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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. o 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: i. Definitional: Is the right engaged?
ii. 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 illtreatment 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'. o Whether this threshold is met must be viewed from both an victim-focussed and agent-focussed perspective. o 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. o 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. o 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. o 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). o 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. o 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. o Article 2 not absolute.
? Reconciles the distinction between: i. Distinction between positive and negative obligations: principally, negative rights trump positive rights when two instances of the same (absolute) right conflict; ii. 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.
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