For a better understanding of the ECHR and the provision of rights, it is important that we review a few of the rights within the convention. It is exciting to note that the first article concerns the obligations of all stakeholders (contracting parties) to extend the rights and freedoms contained in the convention. The second article of the convention describes the right to life that is universal to all members of the COE (Echr.coe.int, 2010). This right is, however, not absolute since the court has the mandate to impose sentences fitting the crime of which the convicted person is guilty as per the law. All the forty-seven-member states have a constitution, and with it, they have their laws and penalties. For example, if the penalty for murder in France is death, the ECtHR cannot interfere with the country’s laws and procedures. There are other limitations to this right concerning the lawful nature of lawful arrests, managing a riot/insurrection, and self-defense.
An interesting contrast to this law can be found in the third article that explicitly prohibits the subjection of a human being to inhumane punishment, treatment, or torture (Echr.coe.int, 2010). In the eyes of many activists, capital punishment is an inhumane punishment. This perception of affairs has resulted in a lot of criticism from human rights groups that push for the abolition of capital punishment. This would mean that the convention amends the right to life and make it an absolute right in all member countries. There are also numerous instances where activists have questioned the credibility of the ECtHR regarding reports of torture incidents in different countries within Europe.
The fourth article prohibits slavery and forced labor stating that no individual shall be held in slavery and servitude. However, like the right to life, this right is also limited. There is a provision for the activities exempted from the description of “forced or compulsory labour.” For instance, work done as part of civic obligations is exempt, emergency work, labour within the correctional/detention centres, and any compulsory military service (Echr.coe.int, 2010). In essence, this right is extended to prevent people from forcing other people into slavery but gives significant leeway for the government to lawfully limit people’s rights not to undertake forced or compulsory labour.
Part 2: How the ECHR is applied within the United Kingdom’s Legal system
The UK has three different legal systems for its member countries. There is a legal system for Scotland, Northern Ireland, and England and Wales. The UK’s laws are, and human rights were considered unwritten conventions since there did not exist any document outlining the rights of individuals. Before the development of the Human Rights Act of 1998, the UK had no official bill of rights. The citizens or interest groups seeking to bring any charges against another entity had to contest their case in front of the ECtHR. However, citizens of the UK found it tedious and expensive to keep going to France for the resolution of their legal challenges. This, in turn, necessitated the development of the HRA of 1998 (O’Cinneide 2012). One of the primary purposes of the HRA was guaranteeing the people that the rights and freedoms outlined within the ECHR would be enforced within the UK justice system.
The 1998 HRA effectively made it easier for UK residents to access justice on their human rights within the courts. The HRA comprises of two parts; the first outlined how the rights within the document are to be enforced while the second outlines the rights. The rights within the second part are mainly taken from the ECHR apart from articles one and thirteen. The consensus here is that the development and implementation of the HRA is the fulfillment of articles one and thirteen (O’Cinneide 2012). As an example of the ECHR’s laws, the 1995 case of McCann vs United Kingdom, the ECtHR contended that the member country is obliged to investigate deaths involving lethal force especially if the case is implicating agents of the state. A great debate ensued with Professor Richard arguing that it was an improperly developed statute (Article 2 of the ECHR) (Leverick 2004). However, in the end, the UK had to conduct investigation and this formed a basis for the integration of ECHR into UK Law.
The third section of the Act stipulates that the laws in the UK must be interpreted to the greatest extent possible to ensure their compatibility with the conventional rights. It is upon the court to review the compatibility of parliamentary acts with conventional rights and provide advice on how to progress. However, the UK’s HRA act can only propose amendments to the Parliament, and it is upon the legislature to choose whether to pass or reject the recommended amendments (O’Cinneide 2012). In an ECtHR ruling on freedom of expression case brought by Mr Goodwin against the UK, Journalists were given the right to protect their sources since the court ruled that freedom of expression encompasses the right to receive and share information (Sack 1995). This ruling effectively changed the UK’s Laws on journalism disclosure.