted the Convention after the Second World War. That was in response to a call issued by Europeans from all walks of life who had gathered at the Hague Congress. The number of states getting involved with the Convention has grown particularly in recent years with the accession of many Eastern European states. Also, the amount of business has increased highly because of the gradual rise in the recognition and reliance upon the particular right of individual petition (Petaux, 2009).
The role of the Council of Europe
* To protect human rights, the rule of law and democracy.
* To encourage the development of Europe's cultural identity and diversity and promote awareness
* To come up with solutions to the challenges facing European society, for instance, discrimination against minorities, xenophobia, intolerance, and cloning, terrorism, trafficking in human beings, corruption and organized crime among others.
* Democratic stability consolidation in Europe by backing legislative, political and constitutional reform (Wiebringhaus, 2009).
The European Court of Human Rights and its functions
The court oversees the implementation of the Convention in the member states. Some individuals may bring complaints of human rights violations to the Court once all possibilities of appeal have been exhausted in the member state concerned. The European Court of Human Rights is currently directly accessible to the particular individuals, and their jurisdiction is compulsory for all contracting parties. It sits on a permanent basis and works on all the preliminary stages of a case, including giving judgment on the merits. The Court's final decisions are binding on the state concerned.
It monitors the Court's opinions in which a violation is found; it is the task of the Committee of Ministers. This ensures that states take any general measures required to prevent further violations.
Human Rights Act 1998 (HRA)
The Human Rights Act was enacted in the United Kingdom in October 2000. It comprises a series of sections that have the effect of codifying the protections in the Convention into UK law and, so has made the Convention rights enforceable in United Kingdom courts. The Act is a uniquely British model for incorporating the ECHR into our domestic law (Craig, 2010).. The HRA is, therefore, a means by which people could secure access to justice in British courts, rather than having to go to Strasbourg to argue their case in the Court.
According to the Ministry of Justice, the Human Rights Act works in three ways: First, it requires all legislation to be interpreted and given effect as far as possible compatible with the Convention rights. Secondly, it makes it not lawful for a public authority to behave incompatibly with the Convention rights and lets a case to be taken to a UK court or tribunal on the board. In general, a person who wishes to take the UK to the ECtHR must first bring their case to our domestic courts. Finally, UK courts and tribunals should take account of Convention rights in all cases that come before them (Hickman, 2010).
Impact of Human Right Act to Domestic Law
The HRA adheres to the concept of parliamentary sovereignty; therefore it is not possible for United Kingdom courts to decide void on any legislation where it breaches Convention rights. This can be contrasted with several other jurisdictions worldwide which often have written constitutions with a higher status than other laws (Hickman and Craig, 2010). Those laws usually permit other legislation to be claimed void if they breach any Bills of Rights.
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