Twilight of Human Rights and the European Court
Committed a crime outside Europe to get enough on the European continent in order to avoid extradition
Judge of the European Court of Human Rights from Ukraine Anna Yudkivska :
Ukraine signed the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was born as a result of the atrocities of World War II , to these terrible events will not happen again. Today’s understanding of human rights goes much further than what is meant by this definition, 60 years ago, after the genocide, concentration camps, apartheid, colonialism and dictatorship. Today, human rights seek to cover almost all aspects of everyday life, blurring the clarity of the basic rules. And this erosion makes it impossible for the government to provide the relevant law.
The original idea was to proclaim a certain set of basic rights, and not to dictate the entire system of moral principles . Researchers say the Convention, that her parents had seen the document solely as an interstate pact against totalitarianism, and not a real system as it operates today. I think that they could not imagine the existence of the European Court of Human Rights, 60 thousands of cases pending. Of course, we can not freeze the state of affairs that existed 60 years ago. And it is well known that the evolutionary interpretation of the concept of efficiency have played a central role in the practice of the Strasbourg Court in the first days of existence. But todaythe boundary between the evolutionary interpretation of human rights and inflation became too fuzzy.
Even before the post-communist states joined the Convention in the 90 years, it has already proved its worth, the ability to change things for the better or to become a navigation system for the promotion of justice. Evolutionary interpretation applies even then – it was one of the first decisions. 40-year-old Paul Marx was incredibly happy when I realized that she was pregnant, even though she knew that he would raise him herself. Imagine her surprise when, in the hospital reported that according to the law she should adopt him as a child born out of wedlock. Moreover, this child does not have the right to inheritance.
A woman wrote a letter to the European Court, referring to the eighth article of the Convention (right to respect for private and family life). The Court said: You are not a victim of a violation of the Convention, your rights are not violated by this law. Paul Marx was not a lawyer, but was a journalist, and wrote a second letter to the European Court – on behalf of his daughter. “Hello, my name is Aleksandra Marks, me 10 months, I hope that such an esteemed court there at least some rights for such a small child, like me.” The court examined the case and found that the Convention must be interpreted in the light of today’s realities.
This decision was not taken unanimously, some judges disagreed, saying that the founders of the Convention, in principle, do not engage in illegitimate children. Otherwise, they argued, the Convention would be borrowed from a similar rule of the Universal Declaration of Human Rights, according to which all children born in or out of wedlock, enjoy the same social protection. Although today it seems to us that the decision in this case was obvious.
So how do you avoid the inflation of human rights? Of course, there are a number of evolutionary trial standards, they are quite obvious, as are the predictable response to the development of society. For example, the right to respect for correspondence and shelter, of course, apply to the e-mail exchange. Trafficking for sexual or other exploitation, of course, covered by the concept of “slavery”, prohibited by Article 4 of the Convention. However, there are a number of other standards, causing a lot of debate. Say the authors of the Convention in the 50s and the States which have signed it, could not even imagine that Article 8 be construed as guaranteeing specific environmental rights and access to information protected by the state, over which the court has a controversial practice.
Such a debate is not unique to the European Court of Human Rights. Of course, the constitutional courts are also faced with the necessity of the evolutionary interpretation, because it is clear that society is changing. And the US Supreme Court Justice Stephen Breyer in his latest book proposed six constitutional interpretation tools: text; the history of the text; tradition (as the text has been used earlier); precedent; purpose of the provision; effects. Stephen Breyer said that US judges are divided into those who use all six principles of interpretation, and those who use the first four. I can say that this is true for the European Court of Human Rights judges.
Thus, the key issue with which the Court is faced whenever it comes to new issues, is: Does living tree doctrine is to introduce a new interpretation to the scope of the rights guaranteed by the Convention, or whether it goes much further than what it was intended parents-drafters.
Article 3 of the Convention – the absolute prohibition of any abuse of human behavior, which does not allow any exceptions, even in times of war and emergency. Article 8 – right to respect for family and private life – which a priori implies a certain relativism and growth in harmony with the development of society.
The third article says that no one shall be subjected to torture or degrading treatment. The drafters of the Convention once ruled in this question the possibility of any of relativism or the state borders of discretion. Interestingly, the first living tree doctrine has appeared in “Taer against the United Kingdom”. After a fight in class teenager decided to punish – 15 strokes with rods. The Court acknowledged that this institutionalized violence is an attack on human dignity. And this did not agree it was the British judge, saying, sorry, I grew up in this system, we have got used to this, it is absolutely normal for a teenager – to be beaten with rods. But the majority disagreed, and said that the Convention – is a living instrument which must be interpreted in the light of present conditions, therefore, such evidence inadmissible.
Case “Ireland against the United Kingdom” – this is the first inter-state case in court. The court studied the five methods in-depth examination: putting the bag on his head standing against the wall with his hands above his head, being under the influence of noise, deprivation of sleep, food and beverages. The court said that the combination of these techniques have resulted in inhuman and degrading treatment, but did not reach the threshold of deliberate inhuman treatment causing very serious and cruel suffering to qualify it as torture. This is 1978. Today, the European Court of Justice a new business – “Ireland against the United Kingdom”Where Ireland claims that it was a false conclusion based on incorrect information provided at the time by the British government. Ireland requires the Court to reclassify the five methods of in-depth examination in the torture.
Case “Mikheyev v Russia” . The applicant was charged with murder and rape of a girl who later turned out to be alive and completely returned home unharmed. He was tortured, tortured him – cling clip on the ears, through which an electric current was, I read that this torture in Russia is called “call to Putin.” He was threatened that the same would tie clip to the genitals and empty talk. He could not stand the abuse and attempted suicide, she jumped out of the window, left permanently disabled. In this case, the court found that it was clearly torture.
Case “Slesarev against Russia” . In the applicant’s vision 3.5 diopters while in police or during the arrest of broken glasses. New glasses gave him only five months. He argued that just because of this five months his eyesight worsened to -5. The court disagreed, because there was no medical records, however, pointed out that since the failure of new points were not due to a practical necessity, this behavior reaches a humiliating level in accordance with Article 3.
Known case of the slap in the face – “Bhuidhe in the distance against Belgium”. His backstory is. The area where ongoing constant skirmishes with the police. By the way, this is quite a common story for most European cities. When the police not to call there in principle, and, of course, people enjoy a certain impunity. This family Bhuidhe in the distance was known to the local police. When they were arrested again, they behaved in a police station is absolutely inadequate, insulted the police. In order to bring them to their senses, the police slapped and one second. Of course, no one justifies the actions of the police, is another question: how it reaches the threshold of Article 3 of the Convention. Our section with one voice against decided it does not reach. We do not condone the police, but not every inhuman treatment reaches the third article. The case was referred to the Grand Chamber, where the majority noted that slap, applied a law enforcement officer, it was under his control, it is a serious attack on human dignity, because such a blow on the face affects the part which man expresses individuality, manifests their social identity and which is the center of emotions. Slap a significant impact on the person who receives it. It is quite enough that the victim was humiliated in my own eyes, in order to be considered a humiliated in the meaning of Article 3. The minority judges in no way endorsing the actions of the police, however, ask whether any intervention in dignity is degrading and violates Article 3. They said that because such a blow on the face affects the part which man expresses individuality, manifests their social identity and which is the center of emotions. Slap a significant impact on the person who receives it. It is quite enough that the victim was humiliated in my own eyes, in order to be considered a humiliated in the meaning of Article 3. The minority judges in no way endorsing the actions of the police, however, ask whether any intervention in dignity is degrading and violates Article 3. They said that because such a blow on the face affects the part which man expresses individuality, manifests their social identity and which is the center of emotions. Slap a significant impact on the person who receives it. It is quite enough that the victim was humiliated in my own eyes, in order to be considered a humiliated in the meaning of Article 3. The minority judges in no way endorsing the actions of the police, however, ask whether any intervention in dignity is degrading and violates Article 3. They said thatthe court may set up unrealistic standards, making the minimum requirements of meaningless cruelty .
In the case of “Winter against the United Kingdom”Court interpreted Article 3 as requiring revision of the sentence of life imprisonment, the procedure allows the internal organs of state authority to consider, so there are significant changes in the applicant’s behavior that continued detention can not be justified on legitimate grounds. In other words, as a very elegant noted my colleague Judge Power, Article 3 includes the right to hope. Hope, she wrote, it is an important aspect of the human personality. Deprivation hope will deny a fundamental aspect of humanity is degrading. This is a completely new approach to the concept of human dignity on this article of the Convention. But subsequent court cases have shown that we go a little further than just giving the right to hope.
The case “against Belgium Travels”. Here we consider the new interpretation of Article 3 in the context of extradition. Travels lord accused of that occupied one of the key positions in the “Al-Qaeda”. He was convicted of terrorism in Belgium, he spent 10 years, then the United States demanded his extradition for purposes of criminal proceedings against him, which lasted in the United States. Now, in this country there is no possibility of parole for prisoners for life, there is only one opportunity a presidential pardon. But at that time, and it was in 2010, the president has not spared a single terrorist. Obviously, this is due to a small period of time that has elapsed since the events of 11 September. However, given that the President pardoned a single terrorist,
Frankly, I do not agree with this approach and wrote a dissenting opinion. I think that this tool of the six interpretations mentioned by Stefan Breuer, was not used by my colleagues. Because the practical implications of this approach are as follows: any person who has committed a crime outside of Europe, is enough to get to the European continent in order to avoid extradition possibilities . A sentence of life imprisonment is provided for a large number of serious offenses. But the system of early release – it’s only European institution, and not even in all European countries it is. And outside Europe, it is in a very small number of countries. In this way,we are trying to impose on the rest of the world standards we have set for Europe, and this, by the way, contrary to the Court’s own position, which he had previously stated in another case.
The Convention does not require the Contracting Parties to impose its standards of a third State, and does not require the expelling State to review, in line with the Convention, all aspects of the procedure in the receiving State. The reverse will stop the trend of strengthening international cooperation in the field of justice and risks turning international instruments into the empty words to the detriment of the persons whom they protect.
I agree with this position. And by the way, in Travels, in which the court reconsidered its previous approach to the extradition of a person who threatens to treatment incompatible with the requirements of Article 3. Because we used to say, well, here’s an article 3 – it is for Europe a certain threshold. In other States, we prohibit expulsion only in the event that the person at risk of torture. We can not prohibit the expulsion or extradition of a person if there is a risk of other behavior – contrary to Article 3. In this case, we said no, we do not gradiruem Article 3 – any behavior contrary to it prevents the extradition. If a person runs the risk of becoming a victim of domestic violence, it prevents expulsion. And no person in situations where the Sharia, with its institutionalized domestic violence, it is impossible to send.
At the same time, the scope of fundamental rights must be protected against the trivialization. As noted by Professor Verdirame, “if we add new rights, new requirements, which are recognized as the most important – every time we do it, we will blur the concept of what is really fundamental.”
Lord Hoffman, a former judge of the Supreme Court of the United Kingdom, one of the most prominent critics of the European Court, has always spoken very sharply. He said: “The tragedy is that the very concept of human rights trivialize silly interpretations of great ideas.”
I remember when the matter came “Selmouni against France” , France was crazy scandal: how so? We made that our country, which stood at the origins of the Convention, it was the violator of fundamental human rights! Today, we make a number of decisions on Article 3, that, unfortunately, the state stopped paying attention to it.
With regard to Article 8, it must be noted: this provision has become quite an inexhaustible source of various rights, privileges, that the parents of the Convention has never had in mind.This is an absolute expansion of the interpretation of article creates a false impression that any tendency of a person to a better social life can be interpreted through the concept of human rights. On this occasion, I want to quote the Czech-French novelist Milan Kundera: “The more the struggle for the benefit of human rights is becoming popular, the more it loses its specific meaning, becoming a kind of universal position of each in relation to the whole, the world has become a human right and all it was right: the desire to love – the right to love, the desire to rest – the right to rest, the desire for friendship – the right of friendship … a desire to shout in the street at night – the right to shout in the street “(” Immortality “, 1990).
The eighth article of the Convention was conceived as a ban on interference in family life in order to prevent a whole range of Nazi, Communist and inquisitorial practices, interventions in housing and privacy. Now the eighth article of the Convention was the inexhaustible source of various positive and negative obligations, which we can express in a very vague notion of “private life”. Today it is the position covers a bunch of different interests: the environment, career issues, access to artificial insemination techniques, the ability to get a dose of drugs for suicide – is also covered by the eighth article of the Convention.And many other aspects of the physical and social identity of the individual, including the right to personal autonomy, personal development, the right to establish and develop relationships with other people. In other words, everything that a person believes it is important for themselves. And, of course, the eighth article, for example, covers the father’s right to know the origin of his child and the child’s right to know their origins. Of course, this affects the relationship between father and child. The fact that it concerns the private life, no doubt about it.
Case “Kalacheva against Russia” : a woman filed a lawsuit to establish paternity of her child. DNA examination showed that 99% of this man is his father. A Russian court has not taken this into account. He came to the conclusion that, despite the result of the examination of DNA, the child can not be the child of the man, because the man at the same time, another child was born to his legitimate family. This woman approached us, saying that she needed to know who is the father of the child.
At the time, the European Court Paula Marx said that for women the recognition of the genetic father of her child “in addition to financial and emotional goals may also be important in terms of the social image of the applicant, her family medical history and a network of interwoven rights biological mother, father and baby ‘ .
Case “Guliot against France” . The pair wanted to give his daughter a very nice name – Fleur de Marie – but the French authorities have for some reason not allowed. The plaintiff complained to the European Court on the eighth article of the Convention, noting that “the choice of the name of the child is a personal emotional issue, so is in the private sphere.” Again, there is no denying that this is important, but we say that the Convention guarantees the fundamental rights.
In 1998, in the case of “P. against Austria,” the court refused to recognize the impossibility of discrimination for a man to be on maternity leave for child care. After 14 years in the case of “Markin v Russia,” the court changed his position and said: “Yes, it is true that the eighth article never guaranteed the right to parental leave and did not impose on the state the obligation to pay compensation for child care. However, allowing one of the parents to stay at home to care for children, parental leave and related benefits contribute to family life. ” That is, it falls under the scope of protection of the eighth article of the Convention. Again, the Convention has never had to ensure the socio-economic rights.
Case “Parilli against Italy ‘of frozen embryos. After her husband died, she gave up the idea to give birth to these children. She decided to give frozen embryos for research. What does it mean to pay for research? It means to destroy them. Any legislation prohibits research on embryos and their destruction. Or if you become pregnant these embryos, or they die a natural death many years later. A woman complained to the Court that such a ban is a violation of her rights guaranteed by the eighth article, the interference in her private life. One explanation that she gave: “I want to have a noble feeling that medicine has helped.” The Court found no violation of this article, most recognized be the use of the minority, including me, said that, since we are not talking about its potential motherhood, we are not talking about her private life.
But the most vivid illustration of the fears of Milan Kundera that today any human desire to be construed as a human right, as for me, is the case of “Dubskaya and Krezava against the Czech Republic”Which considers the Grand Chamber since the applicants did not agree with the decision of our chamber. Two women who have had the experience of having children in hospitals in the Czech Republic, dissatisfied with conditions, have decided that they want to give birth at home. Czech lawmakers do not want to take responsibility, and prohibits medical care during childbirth at home. Apparently, because for such a serious intervention as childbirth at home, there must be a certain socio-economic support. In countries where it exists, is, in particular, the following rule: the distance between the home of the mother and the hospital must be such as to overcome it can be no more than 15 minutes. Here in Kiev it is almost impossible. Therefore, the legislator is easier to prohibit than to provide. Women turned to the European Court.
First considered the issue of application of Article 8. The majority of the House has decided that deliveries concern an intimate aspect of private life of the mother and cover issues of her physical and psychological integrity of medical intervention, reproductive health and the protection of information related to health. Decision regarding birth circumstances, including the choice of place of birth, falls within the scope of private life of the mother for the purposes of Article 8. I personally disagreed. As a woman who has given birth to two children, I understand all the psychological comfort of opportunities to have a child at home. As a lawyer and a judge of this court, I do not understand, and here the Convention, which deals with fundamental rights. Article 8 covers the values needed for human dignity, personal autonomy, integrity, privacy.the level of comfort sought by the individual. Of course, here we are talking exclusively about the socio-economic policy of the state, where, in my opinion, the Court has limited the possibility of intervention. However, the case was referred to the Grand Chamber, and such a procedure – it is always an incredible flow of human resources and time. Therefore, the case dealt with by the Grand Chamber, relate to very serious aspects of the interpretation of human rights. It seems that this is a serious aspect, and 15 non-governmental organizations appealed to the court for what they want to enter as a third party, from different sides.
All this shows how far we have moved today from the understanding that such a fundamental right. Where is it that we have a limit of this living tree, which ends with an evolutive interpretation of the Convention, and where human rights are transformed into its opposite? Of course, we know that our rights end where the rights of others begin, and the court is looking for a balance between different rights, placing them on the scales. Of course, we do it when it comes, for example, about the opposition of the right to freedom of expression and the right to reputation. There are rules that are very difficult to weigh because they are not comparable at the level of intervention and the level of fundamental nature.
Case “Wai against Slovenia” . It is assumed that the applicant was a victim of rape. During the trial of her alleged rapist, he is finally acquitted, he asked her some questions, which were, of course, she was unpleasant. She complains that the fact that the court did not take off these questions, constituted an interference with her rights guaranteed by Article 8 of the.
practicing lawyersare well aware that such a rape case. The accusation is based largely on the testimony of the victim, and in such cases very often the line of defense is to show that the applicant was not a victim, that she deliberately misleading law enforcement agencies and the courts. Among the questions asked by the defendant she was like, is this: is it true that you told me that you can just pick up and no reason to cry, and you all believe? I understand that perhaps it was nepriyatnyyvopros, but in contrast, her right to privacy, the right not to receive unpleasant questions were basic human right to a fair trial. Right guaranteed by Article 6 of the Convention for the examination of witnesses, including the victim. Man threatens a serious sentence, because rape is a serious crime. Its right not to receive unpleasant questions, and its right to protect themselves from such charges – are comparable whether these rights? The Court, by six votes taken her side.
And one more thing, which is continuing its consideration. The case against Hungary and Azerbaijan. The case is really shameful. A few years ago during NATO exercises in Hungary Azerbaijani military brutally murdered his Armenian classmate. Azeri was a refugee from the area adjacent to Nagorno-Karabakh. He was tried in Hungary, the sentence – life imprisonment. He spent 9 years, then Hungary on the Convention on the Transfer of Sentenced Persons gave it to Azerbaijan for further punishment. And then came the infamous story. A few hours after the plane landed with him in Baku, President of Azerbaijan has pardoned him, he restored his military rank and salary for all these 9 years.
Now, the European Court of relatives guy complain, whom he killed, and said that the two countries – and Hungary and Azerbaijan – have violated the second article of the Convention – the right to life. Because, let it free, they have created an atmosphere of impunity for such violations. The matter is now under consideration.
Please note, some question the Court asked the Government of Hungary: “Could it be assumed Hungary, transferring a person to serve a further sentence that he be pardoned?” He served 9 years. Remember the case Travels, Belgium could not pass it on to the United States, because there in recent years, the president pardoned a single terrorist. Where you ask the question, and you can assume that his 9 years pardon? Whether the Convention guarantees the right to sentence someone to life imprisonment? I can not comment on the case, I do not know all the circumstances that will be clarified in the review process, but, again, the question arises: where is the human rights turn into its opposite?
How do we set up the navigation system so that it led us to peace and justice, judges must interpret the Convention in order to avoid the danger of inflation?
Poser Eric (USA) published a book with a very pessimistic entitled “Twilight of human rights.” He said that “human rights are ineffective or less effective when there are too many rights.” “When there is a lot of rights, the state can justify its failure to respect the right one, insisting that it has exhausted the financial and political resources, trying to secure other rights.”
Sourse, 25/03/2016
