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STUDENT'S GOPHER
Without copyright, for the use of students
HUMAN RIGHTS AWARENESS
FOR HEALTH CARE PROFESSIONALS
Part 1: Background
Jay Woogara, EIHMS, University of Surrey
INTRODUCTION
On 2 October 2000, the European Convention of Human Rights will be incorporated into the domestic law of the United Kingdom under the Human Rights Act 1998. It will be a day of celebration for civil rights groups as they have waited for fifty years to have such a charter of rights. But, the issue remains, how many health professionals are presently aware of the Convention of Human Rights. There is no doubt that following the implication of the 1998 Act, there is going to be a flood of litigation. The Convention equips the patients and his/her relatives with many types of tools to bring cases against health professionals. Therefore, it is the duty of care of these professionals (doctors, nurses, midwives and all related professionals) to be au fait with the Convention.
The European Convention for the protection of Human Rights and Fundamental Freedoms was signed in 1950 in Rome (4 November 1950), following the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948. The Convention exists independently of the European Community legal system of the European Union which is found under the Treaty of Rome (25 March 1957). The Council of Europe presently administers the Convention, whose membership includes all the Member States of the European Union. In November 1999 it also included 26 other Member States which are signatories to the Convention.
The overall aim of the Council of Europe is to "achieve a greater unity between its members", and one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms. It reaffirms its philosophy that peace and justice are best maintained by an effective political democracy and by a common understanding and observance of Human Rights. By safeguarding and realising the ideals and principles of the Convention which are their common heritage, and facilitating their economic and social progress, future devastating wars like that of the second world war are hopefully prevented among the Member States. However, the scope of the Convention is mainly restricted to political rights. This means that not all rights generally accepted as basic human rights are included within the European Convention. For example, the human rights to education, employment and freedom from hunger and malnutrition have been expressed in a number of international conventions and covenants but these rights are not reflected within the European Convention of Human Rights. Similarly, the rights to health care and benefits of scientific progress do not form part of the convention although many pressure groups would have liked this to be the case.
Despite being a verifying party to the Convention, the United Kingdom government has not yet (December 1999) incorporated the Convention of Human Rights and Fundamental Freedoms within its national law. The implications of this non-incorporation in domestic law have been very costly to many UK citizens who have suffered a breach of the Articles of the Convention and cannot seek redress directly in the domestic courts. To date, and no doubt until October 2000, it has meant that such victims have to make representations to the Human Rights Court in Strasbourg.
MAIN ARTICLES AND THE INSTITUTIONS
Articles 1 to Articles 18 incorporate many of the substantive rights that are found within the Universal Declaration. The Articles include fundamental rights: such as right to life (Article 2), right not to be subjected to torture, or to inhuman or degrading treatment or punishment (Article 3), right to liberty and security (Article 5), right to fair trial (Article 6), right to respect for private and family life (Article 8), right to freedom of thought, conscience and religion (Article 9), right to freedom of expression (Article 10), right to marry and found a family (Article 12), the enjoyment of the rights without discrimination on any ground of sex, race, colour, language, religion, political or other opinion (Article 14).
In order to ensure that Human Rights are respected by the Member States, Article 19 of the Convention initially established two governing bodies. They were:
a) A European Commission of Human Rights which comprises of a number of "members equal to that of the High Contracting Parties",
b) A European Court of Human Rights to police the system.
The Committee of Ministers of the Council of Europe is the third organ of the Convention. This was first established in 1949 and its existence, therefore, antedates the Human Rights Convention. The members of the committee of ministers are, under Article 14 of the statute of the Council of Europe, the ministers for foreign affairs of the Member States. The Committee, as the executive organ of the Council of Europe, is mainly a political organ with administrative, judicial and supervisory functions. It decides on the recommendation of the European Commission or on its own initiative what action to take to further the aim of the Council of Europe.
Article 25 declares that the Commission may receive petitions addressed to the Secretary General of the Council of Europe "from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties". It also states that the parties of the convention should not hinder in any way "the effective exercise of this right". According to Article 26, the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law and within a period of six months from the date on which the final decision was taken.
Since the signing of the Convention in 1950, there is no doubt that there is a greater awareness of the potential of the Convention in seeking redress against the breach of Human Rights. This means that an increasing number of cases are being brought to Strasbourg and there is a danger that the Convention Institutions will be overwhelmed by their own success. For example, the number of applications registered rose from 400 in 1981, 500 in 1983, 700 in 1986, to 2,037 in 1993 and the number of communications sent to Strasbourg has increased annually ever since, reaching a current total of over 10,000 (Survey of Activities & Statistics of the ECHR 1998, Council of Europe) . There are now greater delays for cases to be heard and ever increasing number of staff and resources are required to deal with the backlog of cases. In order to streamline the system on 1 May, 1994 the Eleventh Protocol to the European Convention on Human Rights was signed by the Member States of the Council of Europe in a ceremony in Strasbourg. It entered into force on November 1, 1998.
The aim of this Protocol was to accelerate the proceedings by merging the functions of the European Commission of Human Rights and the European Court of Human rights into one permanent court of Human Rights. There is no doubt that by incorporating the Convention within the UK domestic law from October 2000 great expense will be saved by individual citizens. It will remove the mockery and ethical quandary which has meant that judges have had to implement the principles of the Convention by the back door. Most importantly, it will free the European Court of Human Rights to focus on grave human rights violations from Eastern and Central Europe.
CLICK HERE for Part 2 of this article: PART TWO
Email: r.woogara@surrey.ac.uk