The Convention for Safeguarding the Human Rights and Fundamental Freedom of the EU Citizens

Introduction

The convention for safeguarding the Human rights and fundamental freedom of the EU citizens was drawn up by the European council in November 4th 1950 and enforced in 19531. The convention represented the first steps of enforcing collective Human rights and fundamental freedom. Besides setting up a list of civil and political rights and freedom, the convention laid down a mechanism for enforcing the obligations entered into by signing contract with the member states2. The convention gave the following institutions the responsibility of ensuring the rights and freedoms of the European citizens are not contravened by the member states. These are the European Commission of Human Rights established in 1954, the European Court of Human Rights established in 1959, and the Committee of Ministers within the EU council which is composed of the foreign affairs ministers of the EU member states or their agents3.

Article 2 of the European Convention on Human Rights and Fundamental Freedoms deals with citizen’s right to life and has the following provisions. It requires each and every individual’s right to be protected by the laws of the member state4. This provision bars intentional deprivation of an individual’s life except for execution in the court of law for crimes committed which are also stipulated in the convention5.

The convention acknowledges the following circumstances under which life can be taken accidentally: Self-defense or defending of any other person from unlawful violence, effecting lawful arrest or preventing a convict from escaping from the custody, and other actions taken with the aim of control a riot of rebellion6. However, the ratified Article of the convention abolishes death penalty and executions and calls for all member states to embrace it. During the 62nd session of the EU general assembly, all members adopted the third committee resolution to suspend the use of death penalty (69/149)7.

Problem areas arising from article 2 of the European Convention on Human Rights

The fundamental objective of article 2 is to safeguard individual citizens from illegal killings and other real threats of life by virtue of two main elements. These are the general obligation of the law to protect the right to life and the limited circumstances under which the state agencies can deprive a person of his/her life. Allegations of the violations of the article 2 of the convention were the function of the EU Commission on human Rights before it passed it on to the EU Court of Human Rights. EU Court on Human Rights passed its first judgment in 1995 on the violation of article 2. Since the numerous judgments have been established (about 53 by the year 2005) and while the rest thrown out due to insufficient evidence or failure to follow effective procedural investigation into the loss lives8. However, these judgments only involved a small number of the EU states with the highest violations being recorded in Turkey followed by Bulgaria9. Other countries included in this list are United Kingdom and Russia10. However, while the legal philosophy on this 11provision has grown faster, and is among the prosperous and most vibrant in all the Court’s case law, many questions related to right to life have yet to be assessed by the court. This has left a lot room for creative litigations on matters related to the same subject12.

There are a number of issues that have arisen more often in these cases. The first issue is the examination of whether or not the killings are attributed to the state agents, because there are some criminal elements who pose as state agents. If it is true that the state agents were involved, the court has to take into account whether the use of force by the state agents falls under the one of the exemptions of article 2 and whether it was necessary to use force at that particular circumstance. To answer the first question, the court has to examine all the facts and evidences provided before it to ascertain whether the state is responsible beyond reasonable doubt for the killings. The answer to the second question entails examination of the relevant information to ascertain the use of lethal force and the involvement of the state agencies in the planning and organization of the operation that led to the loss of life13.

The judicial system has to take into account issues that safeguard citizens of a nation’s life. The extent of this obligation encompasses the risk posed by other criminal elements besides the state agents. Lastly, state has to establish whether the state failed to investigate the effectively the death of the individual killed illegally. Although the court has the responsibility of carrying out its own investigation, it also has to follow the procedural aspect of article 2 that necessitates investigation of the effectiveness of the domestic legal systems and procedures safeguarding the right of each individual’s life.

Article 2 protects individuals from being expelled to countries where they are bound to face severe risk of life, whether by states or by non-state agents14. Therefore, states that deports or extradite individuals to other countries where there exist genuine threat to their life violates article 2 of the convention15. For instance, Ocalan v Turkey (2005), the claimant alleged that he had been deprived of his freedom and liberty in Kenya by the Turkish government16.

In the case of Pretty v United Kingdom (2002), the applicant argued that the right to life under article 2 included right to die, but the court rejected this statement17. The applicant was suffering from a motor neuron disease which left her paralyzed in nearly all parts of her body. People suffering from this disease eventually die from suffocation since the disease has no cure. The applicant wanted her partner to assist her in committing suicide but her partner feared the risk of criminal sanction.. Therefore, the Court concluded that article 2 could not, without alteration of language, be interpreted as granting the diametrically opposite right: the right to die. The court however, acknowledged that these kinds of questions could results to issues within the scope of article 8 of the convention. Article 8 includes the respect to private life18.

Conclusion

Article 2 of the Human Rights has faced many challenges ranging from the interpretation of its clauses in relation to other articles within the Human Rights domain, to the verification of the facts and evidence availed before the court proving beyond reasonable doubt the violation of article 2 of the convention, and the bureaucracy associated with the EU Court of Human Rights. The original article 2 of European Convention of Human Rights has been amended several times since its establishment in 1950 and now it covers a wider scope. This has resulted in a lot of complications in the interpretation of this article.

Bibliography

Apap, J., Infringement of the European Convention on Human Rights by Belgium, CEPS policy brief, No. 12, 2002.

Case of Öcalan v. Turkey, ‘Application no. 46221/99,’2005. Web.

Case of Pretty v The United Kingdom,’ European Court of Human Rights’, Application no. 2346/02, 2002

Official Journal of the European. Web.

Doc. 10774, ‘paragraph 86’. Web.

European Convention, Plenary Session, 2002. Web.

European Court of Human Rights, Annual Report 2002. Web.

European Court of Human Rights, Death penalty factsheet. Web.

Guild, E., The Legal Framework of EU Migration’, Working Paper No. 2, Pemint. Web.

Harris, D.J., O’Boyle, M., & Warbrick, C., ‘Law of the European Convention on Human Rights. Oxford: Oxford University Press, 1995.

Human Rights Reports – Russia 2006 and 2007, 2008. Web.

Jacobs, F.G., The EU charter of fundamental rights and the European Court of Justice. Web.

Korff, D., ‘The Right to life: A guide to the implementation of the article 2 of the European Convention on Human Rights’. Strasbourg, Council of Europe, 2006.

Marty, D., ‘Legal remedies for human rights violations in the North-Caucasus Region’. Web.

PACE Resolution 1738, “Legal remedies for human rights violations in the North Caucasus,” .Web.

Resolution 1479, Web.

The European Convention on Human Rights and it’s Five Protocols. Web.

UCL Human Rights Review 2ND Edition. Web.

UK Parliamentary Human Rights Group Report,  2010. Web.

Van Dyke, P., & Van Hoof, G., ‘Theory and Practice of the European Convention on Human Rights,’ 1998. Web.

Footnotes

  1. European Court of Human Rights Annual Report 2002. Web.
  2. UCL Human Rights Review 2ND Edition. Web.
  3. Harris, D.J., O’Boyle, M., & Warbrick, C., Law of the European Convention on Human Rights.Oxford: Oxford University press.1995
  4. Charter of Fundamental Rights of the European Union no. 2000/C 364/01. Web.
  5. Jacobs, F.G., The European Convention on Human Rights, the EU charter of fundamental rights and the European Court of Justice. Web.
  6. The European Convention on Human Rights and its Five Protocols. Web.
  7. D. Korff, D., The Right to life: A guide to the implementation of the article 2 of the European Convention on Human Rights. Strasbourg, Council of Europe.2006.
  8. European Court of Human Rights Annual Report 2002. Web.
  9. Doc. 10774, paragraph 86’. Web.
  10. European Court of Human Rights, Death penalty factsheet. Web.
  11. Human Rights Reports – Russia, 2006 and 2007. Web.
  12. Apap, J., Infringement of the European Convention on Human Rights by Belgium’, CEPS policy brief, No. 12, 2002
  13. European Court of Human Rights Annual Report 2002. Web.
  14. E., Guild, ‘The Legal Framework of EU Migration, Working Paper No. 2, Pemint, 2002.
  15. Resolution 1479. Web.
  16. Case of Öcalan v. Turkey. Web.
  17. Case of Pretty v. The United Kingdom [European Court of Human Rights], Application no. 2346/02, Strasbourg, 2002
  18. European Court of Human Rights Annual Report 2002. Web.

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