Key Human Rights

In looking to discuss some of what are considered to be the key human rights in this country, it is important to also look to show where they have been applied. Therefore this section will look to present some of the rights within the contexts that they commonly arisen in recent times to allow for a better understanding.

(a) Article 2 - Right to Life

The right to life has become particularly prevalent in relation to issues of state security in society, illustrated by the decision in Nikolova & Velichkova v. Bulgaria [2007] ECHR 1128 regarding whether the national police force in Bulgaria had violated Article 2.

The possibility of obtaining compensation for the death of a person provided sufficient redress for an alleged violation of Article 2.

But the object and purpose of the European Convention requires Article 2 to be interpreted and applied to make its safeguards practical and effective, supported by Anguelova v. Bulgaria, Application No. 38361/97, ECHR 2002 IV, whilst also imposing a duty on the State to secure the right to life with effective criminal law provisions, illustrated by Menson v.The United Kingdom (dec.), no. 47916/99, ECHR 2003 V - because of the positive obligations placed upon the state, according to Nachova & Others v. Bulgaria [GC], (Application Nos. 43577/98 & 43579/98), ECHR 2005 VII - through an effective investigation to maintain public confidence, supported by Paul & Audrey Edwards v. the United Kingdom, (Application No. 46477/99), ECHR 2002 II, and trial process, in keeping with TÃ¼rkmen v. Turkey, (Application No. 43124/98), 19 December 2006.

(b) Article 3 - Prohibition of Torture

This aspect of human rights law has become particularly relevant in relation to immigration because a country that knowingly sends someone into a situation where they are likely to be violently persecuted is in breach of Article 3, illustrated by Soering v. UK (1989) 11 EHRR 439, and this has since become well established in the European Court of Human Rights jurisprudence, illustrated by Cruz Varas & Others v. Sweden (46/1990/237/307), 20th March 1991.

But in R v. Secretary of State for the Home Department (Respondent), ex parte Bagdanavicius & another [2005] UKHL 38 concerned a man who unsuccessfully claimed the failure of the Lithuanian authorities to protect him from the racial wrath of his wife's family meant returning him to Lithuania would be a breach of Article 3, but although it may be argued this was a mere aberration, the fear of Mr Bagdanavicius was not considered sufficiently real to qualify.

Consequently, despite the fact it was concluded in Soering v. UK (1989) 11 EHRR 439 a duty was owed to protect the human rights of a non-national, according to the circumstances surrounding their removal or extradition under Article 3, it has now been recognised a state's obligations are only exceptionally engaged, illustrated by N v. SSHD [2003] EWCA Civ 1369.

(c) Article 5 - Right to Liberty & Security

Ever since the 9/11, as policing has tightened up in the wake of terrorist attacks, the right to liberty and security for minorities in particular has often been called into question.

By way of illustration, in R (on the application of Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 this case concerned A, who had been born in Iraq, and had been granted asylum in the UK and was later granted British nationality. He had travelled to Iraq in 2004 and was detained by British armed forces on suspicion of terrorist activities and argued his detention breached his rights under Article 5 of the ECHR 1950.

But in this case it was held refusing a claim for judicial review and rights under the Human Rights Act 1998 were capable of being overridden by a UN Security Council Resolution 1546 to detain A that overrode the UK's obligation under Article 5 to the extent permitted by the resolution as a reflection of the circumstances at the time - i.e. the fear of terrorist attack.

(d) Article 6 - Right to a Fair Trial

The right to a 'fair trial' is fundamental in a democratic society, such as the UK, according to Thompson v. United Kingdom (2005) 40 EHRR 11.

This is effectively illustrated by Dowsett v. United Kingdom (2003) 38 EHRR 845, where it was held there had been a violation of Article 6 because the prosecution had failed to disclose the material evidence, also supported by Edwards & Lewis v. United Kingdom (2005) 40 EHRR 24.

Moreover, in the context of legal representation it was held in Hooper v. United Kingdom (App. No. 42317/98) (16th November 2004) (unreported) there had been a violation of Articles 6(1) and (3)(c) when the applicant and their legal representative was denied the opportunity to address the magistrate.

Issues regarding a fair trial have also been considered with regards to young people, illustrated by SC v. United Kingdom [2004] 40 EHRR 121 where it was held there had been a violation of Article 6(1) when a young person of 11 years of age was tried in an adult court and convicted for attempted robbery, it wash held the boy had been incapable of fully understanding the proceedings and their consequences so the court could not conclude the applicant was capable of participating.

Articles 8 & 10 - Right to Privacy & Freedom of Expression

A v. B plc [2003] QB 195 said the courts had absorbed "the rights protected by Articles 8 and 10 into this cause of action".

Prior to 1995, English law did not protect an individual's privacy and largely protected breaches of confidence only, supported by Coco v. A.N. Clark Engineers Ltd. [1969] R.P.C. 41, until the decision in Peck v. UK (2003) 36 E.H.R.R. 41.

As a result, there is no longer a need for a 'special relationship' because it was recognised in Attorney General v. Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109 that "a duty of confidence arises when confidential information comes to the knowledge of a person â€¦ with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others" and this is also supported by Campbell v. MGN Ltd [2004] UKHL 22.

In Douglas v. Hello! [2001] 2 WLR 992 to comply with its duties under Articles 8 and 10 the court recognised they were obliged to interpret 'breach of duty' as including all the rights protected under the European Convention in relation to privacy.

As was further illustrated by decisions, including Theakston v. MGN Ltd [2002] EWHC 137 QB, there is a need to strike a balance between these two rights that will vary considerably depending on who is involved (i.e. in certain situations someone who actively courts publicity may be less entitled to protection than someone who does not - the difference between celebrity and the rest of society - in keeping with the decision in Woodward v. Huchins [1977] 1 WLR 760).

(f) Article 9 - Freedom of Thought, Conscience & Religion

Often in looking to provide medical care, medical personnel have to be aware of the fact that patients may refuse treatment where they believe this will contravene their beliefs and was considered indirectly in the decision in Hoffmann v. Austria (1993) Series A, No. 255.

But in Arrowsmith v. UK (1978) 19 DR 5 it had previously been indicated that 'religious practice' does not cover every act motivated by religion so such a right is likely to be ignored.

Therefore, with this in mind, to at least assert such a right it will be necessary to determine whether there is any advanced directive in place that gives effect to an individual's beliefs and carried a card that effectively prohibited their treatment, on the basis of Malette v. Schulman (1990) 67 DLR (4th) 321, "to speak in circumstances where the card carrier cannot".

(g) Article 14 - Prohibition of Discrimination

As a reflection of the way which society has changed where, at one time, no violation was involved in a failure to change the birth certificate of a transsexual but, in Goodwin v. United Kingdom [2002] 35 EHRR 447, it was held there was no justification for barring the legal recognition of a transsexual under any circumstances within this country's margin of appreciation.

In reaching this conclusion, the Strasbourg Court took into account the evidence of a continuing international trend in favour of the increased social acceptance and legal recognition of transsexuals as a reflection upon what was already discussed in the first section in relation to human rights domestic interpretation by the courts.

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