(MT7) Absolute Rights

EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania v Secretary of State for the Home Department [2013] UKUT 313 (IAC)

Domestic worker, severe TB- HELD: positive obligation to put appropriate framework in place- sufficient link- cannot remove with due regard for dignity

Harkins and Edwards v United Kingdom (2012) 55 EHRR 19

Extradition request- distinguish (i) life sentence with eligibility for release after a minimum period, (ii) discretionary life sentence with possibility of parole, (iii) mandatory life sentence without parole- latter not incompatible, but likely to be grossly disproportionate considering mitigating factors

Jalloh v Germany (2007) 44 EHRR 32

Forced emetic- HELD: no medical reason, only to obtain evidence- applicant not selling on a large scale, not necessary to forcibly administer- could public interest be enough to make justifiable?- attained minimum level of severity within Art 3

R v L and Others [2013] EWCA Crim 991

HELD: victims of trafficking involved in illegal activities, sensitive- extent to which offences are integral or consequent on exploitation- culpability diminished but still significant

What is an absolute right?

Judicial term. Art 15 ECHR- derogable bar 3,4(1),7 Art 4/5 CFR- v. similar- added rights e.g. 1 (implicit in Art 4 ECHR?) Art 52 CFR- general limitation- standard should be no less than ECHR, import that standard? Meaning thus problematic- non-derogable (external) OR unqualified (internal)? An apparent hierarchy- yet international covenants hold that all are equally violable.

Gäfgen v Germany (2011) 52 EHRR 1

Kidnapping, threaten physical harm- HELD: SEE NOTES: balance between absolute rights?- an Art 3 violation, not of Art 6

Smet

Negative rights can under certain conditions be outweighed by positive- not where person treated as means to end. J's Art 2 rights Double distinction on (1) negative/positive obligations, (2) direct/indirect agency. Direct agency impermissible, then negative cannot be balanced with positive.

Selmouni v France (2000) 29 EHRR 403

Police custody- HELD: potential to adjust torture threshold- physical force not necessary, living instrument- an evolution of definition, or Ireland v UK wrong?

Greer

Prefer term 'formally unqualified' rights. Gäfgen an exercise of moral judgment- cumulative effect should have supported lenient punishment of officers. Consider J's Art 3 rights- differ from 'ticking time bomb' as certainty of danger. Moral choice- should prioritise victim's rights.

R (Atamewan) v Secretary of State for the Home Department [2014] 1 WLR 1959

Traffic victim protection- HELD: 'victim' if presently or previously so- reasonable grounds, should not remove from territory until identification complete- positive duty to investigate though no complaint- no damages as breach not causative

Siliadin v France (2006) 43 EHRR 16, paras 89-149

Unpaid domestic work on promise of regularising immigration status and education- HELD: positive obligations on the state to enact provisions of criminal law- deficiencies of criminal law, insufficient protection= enslavement w/t ownership

OOO&Ors v The Commissioner of Police for the Metropolis [2011] EWHC 1246 (QB)

Unpaid domestic work, police failed to investigate- HELD: positive obligation to prevent- link to Osman- trigger not dependent on actual complaint but when credible account brought to attention.

Hutchinson v UK (2015) 61 EHRR 13

Violent rape/murder, 18yrs minimum, whole life- HELD: duty to consider in exceptional circumstances enough, failure to revise 'Lifer Manual' irrelevant

Vinter v United Kingdom (2014) Crim LR 81 (Grand Chamber)

Whole life term- HELD: release limited to few circumscribed cases- not practically reducible (s30 CSA 1997)

Trafficking

≠ slavery- a war crime, human rights law hold to be non-derogable. No longer confined to criminal law as in SvF- can go beyond general in requiring prevention of potential breach where state aware of a real and imminent risk to the individual.

Rantsev v Cyprus and Russia (2010) 51 EHRR 1, especially paras 253-309

'Artiste' found dead- HELD: no need to identify which category within Art 4- positive obligation to penalise/prosecute, need a legislative/ administrative framework- procedural obligation to investigate, take operational measures.

Simonsen

(1) Right engaged, (2) proportionate- submit that absolute means that (2) is not asked

Ireland v United Kingdom (1979-80) 2 EHRR 25-

(above)- HELD: hierarchy within Art 3- differ on intensity of suffering- are all non-derogable?

Jovanovich

4(3)- a limitation or qualification?- rather definitional- how to define? A hierarchy albeit undefined. Relatively absolute- relative as only where state aware and fails to discharge, absolute as never justifiable or qualified.

Husayn (Abu Zubaydah) v Poland (2015) 60 EHRR 16

CIA interrogation in Poland- HELD: obligation to ensure those within jurisdiction not subjected to Art 3 infringements- facilitation in creating conditions, no prevention- a substantive Art 3 violation

UK approach

Commoditisation of human beings, globalisation- domestic often overlooked. Non-punishment principle- well-intentioned but ill-conceived, require further classification on rationale and practical implementation.

Othman v United Kingdom (2012) 55 EHRR 1

Conviction in Jordan used evidence from torture, deportation?- HELD: court to assess if assurances obtained in specific case were sufficient to remove risk- sufficient

Modern Slavery Act 2015

Criminal defence, civil legal aid, witness protection