Yup, tak už jsem dlouho nic nenapsala, tak alespoň moje úžasná essay o lidských právech. Ještě, že to byla problem question, jinak by naprosto netušila, co napsat. Ale tak nakonec jsem je i docela podle mě obhájila, a to jsem chtěla udělat na začátku jen větu, že jsou oba debilové a žádná lidská práva jim porušená nebyla lol.
TOM AND SORAYA V UNITED KINGDOM
This paper concerns alleged breaches of Convention rights of Tom and Soraya. There are three possible claims: breach of the right against torture, inhuman and degrading treatment in junction with the right against discrimination, the right to private life and family, and the right of liberty and security. At least one claim for each person is probably going to be successful.
Tom
Tom is a young male of West African origin, who visited Libertia in August 2014 in order to work in a community law clinic and while there, he also undertook a tour of a clinic for HIV positive people. In accordance with the Public Health Pandemics Prevention Act 2014 (PHPPA), he attended a medical examination at a designated facility concerning Ebola. When introducing the Bill, a minister made a comment regarding the Bill as keeping the Britain safe from dangerous Africans. In August 2014, the government introduced a legislation, following the outbreak of an infectious disease called Ebola, about the prevention of spreading of the disease within the UK. As s 11 of the PHPPA states:
“Any person present in the United Kingdom, of West African descent, who has visited any West African State since January 2014 must present him or herself at a recognised health care facility for Ebola testing within 5 days of re-entering the United Kingdom.”Furthermore, when it was his turn, the nurse said: “Next disease-ridden African, your turn.”
Tom was subjected to degrading and discriminating treatment on grounds of his origin and/or race by the government and government-set up public health care facility worker (a nurse), which directly breaches his Convention rights.
Let’s begin with the issue of degrading/inhuman treatment, as set in art3 of the ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
There are several key facts that needs to be defined before assessing the case. First, what an ‘inhuman or degrading treatment’ means. Although art3 is more linked to cases concerning physical violence during detention of suspects, the ECtHR observed that:
“[…] conduct may fall within the scope of Art 3 of the Convention, even though it is not necessarily of such a kind as to leave physical or mental traces capable of being detected by medical examination.”
Additionally, in Pretty v United Kingdom 2346/02 [2002] ECHR 427, degrading treatment was defined as:
“[T]reatment [that] humiliates or debases an individual showing a lack of respect for, or diminishing his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance…”
Second, does Tom’s treatment classify as ‘inhuman or degrading treatment’? This point is closely supported by the issue of discrimination under art 14 of the ECHR. In normal circumstances, being subject to a health examination would probably not be regarded as a degrading treatment, neither would the exclamation of an over-worked nurse. Nonetheless, in context of the ministerial commentary and the fact that the legislation obliges only people of ‘West-African descent’ to be examined, it necessarily comes across as discriminative. It implies that the disease is being associated with West-African people. Consequently, it might even create an impression that the West-African people might be the only ones to be infected due to lack of personal hygiene and a standard of living, conferring to the Western idea of poor and under-developed Third world , which can also be illustrated by the nurse’s comment. She might have been tired and over-worked but it just show in what light the legislation put those of West-African origin. It is very disrespectful, more so because no connection between race and increased vulnerability to the disease has been noted so far.
The art14 of the ECHR says:
“The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin…”
Nonetheless, discrimination can be justified where it pursues a legitimate goal and the proportionality between means and aims is reasonable . However, as mentioned above, there is no reasonable argument why only persons of West-African descent would have to undertake an examination.
Soraya
Soraya is a Law student at the same university. In August 2014, she visited Libertia to volunteer at a community legal clinic. While there, Tom’s aunt was able to secure them a tour of a free health clinic for HIV positive people. Soraya took a few pictures with some medical tools during the tour and published them on her private Facebook page upon return to the United Kingdom. After the PHPPA had been enacted, she was visited by Health Quarantine Officers who claimed to act under s12(1):
“Any individual the government suspects of being a health care worker in any West African State is liable to be detained in a quarantine facility for reasons of public health and safety.”When she was ushered into a van, she spotted a folder with pictures taken from her private Facebook account.
To begin with, there are two possible breaches that Soraya can claim. The first one regards an infringement upon her right against deprivation of liberty as stated in art5 of the ECHR.
Deprivation of liberty was defined in Secretary of State for the Home Department v JJ [2007] UKHL 45 by Lord Bingham as similar to imprisonment . The element of confinement is necessary for it to be considered a deprivation of liberty rather than a breach of right to free movement. It does not actually matter how long the detainment lasted, as even two hours were found to constitute a deprivation of liberty . In this sense, Soraya’s detainment must have surely classify as such.
Nonetheless, art5(2) of the ECHR provides conditions in which the right might be restricted. It clearly states that a public authority must never breach the right:
“[…] except [in such a manner] as is in accordance with the law and is necessary in a democratic society in […] public safety […], for the prevention of disorder or crime, for the protection of health…“Unfortunately, there is not many cases concerning this particular justification . The global outbreak of Ebola could very well be considered such a situation. But it must satisfy three conditions posed by the article: (1) to be done in accordance with domestic law; (2) for legitimate purpose; (3) necessary in a democratic society. In my opinion, the officers acted in accordance with the law.
The bigger problem is posed by its legitimate purpose. It is very strange that suspects of being health care workers should be brought into a quarantine. Why not have them undergo the same medical examination as the one set out in s11? Moreover, there are possibilities how to basically twist the s12(1) into a tool for arbitrary detainment because no one has to be actually convicted! Additionally, several UK detainment legislatives has been criticised for violation of art5 of the ECHR because of not imposing a time limit on a detainment . As the Act does not stipulate a limit on the period of time of detainment either, it should be held against it. The third requirement means that there must be a pressing social need for it. Although there was a global outbreak of Ebola, no one in the United Kingdom has been found to be infected and there is only one infected person in the Europe (Sweden), which strongly suggests that the solution of detainment of presumed health carer is an extreme. Soraya’s right to liberty was obviously breached by the detainment.
The second concerns a breach of her right to private and family life (art8 of the ECHR). It is best to begin with the scope of art8(1) of the ECHR and the definition of a ‘private life’. In PG and JH v UK (2001, unreported, appn no 44787/98), judges considered that even the zone of interaction with other, even in public context, can fall within the scope of a private life. However, in Teggart v Tele Tech UK Ltd (NIIT 00704/11), comments made on ‚friends only‘ Facebook page were still proclaimed to be public. It is therefore more than certain that the moment Soraya uploaded her photos on Facebook, she made them public and no breach of her Convention right was committed.
On grounds of Tom’s claim and first of Soraya’s claims, the court should act in accordance with the Human Rights Act 1998 and consider whether to implement s3 or s4. In my opinion, it would be best to issue the declaration of incompatibility as wording of the Act is very clear and to interpret it would be, as per Lord Hutton: “… would be […] to engage in the amendment of a statute and not its interpretation.”
