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Published: Fri, 02 Feb 2018
The Sources Of Human Rights
The European Convention of Human Rights of 1950 which was adopted in 1953 is a Council of Europe Treaty under which member states of the same council promise to safeguard the political and fundamental civil rights not only of their own citizens but also of those subjects within their jurisdiction.
Example of human rights would include right to a fair trial in cases when one is charged with a crime, right to life, the right not to be tortured, right to engage in political activity etc. These rights are moral and legal rights which exist both at national and international level.
Sources of Human Rights
The primary sources of Human rights are obviously the United Nations Universal Declaration of Human Rights and the various human rights documents and treaties that followed such as those by, the Council of Europe, the Organization of American States, the European Union etc.
In all there are three different categories of Convention Rights These are Absolute Rights, Qualified Rights and Limited Rights.
Absolute rights are those rights that cannot be breached under any circumstance. These include the Right to Life and No punishment without legislation.
On the other hand Qualified rights are those rights which a state can lawfully hinder in certain circumstances. By and large in such provisions the right is laid out in the beginning of the provision and then qualified by certain criteria such as whether the interference is in conformity with the law; is in pursuance of a just aim, and whether it is essential in a democratic society. Examples of such rights would include;
Article 8 of the ECHR Convention -Right to respect for your Private Life
Article 10 of the ECHR Convention – The Right to Freedom of Expression
The 3rd category of Convention Rights are the Limited Rights. By this it is meant that these rights can only be limited only in certain circumstance which are specified in the law. Therefore it will unconventional for a state to deprive you of your liberty unless this is expressly allowed by Article 5 of the European Convention of Human Rights.
European Court of Human Rights and its Rulings
The European Court of Human Rights is an international Court based in Strasbourg. Its function is to rule on individual or state applications which allege violation of rights set out in the European Convention of Human Rights. The rulings of this organ are binding on the countries concerned and these judgements have led states to amend their law and administrative practise in different areas. The judgements delivered by this Court direct the convention to meet new challenges and strengthens the rule of law and democracy in Europe.
Incorporation in the Maltese Constitution
Both the European Convention for the Protection of Human Rights and the 1st Protocol were incorporated in our Constitution by the enactment of the European Convention Act which Malta signed on the 12th December 1966. This later ratified the Convention and its First Protocol.
As from the 1st May 1987 Malta started recognising the European Commission of Human Rights in order to be able to start receiving individual petitions and compulsory jurisdiction of the ECHR.
Later on the European Convention Act incorporated the European Convention on Human Rights into our legislation.
Is there a hierarchy of Human Rights?
Most of the time it is argued that human rights are indivisible. What is meant by this is that every human right is important as every other right. However there are certain rights which are more fundamental than others. This is because for example the Rights to Life and the Right no to be subjected to Retroactive law are so fundamental that they cannot be sanctioned even in times of grave emergencies’.
Article 2 of the European Convention of Human Rights – The Right to Life
The Right to Life is one of the most important fundamental rights which a state should not deprive you of except in those very limited circumstances. Besides prohibiting a states from taking your life, Article 2 of the European Convention of Human Rights requires that a state should protect your right to life by having in place proper and adequate criminal sanctions to penalise those persons who take your life intentionally. The failure by a state to properly investigate/ prosecute a suspected murder may amount to a violation of the right of life of the victim.
In certain circumstances Article 2 may impose a duty on the state to take the necessary steps to safeguard your life when it is in danger. For example when there is an environmental hazard that poses a threat to the life of people, the state may be imposed with a duty to inform the public about the hazard, in to take the necessary precautions.
A landmark judgement given by the European Court of Human Rights is that of Osman vs UK. In this case the European Court of Human Rights concluded that the Police were obliged to take reasonable steps to protect the life of Osman, as they aware that his life was in real and immediate risk.
When someone is killed by Police/Army or Prison Officers, this always engages their right to life. In these circumstances Article 2 impose a duty on the state to investigate the death and therefore if a state fails to investigate, the state in question will be violating Article 2.
In the United Kingdom there were a no of cases where the Courts had to consider what type of investigation was necessary in order to meet this requirement. An interesting case decided by the British Courts was that of R vs Secretary of State for Home Department 2003 which dealt with prisoner which was murder by his racist cellmate who was known to be a threat to other inmates. In this case the British Courts had requested an independent public investigation to satisfy Article 2.
When death takes place in the above mentioned circumstances, the police or the other state officials responsible for the death will have to have to prove that they did not use excessive force. Therefore if one is killed by a state official when he was being arrested this will be a breach of Article 2 if it results that the state officials used excessive forced in order to confine that person.
One should keep in mind that this article was supplemented by the 6th Protocol which abolishes the death penalty although it allows for exception in wartime.
Article 7 of the European Convention of Human Rights – No Punishment without legislation
This article clearly states that no one can be found guilty of a criminal offence if what he/she did was not an offence at the time when such offence was committed. Therefore this Article prevents Parliament from enacting retroactive laws.
Such article also provides that one cannot be imposed a heavier penalty than the one that was applicable at the time when the offence was committed.
Through out the years there were a no of ECHR judgements which dealt with the question of what constitutes a penalty for the purpose of Article 7 of the ECHR. In Welsh vs UK, the European Court of Human Rights held that a confiscation order constituted a penalty because
it required the offender to repay the money he had made through the crime he committed and,
it was intended to punish him
Under the Sex Offenders Act, one is required to give a notification. The scope of this is to prevent the crime rather than to penalise the offender, and therefore this leads us to the conclusion that for the purpose of Article 7 of the European Convention of Human Rights this is not a penalty. Here one concludes that sex offenders may be required to abide with much stricter notification requirements than those that were in force when such offence was committed.
Article 7 then goes on to say that the law must be clear so that people would know whether or not what they re doing is against the law.
In Paragraph 2 of this article one finds also the Derogatory clause which makes reference to the Nuremberg principles in the event of war crimes and crimes against humanity.
The above mentioned rights are so important that they have enjoyed an existence before they were recognised by the United Nations Charter or any other international instruments. Therefore one may conclude that such rights originate from natural law and that they lie at the foundation of the international community.
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