A critical analysis of article-3 of the European Convention on Human Rights - Dissertation Example

?A critical analysis of Article-3 of the European Convention on Human Rights, in the context of children’s rights Every human being needs the fundamental rights as a primary requirement in their day to day life, which feciliates them with security to live their life in present day world. The basis of this right is the respect to the human values by securing the human rights. On the contrary, ECHR is all set to work for the protection of human rights in th european countries. However, some of its policies regarding certain humain rights are still not worth effective. As, Article 3 of the European Convention on Human Rights, prohibits torture “inhuman or degrading treatment or punishment”. In other words we can say any intentional act by which severe pain or suffering is caused physically or mentally to a person. The definition has tried to cover a huge objective scope, rather than becoming subjective and more definite. Resultantly, due to its infinite nature, the Article 3 has been a critical issue. There is a lack of exact definition and clear meaning of torture mentioned in the article. Nevertheless, torture has a wide range, from normal torture to severe punishment and that may vary in different age group. But, Article 3 does not seem to cover all the aspects of human rights. Initially the UK Court had restrictive view on what consisted of torture, preferring to find that states had inflicted inhuman and degrading treatment. Though ECHR is fighting for the rights of children and protect the children from violations but the criteria it has designed is not able to act effectively. Thus the court held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture1. On the contrary, there is a necessity of giving more emphasis on the rights of the children, because they are the usual victim of torture and prohibitions, which deprive them of the human rights in their normal day to day life. That may lead to troublesome life of the children. In such case, the convention’s Article 3 seems to be insufficient to provide protection to the children in an authentic way. Keeping in view, the importance of child’s right The United Nations Convention on the Human Rights of the Child defines a child as a human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier, 2 agreed by 192 of 194 member countries. Biologically, a child is anyone between birth and puberty or in the developmental stage of childhood, between infancy and adulthood. Children generally have fewer rights than adults and are classed as not able to make serious decisions, and legally must always be under the care of a responsible adult.3 The positive side of European Convention on Human Rights is their step towards the reforms in human rights and possibly, there are chances of more amendments and improvement in the capacity of the policies; enabling them to protect the children from any kind of abuses. Due to the lack of contents in the Article 3 of European Convention, The UK Court has emphasized the fundamental nature of Article 3 in holding that the prohibition is made in absolute terms, irrespective of a victim's conduct. The Court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state.4 If we look at the history of torture, it was first used in the ancient Greeks and Romans for interrogations. Torture was used only on slaves until the 2nd century. But, gradually that started spreading to all the sections in lower class people. Statement of a slave was valid, only if it has come out through torture.5 But at the present scenario when we talk about child torture and their right it would be important to find the definition of torture and its relevance with child’s right. Torture, according to the United Nations Convention Against Torture, ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions’.6 From above mentioned definition we have understood that any kind of intentionally inflicted physical or mental pain or suffering to a person is torture. Mostly the definition of torture seems to cover the complex subjects, like in kidnapping, custody and some major social issues. However, the children’s rights are the part of their every day playful life; which specially includes their home, schools and the neighborhood. Their rights are violated the moment they are slapped by their parent or teacher; the violation of their right occurs, when they are not allowed to play in there courtyard; not given nutritious food; disturbed in sleeping by their family members etc. The violation of child’s right starts from a very minor happenings, which harm them physically as well as mentally even more than a severe torture to an adult. Such minor tortures, in children’s day to day life are the obstacles to their healthy growth, both physically and mentally. But, no policies of any government and conventions seem to be able to reach in depth to protect the children from being abused. In the 16th century only society began to relate to the child not as a miniature adult but as a person of a lower level of maturity needing adult protection, love and nurturing. This change can be traced in painting: In the Middle Ages, children were portrayed in art as miniature adults with no childish characteristics. From the late 17th century onwards, children were shown playing. Toys and literature for children also began to develop at this time.7 Punishing children at schools and even at home has become usual now a days; as parents and teachers thinks that such a way can make them well behaved and disciplined, but the reality is different; as the children reacts psychologically to every actions against them. Punishment is different than discipline and impacts the learner in distinct ways. Disciplined behavior means ways of behaving that show respect and responsibility. The goal is for the learner to develop self-discipline through their own efforts rather than through the efforts of another by means of monitoring, threats, fear, and force. Punishment is external and does not promote or allow self-discipline to be achieved. Punishment generally only stops the behavior for the moment but does not have positive long-term outcomes. 1. Punishment emphasizes what a child should not do while Discipline emphasizes what a child should do. 2. Punishment is a one-time occurrence while Discipline is an ongoing process. 3. Punishment insists on obedience while Discipline sets an example to follow. 4. Punishment undermines independence while Discipline leads to self-control. 5. Punishment is an adult release and about their power. It is also about displaced anger. 6. This is when adults are angry about something but take their anger out on children while Discipline helps children change. Punishment makes children behave while 7. Discipline accepts children’s need to assert them. 8. Punishment thinks for children while Discipline encourages children’s ability to think for them. 9. Punishment defeats self esteem while Discipline encourages self-esteem. 10. Punishment condemns misbehavior while Discipline encourages self- disciplined behavior.8 Every child has to go through different stages of social development. An infant or very young child will play alone happily. If another child wanders onto the scene, he or she may be physically attacked or pushed out of the way. Eventually the group grows larger and by the time a child enters kindergarten, he or she is usually able to join in and enjoy group experiences9. Children with learning disabilities may need extra help in developing social skills. Children with poor attention spans may not tune in to social cues in their environment, making it difficult for them to learn social skills through experience.10 They need a comfortable and adequate environment for their proper growth and happy life. A minor torture in their innocent life may harm them terribly, both mentally and physically. The torture in relation to adults varies in a wide range, but mostly the painful suffering the person is made to face in the custody by the police, in interrogations, kidnapping, and in communal issues based on discriminations. Adults are not prone to the minor sufferings of torture as they themselves are able to fight against such violations; mostly they are victimized by police or criminals and the social discriminators. There are maximum chances of torture against an adult, to reach the court and seek the justice, but in the case of children it is very different as their torture are so minor for the so called society, that does not consider slapping or beating without any reason, disturbing the children, giving less nutritious food as a torture. Therefore, there is a less chance of children’s right violation to reach the legal justice. The adult’s psychological strength is much stronger than a child. Even a sever torture can cause little harm to their psychological condition, but in regard of children it is very different as the every day minor torture can leave critical and dangerous impression resulting in an impaired mental growth. Ireland v UK in the year 1978 mentioned five points of torture which are as follows:11 (a) Wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread-eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers"; (b) Hooding: putting a black or navy colored bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation; (c) Subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; (d) Deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) Deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.12 The five points mentioned above are mostly used by the offenders to the adults to give them the extreme pain and sufferings, whereas these points also do not hold any relevance to child’s right because no parents or teachers punish children in such an extreme level because it may cause death of a child. In September 1998, a case before the European Court of Human Rights, regarding A young English boy, known as ‘A’ to protect his anonymity, reported the European Commission and Court of Human Rights of being beaten repeatedly by his stepfather with a garden cane. The stepfather was prosecuted in an English court, but used the common law defense of "reasonable chastisement" and was found not guilty by the jury. But in the next decision the European Commission on Human Rights found unanimously that A’s rights had been breached.13 The Commission referred the case to the Court. After a hearing, in September 1998 the European Court of Human Rights released its judgment, unanimously finding that the punishment of the boy amounted to inhuman or degrading treatment or punishment, which is prohibited under article 3 of the European Human Rights Convention and that UK law, had failed to provide adequate protection. The Court referred to Articles 19 and 37 of the United Nations Convention on the Rights of the Child. It ordered the Government to pay the boy ?10,000 damages and his legal costs. Immediately the UK Government announced that it would reform its law to give children’s better protection. 14 There is one more case related to the child’s right violation, which was in limelight in 1993.The case was about a beating of a seven year old student by the principal of a public school. The Court held that in order for punishment to be degrading it is necessary to attain a particular level of severity but the there are no evidences of any severe treatment. While the Court did not wish to be taken as approving in any way corporal punishment as part of the disciplinary regime of a school, it concluded that in the circumstances of this case there had been no violation of article 3. So far, we discussed about three cases related to child’s right violations. Let us talk about the relation of all the cases with child’s rights. The Ireland v UK case’s five points are not sufficient to cover the child’s rights as that has covers only the bigger issues, possibly applicable to adult’s torture. As far as the A v UK case is concerned it can be said, that was a historical and significant decision taken in favor of the children; due to the decision of the court there is an increase in the possibilities of better protection of the child’s right. The third case Costello v UK was also again unable to bring any reforms for children as that were dismissed by the court saying, the case is not violating the article 3. Hence, to provide a proper protection to child’s rights in the state there is a strong need of change in the article 3 of European Convention on Human Rights. Unless it is done so, it would be bias to say, the conventions are fighting for human rights. Like every changes in the world, the way of torturing also have changed. The five points mentioned by Ireland v UK case is not enough to cover all different varieties of torture methods used. Simultaneously these five points are totally lacking its relevance with the tortures happening with the children. However there have been certain legal changes in law against the corporal in the recent time. One of such examples is the abolition of corporal punishment in state schools by the UK parliament in the year 1986. This historical change in the children’s right can be credited to the ‘STOPP’, The Society of Teachers Opposed to Physical Punishment which was set up in the U.K. in 1968 to campaign for the abolition of corporal punishment in UK schools15 The strong campaigning conducted by STOPP forced the Court abolish corporal punishment. The Howard League for Penal Reform campaigned started in the 1930 for the abolition of judicial corporal punishment, which was eventually achieved in the U.K. in 1948.16 There was , another planned campaign of the Humanitarian League, with its regular magazine The Humanitarian, which campaigned for several years for the abolition of the chastisement of young seamen in the Royal Navy, a goal partially achieved in 1906 when naval birching was abandoned as a summary punishment. However, it did not manage to get the Navy to abolish caning as a punishment; finally, in 1967 they achieved success due to the long run pressure put by The Humanitarian League .17 Similarly, there is a strong need of such pressure group to fight for the rights of the children, with effective policy to achieve target. Hence, the involvement of pressure groups in different period of time has been able to bring certain changes in corporal punishment. Whereas, the definition set by EU Court does not seem to be much effective, as that does not covers varied form of torture in a precisely, which lead to the negligence of the cases regarding torture. The court has considered torture as inhuman or degrading behavior.18 But the infiniteness in the definition itself is an in-justification with the word torture. For the first time 1996, Court accused someone guilty of torture where the detainee was hanging by his arms whilst his hands were tied behind his back. Since then the Court has appeared to be more open to finding states guilty of torture and has even ruled that since the Convention is a "living instrument", treatment which it had previously characterized as inhuman or degrading treatment might in future be regarded as torture.19 As due to the nature of complications in findings, the court had held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture.20 The UK definition of torture goes on like this, “Torture is deliberate ill-treatment of a human being which leads to very serious suffering. Torture may be mental or physical or a combination of the two. Definitions often exclude any suffering caused by the execution of a lawful punishment or sanction. Of course, any punishment which in itself amounted to torture is unlikely to be lawful”.21There is no exact definition set by the European convention which can solely cover the complexity of torture. If we just go on comparing, it defines torture, as “inhuman or degrading treatment or punishment”. There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention. Hence, the provisions and policies, the European Convention on Human Rights has designed, does not have authentic approach to reach the core giving protection to child’s rights. Therefore to give proper protection to the child’s right; we need to examine the factors causing the violation. There are several psychological as well as the physical factors affecting the proper growth of children. A child is any human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier.22 According to Cornell University, a child is a person, not a sub person, and the parent has absolute interest and possession of the child. The term "child" does not necessarily mean minor but can include adult children as well as adult non-dependent children.23 There are no definitions of other terms used to describe young people such as "adolescents", "teenagers," or "youth" in international law.24 Therefore, before talking about Child’s right we need to understand, who are children? That makes it easier to go into the process of designing a favorable and necessary policy to save children from getting abused. As we have already seen that among two cases of child’s right, one has got the success but the other case Costelo v UK faced the dismissal. Hence, The European Convention on Human Rights needs to start from a proper definition of torture and child right, which should be more descriptive than as they have mentioned “any intentional act by which severe pain or suffering Is caused physically or mentally to a person’, and obviously that can help the convention to gain a fruitful success. Prevailing definition of torture in the convention does not even have as much strength as the UK court has. Article 3 as a regulation policy for torture lacks in several aspects of torture; on the other hand, unless the limited statements included in Article is not violated the person is not going to get the justice. It is certainly because of ineffective policies on torture, the child’s rights have been neglected. Had there been an effective definition and law favoring child’s right, people would have been aware of the fact that violating the same will be punishable; unfortunately, in the absence of the same; violating child’s right has become easy for the people. Resultantly, children are prone to sexual abuses of different kind, which range from psychological to physical. Not only minor girls are the victims, but boys are also abused homosexually. The other form of violence is child labor, where children are made to work as an adult at hotels, shops and in construction sites where, the right to education is also violated. Many of the minor girls are used by sex workers and forced to do sex with the costumers throughout the day. On the other hand, in a family environment also children rights are violated most frequently. Children’s are not given chance to express themselves, as adults can only take part in the decision making. Their desires are disregarded, considering those as an immature thought. Adults do injustice to children by beating them and that would not be a violation of child’s rights as adults are considered sensible. There are lot many cases, which children face in their daily life, which affects them adversely. In 2007, 1668 people in England and Wales were found guilty or cautioned for the specific offence of 'cruelty to or neglect of children'. There are of course other offences against children which lead to prosecutions, e.g. in the same year 347 people in England and Wales were found guilty of sexual activity with a child under 13, and 943 of sexual activity with a child under 16.25 On the other case, a child, known only as Baby P, died in August 2008 after being repeatedly abused by his mother, her boyfriend and their lodger, despite being on the child protection register.26 In 2000 in London, an eight-year-old Ivorian girl Victoria Adjo Climbie, (2 November 1991 - 25 February 2000) was abused and murdered by her guardians. Her death led to a public inquiry and produced major changes in child protection policies in England. Climbie’s death was largely responsible for the formation of the Every Child Matters initiative; the introduction of the Children Act 2004; the creation of the Contact Point project, a government database designed to hold information on all children in England. 27 The circumstances in the environment are created by the adult people for their comfort ant that meets their demand but it differs with the children demand. As a result children’s feelings are not given much more importance. Adults consider, showing the possessiveness towards the children and feeding them is like giving them rights. But such estimation creates an opaque layer between children layer and adult’s practice, which leads to the violation of child’s right. For example, children are not allowed to attain adult’s discussion, this is taken very simply by the people but the affect of this will remain in a child child’s mind in the form of painful question, why am I not allowed? The child also feels disgraced in such situation that may lead a child to psychological problem28 (Lansdown 2005). As we have already discussed about the various ways of child’s rights violation. Besides physical violations there is a need of a cognitive study to find out the psychological rights violation. The major child’s right violations can be apparently seen in the form of prostitution, forced child labor etc., but the abuse of the children in home, in school, in a society in their day to day life are not normally noticed. Most of the adults enjoy bullying children for their enjoyment, they also practice sex with children, but due to innocence they are unable to recognize such acts of an adult as a crime which gives a clean cheat to the adults even after committing the crime 29 (Lansdown 2005). Nevertheless, ECHR is doing their level best to save the child’s right through their pressure against the cases that are exposed in the public but the requirement to highlight the unnoticeable abuses is the most important in present scenario. Hence, to protect the children from such minor abuses happened in their home and neighborhood or school, there is an urgent requirement of a strong and effective law against child’s rights violation. Unless and until such step is taken, the people will continue taking child abuse as a usual thing. ECHR and European court should come up with a combined objective with an effective definition, which can influence the people making them aware of child’s rights. All the above mentioned activities come under children’s right violation. However, such violations are ignored by the society due to their ignorance about the child’s rights. Therefore, it may be said that the Article 3 of ECHR has been unable to influence the common people, which has created a layer of ignorance and confusion about the child’s rights. BIBLIOGRAPHY 1. Ireland v United Kingdom, 1979, 2, EHRR, 25. 2. Office of the United Nations High Commissioner for Human Rights. ‘Convention on the Rights of the Child’, The Policy Press, 3. Chahal v United Kingdom, 1997, 23, EHRR, 413. 4. Chahal v United Kingdom, 1997, 23, EHRR, 413. 5. Peters Edward, Torture, New York, Basil Blackwell Inc., 1985. 6. United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. 7. Essays on childhood. 8. Punishing Children, http://www.erp.org.za/htm/issuepg_punish.htm. 9. Rachel K Jones and April Brayfield, Life's greatest joy, European attitudes toward the centrality of children, Social Forces, Chapel Hill, North Carolina, 1997. 10. Rachel K Jones and April Brayfield, Life's greatest joy, European attitudes toward the centrality of children, Social Forces, Chapel Hill, North Carolina, 1997. 11. ‘European Convention on Human Rights’, Read More