Slide 1

Fundamental (Human) Rights Lesson four and five

Slide 2

Why human rights? Violation of human rights > violence, restraint of freedom, poverty, bad environment, wars Fundamental right apply to all people, to citizens, to foreigners, to minorities but generally rights of every human being that are: 1)inalienable nobody can transfer (sell, donate) their human rights to a third person 2)irreversible nobody can cancel them, no steps back 3)imprescriptible once you enjoy them, you enjoy them forever despite not using them all the time

Slide 3

Basic principles Everybody is allowed to do what is not prohibited by the law State and public bodies are allowed to do only what is precribed by the law Obligations can be imposed only pursuant to the law (=statute) and with due respect to fundamental (human, civil) rights and liberties People are free and equal in dignity and rights Fundamental rights and liberties are provided to everybody without any regard to sex, race, colour of skin, language, religion, political opinions, ethnical or social origin, property, descent or similar position

Slide 4

Generations of human rights 1. generation (rights of human being, need to be guarded by the state) - right to life, right to physical integrity, liberty and security of person (no slavery, freedom of movement, thought, conviction), right to human dignity (no torture), right to human equality 2. generation (rights of freedom, civil and political rights, need tolerance by the state) - freedom of speach, freedom of meeting, right to a fair trial, right to participate in political matters, non dicrimination

Slide 5

Generations of human rights 3. generation (rights of equality, social, economic and cultural right, need action by the state) - right to decent standart of living, right to labour, right to participate in labour unions, right to health care, right to education 4. generation (rights of solidarity, collective rights, need action by all states and people in the world) - right to sustainable development, right to peace, right to good environment

Slide 6

Restriction of fundamental rights Only due to important reasons and only in necessary extent Restriction must be equal Some rights are naturally restricted depend on economic and social conditions e.g. right to life but killing in war, killing in selfdefence is not excluded e.g. right to ownership but must respect ownership of others, must not damage health, environment or nature

Slide 7

Legal texts on fundamental rights 1) International Bill of Human Rights - Universal Declaration of Human Rights (1948) - International Covenant on Civil and Political Rights (1966) - International Covenant on Economic, Social and Cultural Rights (1966) 2) European Convention on Human Rights and Fundamental Freedoms 1950 3) National constitutions national bill of rights 4) Various other international treaties - Convention on the Rights of the Child - Convention Against Torture - Convention on the Elimination of All Forms of Racial Discrimination - Convention on the Elimination of All Forms of Discrimination Against Women - Convention on the Rights of Persons with Disabilities - a lot of regional treaties

Slide 8

Right to life Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a) in defence of any person from unlawful violence; b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Slide 9

Right to life - HUGH JORDAN v. UK (2001) Shooting: unarmed driver shot and killed by police in Belfast Court finds shortcomings in proceedings for investigating the use of lethal force by the police officer: 1) lack of independence police officers investigating incident from the officers implicated in incident; 2) lack of public control, and information to the victims family 3) police officer who shot the drive could not be required to attend the inquest as a witness; 4) absence of legal aid for the victims family and non-disclosure of witness statements prior to their appearance at the inquest 5) inquest proceedings did not commence promptly and were not pursued with reasonable expedition.

Slide 10

Right to life - right to die? Is the refusal of a state to let someone die (forced feeding of hunger strikers) or the prohibition to assists someone who cannot commit suicide (but claims right to a decent life implying a right to choose death?) violation of right to life? - > does right to life include right to death (euthanasia)?

Slide 11

Right to die? - PRETTY v. UK (2002) 43 year old woman with Motor neurone disease Paralised from neck down, no decipherable speach, tube fed Life expectancy weeks or months Physically incapable of suicide Asks for a guarantee her husband will not be prosecuted for mercy killing (assisting her in dying) UK institutions say they cannot give such a guarantee (because assisted suicide is criminal under UK law)

Slide 12

Right to die? - PRETTY v. UK (2002) 1)Individual may refuse to accept life-prolonging or life- preserving treatment: The principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so... To this extent, the principle of the sanctity of human life must yield to the principle of self- determination... 2)Also recognised that dual effect treatment can be lawfully administered - treatment calculated to ease a patients pain and suffering which might also, as a side- effect, shorten their life expectancy.

Slide 13

Right to die? - PRETTY v. UK (2002) Pretty: - some countries allow assisted suicide (NL) - does not protect life, but right to life: freedom to choose not to go on living UK goverment: - no right to die, there are only positive obligations of government intended to protect life Court: - no right to die can be derived from text from the Convention, but member states can do it differently in their national legislation (not for Pretty, UK prohibits it)

Slide 14

Right to life when does life begin? VO v. France (2004) Mrs Thi-Nho Vo was pregnant, was of Vietnamese origin, does not speak French well She was waiting in the room of gynaecology because she was due to have coil (anticonceptive spiral) removed Was called in for removal of coil, the short interview (language problem), doctor starts removal, but he pierced amniotic sac (-> loss of amnaiotic fluid) Operation only stopped on operation table, but as a sideeffect, foetus (unborn child) was damaged -> therapeutic abortion becomes necessary (foetus, a baby girl, was between 20 and 21 weeks old, weighed 375 grams, was 28 centimetres long, had a cranial perimeter of 17 centimetres and had not breathed after delivery)

Slide 15

Right to life when does life begin? VO v. France (2004) VO: - unintentional injury to the her entailing total unfitness for work for a period of three months + (!) unintentional homicide of her child Court: - unborn child is not regarded as a person directly protected by the Convention and that if the unborn do have a right to life, it is implicitly limited by the mothers rights and interests. - not, however, ruled out the possibility that in certain circumstances safeguards may be extended to the unborn child (depends on member state still subject of debate + no European consensus on the scientific and legal definition of the beginning of life

Slide 16

Right to life - discussion Assisted suicide euthanasia? Protection even of an unborn life abortion? Prohibition of death penalty (capital punishment)?

Slide 17

Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. In principle protection of a human being against state and its agents; sometimes obligation of a state to protect individuals against other individuals

Slide 18

Prohibition of torture - NEVMERZHITSKY v. UKRAINE (2005) Does force-feeding of Mr. Nevmerzhitsky while he was on hunger strike amount to inhuman or degrading treatment or punishment or torture? Court: Therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading - > the same can be said about force-feeding aimed at saving the life of a particular detainee who consciously refuses to take food. but: the medical necessity must have been convincingly shown to exist and manner in which a person is force-fed during hunger strike shall be no more than a minimum level of severity

Slide 19

Prohibition of torture - HURTADO v. Switzerland previous information: a member of Columbian drug cartel 5/10 was arrested using stun grenade, force, handcuffs & hood, alleged beating -> soiled clothes, taken to police station, than to prison (clothes changed after 24 hours since arrest) 7/10: asked for doctor by letter (asked as soon as on 5/10 orally), 9/10: saw nurse, 13/10: doctor, 16/10: X-rays rib fracture Court: - was not torture (no inhuman or degrading treatment), police must have broken physical and moral resistance because Hurtado might have been related to gang - he was an adult male in good health and violence not disproportionate to achieve arrest, handcuffs good way of avoiding escape etc.

Slide 20

Prohibition of torture - discussion Corporal punishment in schools ? At home? (prohibited by the Convention!) Forcible administration of food & tranquilizers (sedative medicine) in mental hospital? Spraying detainees and mob with cold water to cool them down? MTV-horror-show? Video-composition to put psychological pressure on subject during interrogation. Pepper spray or electric shock? Expulsion of serious criminals to Somalia?

Slide 21

Right to respect for private and family life Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Slide 22

Right to respect for private and family life - Ldi v. Switzerland (1992) Ldi: - prolonged use of undercover agent, who made use of a personal contact established by deceit to obtain information and influence conduct of Mr. Ldi + used technical devices to gain access to Ldis home and recorded conversations provoked by trickery -> such interference was not in accordance with law Swiss government: - no violation, wiretapping was allowed by judge according to law, use of undercover agents is possible, there is no interference with private life

Slide 23

Right to respect for private and family life - Ldi v. Switzerland (1992) Court: - telephone interception (tapping) was OK, the use of an undercover agent did not affect right to respect for private life because: - there were previous information about sale of drugs - aim of operation: arrest dealers when drugs handed over - Ldi was contacted by another man Ldi said he was prepared to sell 2kg of druggs -> Ldi must therefore have been aware from then on that he was engaged in a criminal act and that consequently he was running the risk of encountering an undercover police officer whose task would in fact be to expose him

Slide 24

Crucial medical decisions to doctors or relatives? GLASS v. UK (2004) Carol and David Glass, are both United Kingdom nationals. David 1986, is severely mentally and physically disabled and requires 24-hour attention. Ms Glass is Davids mother and legal proxy. July 1998 David admitted St Marys Hospital (Portsmouth) Following an operation to alleviate an upper respiratory tract obstruction, David suffered complications, became critically ill and had to be put on a ventilator. During his treatment, Ms Glass was informed by hospital staff that David was dying and that further intensive care would be inappropriate.

Slide 25

Crucial medical decisions to doctors or relatives? GLASS v. UK (2004) However, Davids condition improved and he was able to return home on 2 September 1998. 8 September 1998, re-admitted to hospital with a respiratory tract infection, doctors discussed with Ms Glass the possible use of morphine to alleviate distress. Ms Glass expressed her opposition, telling doctors that if Davids heart stopped she would expect resuscitation including intubation. Dr W. : not in Davids best interests, a second opinion, if necessary from the courts, needed. Dr H. also noted that in the event of total disagreement we should be obliged to go to the courts.

Slide 26

Crucial medical decisions to doctors or relatives? GLASS v. UK (2004) Davids condition deteriorated. 20 October 1998 the doctors treating David considered that he was dying and recommended that diamorphine be given to him to relieve his distress. Ms Glass did not agree son was dying, very concerned the administration of diamorphine (previously morphine had been mentioned) would compromise his chances of recovery. Ms Glass voiced concerns at meeting with doctors at which a police officer was also present. She subsequently asked to take David home if he was dying, but a police officer advised her that if she attempted to remove him, she would be arrested. David was given a diamorphine infusion at 7 p.m. on 20 October 1998.

Slide 27

Crucial medical decisions to doctors or relatives? GLASS v. UK (2004) A dispute broke out in the hospital involving other family members and the doctors. The family members believed that David was being covertly euthanased and attempted to prevent the doctors from entering his room. The hospital authorities called the security staff and threatened to exclude the family from the hospital by force. A Do Not Resuscitate (DNR) order was put in the first applicants medical notes without consulting Ms Glass. The following day Ms Glass found that her sons condition had deteriorated alarmingly and was worried that this was due to the effect of diamorphine. The family demanded that diamorphine be stopped.

Slide 28

Crucial medical decisions to doctors or relatives? GLASS v. UK (2004) Dr W. stated that this was only possible if they agreed not to resuscitate David. However, the family tried to revive David and a fight broke out between members of the family and the doctors. While the fight was going on, Ms Glass successfully resuscitated David. Police were summoned to the hospital. Dr W. and Dr A. and several police officers were injured and all but one of the children on the ward had to be evacuated.

Slide 29

Crucial medical decisions to doctors or relatives? GLASS v. UK (2004) Davids condition improved and he went home on 21 October 1998. Ms Glass applied unsuccessfully for judicial review and permission to appeal to the Court of Appeal concerning the decisions taken by the hospital authority. General Medical Council: doctors involved not been guilty of serious professional misconduct or seriously deficient performance and treatment complained of had been justified. Crown Prosecution Service: no charges against doctors involved for lack of evidence. Court: - Decision authorities to override Ms Glasss objection to the proposed treatment in the absence of authorisation by a court resulted in a breach of Article 8.

Slide 30

Problems of enforcement you must take national procedures first before you go to european court