#13579 - Absolute Rights - European Human Rights Law

Absolute Rights

Three ‘absolute rights’ are found in the Convention:

• Article 3 – no-one shall be subjected to torture of to cruel, inhuman or degrading treatment or punishment.

• Article 4(1) – no-one shall be held in slavery or servitude.

• Article 7 – no punishment without law.

What does it mean to speak of an ‘absolute’ right?

Key elements are usually considered to be:

• Non derogable, meaning no external limitations;

• Unqualified, meaning no internal limitations.

  • Thus, no proportionality or balancing exercise.

On this view, when we speak of ‘absolute rights’ we are conveying the important position they hold in the hierarchy of Convention rights.

Usually two stages to rights interpretation:

1. Definitional: Is the right engaged?

2. Justification: if yes, was the interference proportionate?

It seems that ‘absolute’ must mean the lack of question (ii). However, it is arguable that the question is merely asked in a different way.

• Greer: ‘formally unqualified rights’ is arguably more accurate.

• Arguably, more transparent reasoning would be enabled if it was acknowledged that proportionality reasoning was occurring.

In application in the ECtHR, the absolute nature of these Articles seems contestable:

• Positive obligations are subject to the Osman requirements.

• Proportionality between crime and ill-treatment was a factor in Jalloh.

• Real evidence obtained by inhuman treatment must be causally connected with the verdict in Gafgen.

• Diplomatic assurances were held to have successfully mitigated the risk of ill-treatment in Abu Qatada/a long history of human rights protection in Babar/Harkin.

Can there be ‘absolute’ rights?

Mavronicola uses Guler and Ongel v Turkey to illustrate an approach that allows the existence of absolute rights.

• In the case, the Court considered whether force used by police against protestors during a demonstration was ‘excessive’ and as result not ‘justified’ – such considerations appear out of place.

• Based around the threshold for severity – Ireland v UK: ‘ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3’.

  • Whether this threshold is met must be viewed from both an victim-focussed and agent-focussed perspective.

  • While the level of severity is measurable quantitatively from the victim’s perspective, the agent-focussed perspective involves qualitative considerations based on dignity and agency.

    • Compare the difference between shooting a person to cause pain for the extraction of evidence and shooting a person to prevent them stabbing a third party.

    • Waldron focuses on the purpose of the measures as the distinguishing factor.

• Thus, the Court is merely embarking of definitional considerations as to what counts as Article 3 conduct and terms such as ‘justified’ are used in this evaluative process.

  • Threshold is relative, but once the right is engaged, it is absolute.

My view is that the entire issue depends on the meaning of ‘absolute’.

• All rights are, in a sense, absolute within their certain boundaries – the question is where these boundaries are.

  • Positive obligations, the reciprocal of the right, may have different boundaries and it is this same definitional pursuit that is happening.

• In considering these boundaries from the definitional perspective, this is far less intrusive and prevents intervening with the very ‘core’ of the right.

  • In an absolute right, absolute as soon as engaged; for other rights, still issues of threshold.

• It could be argued that the ‘minimum level of severity’ threshold acts as a tipping point where, on one side, the agent-based perspective is dominant (where contextual, qualitative based considerations are predominant) to a victim-based perspective (where the traditional sense of ‘absolute’ returns).

  • It might be more useful to use Greer’s ‘formally unqualified rights’.

What happens when ‘absolute’ rights conflict?

Greer considers this in relation to Gafgen.

• He considered the main flaw in the case to be a lack of recognition of the rights of Jakob – had he been alive, there would have been a multi-dimensional relationship between the relevant rights.

  • Considers is a conflict between Article 3 right of G in the negative dimension and Article 3 rights of J (in their positive dimension).

• He argues that a series of asymmetries are, cumulatively, enough to justify leniently punishing the officers.

Smet argues that Gafgen is not a genuine example of conflicting absolute rights.

• Not between Article 3 claims, but between G’s negative right to be free from inhuman treatment and J’s positive right to life.

  • Article 2 not absolute.

• Reconciles the distinction between:

1. Distinction between positive and negative obligations: principally, negative rights trump positive rights when two instances of the same (absolute) right conflict;

2. Distinction between direct and indirect agency: in cases of conflicting absolute rights, where the Court is forced to provide a solution, negative rights are open to balancing against positive rights only if interference with the negative rights does not involve treating a person as a means.

Gewirth claims that in these type of situations where the rights conflict, the actor is not response due to a principle of intervention.

• For example, if must torture mother to save lives of many, it is the one forcing this situation that is morally responsible, not the actor.

• Levinson points out that this approach based on causation only applies (if at all) where there is a third party intervener – sometimes these situations may occur naturally, or by the unintended acts of the actors.

Article 4

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:

1. Any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

2. Any service of a military character or, in case of conscientious objections in countries where they are recognised, service exacted instead of compulsory military service;

3. Any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

4. Any work or service which forms part of normal civic obligations.

‘Slavery or servitude’:

Article 1(1) of the Slavery Convention (1926):

‘Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.’

This definition was quoted with approval in Siliadin v France (2006):

• ‘This definition corresponds to the ‘classic’ meaning of slavery as it was practiced for centuries. Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B exercised a genuine right of legal ownership over her, thus reducing her to the status of an ‘object’.’

  • Links to the Kantian concept of people as ends, rather than means.

However, actual legal ownership of another person is not possible, thus a move towards ‘de facto’ slavery has occurred.

• Arguably, a response to defining slavery so highly that it becomes practically useless.

• Allain: ‘instead it is the powers attached to such rights, but for the fact that ownership is illegal.’

In relation to servitude, Siliadin:

• ‘… for Convention purposes ‘servitude’ means an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of slavery described above.’

  • This definition seems a lot like forced or compulsory labour – with such a high threshold for slavery about apparent lowering of servitude, there could be a gap in the middle.

The case law on this area is dependent on positive obligations placed on the State, otherwise it would never reach the ECtHR.

• For example, in Siliadin (where the positive obligation was established), the imposition of servitude was perpetrated by Mr and Mrs B, not by the State.

  • Aspect relevant to a supranational court: ‘… it now falls to the Court to examine whether the impugned legislation and its application in the case in hand such significant flaws as to amount to a breach of Article 4 by the respondent state.’

  • Thus, the Court made a finding of servitude regarding the negative obligation, but then went on to examine whether the state had violated is positive obligations.

    • ‘Slavery and servitude are not as such classified as offences under French criminal law…’

    • ‘The applicant, who was subjected to treatment contrary to Art 4 and held in servitude, was not able to see those responsible for the wrongdoing convicted under the criminal law.’

    • ‘The criminal law legislation in force at the relevant time did not afford the applicant, a minor, practical and effective protection against the actions of which she was a victim.’

• Pitea is concerned that focus on positive obligations may not take protection far enough – to fully protect victims requires more than the mere existence of safeguard, it requires their effective use.

• Is a violation of the negative obligation a necessary precondition to finding a violation of the positive obligation?

  • Court appears to consider that a negative breach is necessary.

  • No – only need to ask (i) what is the positive obligation? (ii) has it been violated?

  • (Article 2): Silih v Slovenia (2009): ‘… the Court concluded that the procedural obligation to carry out an effective investigation...