Topic 3: Human Rights
The Rights and Freedoms Protected under the ECHR:
Rights Protection under the ECHR:
ECHR Rights:
The ECHR represents a choice of how to legalise the moral precepts embodied by the philosophical
concept of human rights. Social/political rights are focused on, with social/economic largely ignored
due to the fear judges would be drawn into areas they are ‘not equipped for’ and ‘not responsible’. 1
The Rights enjoyed in UK domestic law could changed, through the drafting of a UK Bill of Rights
(proposed by the Conservatives) or the incorporation of other international treaties (European Social
Charter/the International Covenant on Economic, Social, and Cultural Rights.
Territorial Reach of the ECHR Rights:
The Article 1 provision that human rights protection only applies to ‘everyone within their jurisdiction’
excludes states’ conduct outside their territory. However, the Court interpretation is now that the
ECHR applies primarily to the conduct within states, and that in exceptional cases, acts of states that
produce effects outside of their territory can fall within the ‘jurisdiction’ for the purposes of the ECHR.
The Court has recognised three exceptional circumstances of expanding jurisdiction:
o If one convention state invades another convention state (Turkey’s invasion of Cyprus in
1974, its actions will be subject to the ECHR, as if this did not occur the inhabitants would
lose the Convention’s protection.
o Where agents of Convention state are in control of a situation (even if beyond the state’s
borders) the Convention applies (e.g., when a fugitive Kurdish separatists leader was handed
over to Turkish officials in Kenya, the court held that the applicant ‘was effectively under
Turkish authority’ despite being in Kenya, and that the ‘jurisdiction’ applies for the ‘purposes
of Article 1… even though… Turkey exercised its authority outside its territory,’ Ocalan v
Turkey (2005) 41 EHRR 45, [91] (GC). This ensures states cannot avoid the ECHR by removing
individuals beyond the territorial remit of the Convention (e.g., ‘extraordinary rendition’ with
the USA during the ‘War on Terror’ in transporting individuals to 3 rd countries).
Controversial efforts to persuade the European Court to employ the ECHR to constrain states’
overseas military operations outside the territory of any Convention state. For example, NATO-led
operations in Yugoslavia, Afghanistan, and Libya, and several Convention states during the Iraq
Invasion. The Court has ruled only if a state exercises effective control of territory within another
state are its actions subject to the ECHR.
Bankovic and Others v Secretary of State for Defence saw the applicants as individuals injured/killed
by the NATO bombing of a Serbian TV station/radio centre in April 1999. The Court held that the
Convention could not be interpreted to equate high-level bombing of a target in a non-Convention
state with having ‘effective control’ over the area. 2
Contrastingly, post-2003 Iraq invasion saw the UK help administer large areas of southern Iraq. In R
(Al-Skeini) v Secretary of State for Defence, the applicants argued the UK’s forces causing deaths in
south-eastern Iraq was subject to the ECHR, as the UK’s presence amounted to ‘effective control’. The
House of Lords held that deaths in UK custody in Iraq did fall within the ECHR scope, such as in
Ocalan, when the agents of a Convention state controlled the situation. However, the Lords also held
that it refused to apply the ECHR to all activity by UK forces in southern Iraq.
o Lord Carswell: ‘it would… require a high degree of control by the agents of that state of an
area in another state before it could be said that that area was within the jurisdiction of the
former’.3
1
T. Campbell, ‘Human Rights: A Culture of Controversy’ (1999) 26 JLS 6, 22.
2
(2007) 44 EHRR SE5, [75] (GC)
3
[2007] UKHL 26, [97].
, Thus, expansive interpretations of ‘effective control’ were rejected by the Lords, as they recognised
the limitations of the ECHR as a regional, and not global, human rights treaty.
However, when the Strasbourg court heard these cases, they disagreed, arguing that when ‘the
United Kingdom assumed in Iraq the exercise of some of the public powers normally to be exercised
by a sovereign government’.
o ‘In these exceptional circumstances, the Court considers that the United Kingdom, through
its soldiers engaged in security operations in Basrah during the period in question, exercised
authority and control over individuals killed in the course of such security operations, so as to
establish a jurisdictional link between the deceased and the United Kingdom’. 4
As ECHR rights are indivisible from Article 1, the UK would have had to uphold the Right to Life as well
as Freedom of Expression and Association during its time in ‘effective control’ in Iraq. This is far
removed from the Bankovic decision, and reckless towards the fact the Court’s operations are ‘to a
large extent dependent on the support of the Contracting states themselves’. 5
Judge Bonello, in Al-Skeini, was scathing in his dismissal of the UK government’s accusations that the
Strasbourg court was engaged in ‘human rights imperialism,’ in that ‘ill behoves a State’ that ‘resent
the charge of having exported human rights imperialism to the vanquished enemy’. 6
Consequently, expanding ‘effective control’ meant that Convention states now knew if they were to
act as an invading and occupying power, they would be subject to the jurisdiction. However, this
extra-territorial application of the Convention remains contentious in the UK, with Boris Johnson’s
government’s Overseas Operations Bill proposing that ministers ‘must keep under consideration’
derogation from the Convention’s protections in future military conflicts on the basis that the
operation of ECHR rights inhibits the operational effectiveness of the armed forces. 7 Regardless, the
provision had little point, as Parliament’s Joint Committee on Human Rights concluding that such
consideration was ‘what the Minister would or should do in any event’. 8 This provision was dropped.
Absolute Rights:
These rights cannot be justifiably/excusably interfered with by a state (often identifiable as the
shortest rights in the ECHR), as no circumstances in which interferences with the rights would not be a
breach of the Convention. The Absolute Rights are:
o Article 3: the prohibition of torture
People must not be subjected to torture or inhuman and degrading treatment
o Article 4: the prohibition of slavery/forced labour
People must not be enslaved or compelled to perform forced labour
o Article 5: right to liberty/security
People who are arrested must be promptly informed of the charges against them
and must promptly have the lawfulness of their detention confirmed by a judge
o Article 6: right to a fair trial
People facing criminal charges must have time to prepare their defence, access to
legal representation and the ability to call witnesses
Engaging these Rights:
Article 3 is one sentence long: ‘no one shall be subjected to torture or to inhuman or degrading
treatment or punishment’. Without caveats/exceptions, the European Court seeks that when an
4
Al-Skeini v United Kingdom (2011) 53 EHRR 18, [149]
5
G. Ress, ‘The Effect of Decisions and Judgements of the European Court of Human Rights in the Domestic
Legal Order’ (2005) 40 Texas International Law Journal 359, 364-5.
6
(2011) 53 EHRR 18, Concurring Opinion, [37].
7
See R. Ekins, J. Morgan and T. Tugendhat, Clearing the Fog of War: Saving our Armed Forces from Defeat by
Judicial Diktat (Policy Exchange, 2015).
8
Joint Committee on Human Rights, Legislative Scrutiny: The Overseas Operations (Service Personnel and
Veterans) Bill (2020) HC 665/HL 155, para. 130.
, individual claims their Article 3 right has been infringed is to primarily assess whether the actions of
the state actually constitute ‘torture or inhuman or degrading treatment or punishment’.
For a state’s activity to fall within the scope of Article 3, the ‘ill treatment must attain a minimum level
of severity,’ with factors such as age, health, and sex of the victim affecting this threshold. 9
What types of ill-treatment will exceed this minimum threshold? Case law shows, when children are
the victims, corporal punishment is often sufficient to breach this right (Costello-Roberts v United
Kingdom (1995) 19 EHRR 12). When healthy adult males are the victims, the European Court
addressed this in the ground-breaking decision of Ireland v United Kingdom, where, in the 1970s amid
the Northern Ireland violence, the UK Government authorised 5 interrogation techniques to gain
information from suspected terrorists. These were:
o Forcing suspects to stand in stress positions
o Hooding
o Subjection to loud noise
o Deprivation of sleep
o Deprivation of food and drink
These acts were held to be sufficiently severe enough to infringe Article 3:
o ‘they caused, if not actual bodily injury, at least intense physical and mental suffering… and
also led to acute psychiatric disturbances…they accordingly fell into the category of inhuman
treatment within the meaning of Article 3’. 10
Concerning the prohibition of torture and the prohibition of slavery/forced labour, the courts have
repeatedly affirmed that these constitute ‘fundamental values of the democratic societies that make
up the Council of Europe’.11 Thus, the court also applies the Rights to Convention member states
regarding to any steps taken to expose individuals to a risk of torture/inhuman and degrading
treatment, such as extradition when it is known that it will cause ill-treatment further still/colluding
with a non-Convention state in the ill-treatment of an individual. This approach is followed on the
basis that:
o ‘Extradition… while not explicitly referred to… in Article 3, would plainly be contrary to the
spirit and intendment of the Article… this inherent obligation not to extradite also extends to
cases in which the fugitive would be faced in the receiving State by a real risk of exposure to
inhuman or degrading treatment or punishment proscribed by that Article’. 12
This is significant, as the court acknowledged that the breadth of a right depends on the spirit and not
the wording alone of the relevant ECHR provision – meaning we cannot rely on literal interpretation.
Thus, the ECHR is responsible for the development/safeguarding of the rights’ philosophical
underpinnings. This was important for Article 3 post-9/11, as it allowed the Court to emphasise the
absolute nature of the right was long settled, despite pressure from states to allow for national
security exceptions:
o ‘It cannot underestimate the scale of the danger of terrorism today and the threat it presents
to the community. That must not, however, call into question the absolute nature of Article 3
(Saadi v Italy (2009) 49 EHRR 30, [137])
Limited Rights:
Limited Rights can only be restricted under explicit and finite circumstances, which are explicitly
provided for in the ECHR itself and cannot be altered without amending the treaty. As with absolute
rights, assessing whether the impugned activity actually engages the right in question needs to be
addressed. This is more difficult, with the court having to consider questions such as when life begins
for the purposes of the Article 2 Right to Life (Vo v France (2005) 40 EHRR 259), and whether
restrictions on a person’s freedom amount to deprivations of liberty under Article 5, or mere
restrictions on freedom of movement (Guzzardi v Italy (1981 3 EHRR 333).
9
A, B and C v Ireland (2011) 53 EHRR 13, [164].
10
Ireland v United Kingdom (1978) 2 EHRR 25, [167]
11
Soering v United Kingdom (1989) 11 EHRR 439, [88]
12
Soering v United Kingdom (1989) 11 EHRR 439, [88]
, Triggering the Specific Limitations:
The original terms of Article 2 ECHR allowed for states to keep the death penalty for serious crimes.
Protocol 6, in 1983, saw the Convention states restrict this exception, bar wartime, after ratification.
This was developed further, with Protocol 13 banning the death penalty during all circumstances. The
UK saw the Human Rights Act 1998 s. 21(1) closed the exception. Consequently, the killing of an
individual by the state is only justifiable if it took place within one of three situations:
o In defence of any person from unlawful violence (including self-defence);
o In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
o In action lawfully taken for the purposes of quelling a riot or insurrection.
To trigger one of these exceptions, the state must show the court not only that the case fits within the
terms of exception, because of the importance of the Right to Life, but also that its actions were no
more than necessary to fulfil this aim. A proportionality requirement is introduced, as a result,
allowing the court to interpret the limitations upon the right restrictively. This was shown in McCann v
United Kingdom:
McCann v United Kingdom (1996) 21 EHRR 97 (European Court of Human Rights)
SAS soldiers killed 3 Provisional IRA members who had been preparing a bomb attack on Gibraltar. The
European Court found that the action of these soldiers constituted a justified effort to save lives from what
they believed to be an imminent bomb attack, thereby fitting within the first exception to Article 2 at (at
[200]), ‘the actions which they took, in obedience to superior orders, were thus perceived by them as
absolutely necessary in order to safeguard innocent lives’.
However, the same couldn’t be said for the way in which the operation was planned. UK authorities
deliberately didn’t arrest the IRA team at Gibraltar’s border and had presented as fact to the SAS soldiers
flawed intelligence that the IRA members were at the time in possession of a bomb. Consequently, the
European Court found [211] that the UK failed in its obligation to ‘exercise the greatest care in evaluating the
information at their disposal before transmitting it to soldiers whose use of firearms automatically involved
shooting to kill’.
McCann shows the European Court found establishing a breach is sufficient remedy and refused to award
damages resultant from the breach to the families of the decreased. As the majority concluded in [219],
‘having regard to the fact that the three terrorist suspects who were killed had been intending to plan a bomb
in Gibraltar, the court does not consider it appropriate to make an award’.
The approach taken suggest that if people are killed during an arrest/riot, this will not be justified under the
limitations to Article 2 unless the authorities had made meaningful efforts to minimise the risk to life.
Qualified Rights:
Qualified rights allow interference by the state, with the rights focusing on arriving at a ‘fair balance’ between
the interests of individuals against society. Qualifications to these rights are public policy concerns which can
be raised by the state to justify actions by public authorities that would otherwise constitute an infringement
of the right in question. Legitimate aims/public interest are:
Article 8: right to respect and private family life
o Qualification: public authorities can intervene ‘in interests of national security, public safety,
or the economic well-being of the country, for the prevention of health or morals, or for the
protection of the rights and freedoms of others’.
Article 9: freedom of thought, conscience, and religion
o Qualification: public authorities can intervene ‘in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the rights and freedoms
of others’
Article 10: freedom of expression:
