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HUMR5120 Substantive rights

HUMR5120 Substantive rights. The right to liberty of person. The liberty of person. A broad concept – the right to liberty of person developed at an early stage as part of the human rights protection Most severe cases – slavery and slavery like practices

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HUMR5120 Substantive rights

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  1. HUMR5120Substantive rights The right to liberty of person Maria Lundberg, NCHR

  2. The liberty of person • A broad concept – the right to liberty of person developed at an early stage as part of the human rights protection • Most severe cases – slavery and slavery like practices • Abolition movements already in the 19th century • Abolition of Slave trade and developed into the abolition of slavery • Codification in • The 1926 Slavery Convention, amended by Protocol 1953 • The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956 • The 1956 Convention further developed definitions Maria Lundberg, NCHR

  3. Slavery • Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership is are exercised (Art. 1 Slavery Convention of 1926) • Art. 8 ICCPR • Art. 4 ECHR • No derogations Maria Lundberg, NCHR

  4. Trafficking • 1949 Convention for the Traffick in persons and of the Exploitation of the Prostitution of Others • Art. 6 CEDAW – Trafficking in women and exploitation of prostitution • Optional Protcol to the CRC on the Sale of Children, Child Prostituion and Child Pornography (2000) • Regional developments – Africa, Americas and Arab Maria Lundberg, NCHR

  5. Forced or Compulsory Labour • ILO Conv. 29 Concerning Forced Labour (1930) • Art. 8.3 ICCPR • Art. 4.2 ECHR • NB. Exclusions from the protection against forced labour • Art. 8.3 ICCPR • Art. 4.3 ECHR • Military service or replacement • Work during detention • Work during a situation threatening the life of the nation • Part of normal civic obligations Maria Lundberg, NCHR

  6. Liberty and Security of Person • Slavery and absolute prohibition • Liberty of person • a procedural guarantee against arbitrary and unlawful deprivation of liberty • Security of Person • Interference with the personal integrity by private persons (horizontal effects of the right) see Delgado Paez v. Colombia (Comm. 195/1985) Views 12 July 2000 Maria Lundberg, NCHR

  7. Security of Person • ”An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant” see (Delgado Paez v. Colombia, paras. 5.5, 5.6, 6.) Maria Lundberg, NCHR

  8. Liberty and Security of Person • Developments in the practice of the ECHR and the HRCmmttee • From only deprivation of liberty to also include security of person • Disappearances (ECHR: Timurtas v. Turkey (App. 23531/94, Judgment of 13 June 2000) • Threats to life (HRC: Delgado Paez v. Colombia (Comm. 195/1985) Views 12 July 2000 Maria Lundberg, NCHR

  9. Liberty of person • Deprivation of liberty permitted as long as not • On grounds and procedures not according to law • On grounds which has a purpose which is incompatible with human rights including the liberty and security of person • ECHR Art. 5.1(a)-(f) lists exceptions to the liberty of person • ICCPR Art. 9 - no specific exception but ”except on such grounds and in accordance with such procedures as are established by law”. • BUT Arts. 7(torture), 10 (humane treatment of persons deprived liberty) 11(detention for debt), 12 (freedom of movement) Maria Lundberg, NCHR

  10. Liberty of person • Deprivation of liberty to be tested whether lawful in accordance with procedural guarantees • If unlawful – right to compensation (Art. 5.5 ECHR, Art. 9.5 ICCPR) • Art. 5.4 ECHR ”The review should, however, be wide enough to bear on those conditions which are essential for the ”lawful” detention according to Article 5(1)” (E v. Norway, Judgment 29 August 1990, ser. A. no. 181, para. 50) • Required scope – difference depending on grounds (Chahal v. United Kingdom (Appl. 22414/93), Judgment of 15 November 1996) Maria Lundberg, NCHR

  11. Liberty of person • Art. 5(4) ECHR (Art. 9.4 ICCPR) • Before a court: • Judicial character • Independent of the executive and the parties • Powers to release (Singh v. the United kingdom (App. 23389/94), Judgment 21 february 1996, para.65) Maria Lundberg, NCHR

  12. Liberty of person • Procedure: • Not the same guarantee as under ”fair trial” • Adversial oral hearing necessary in cases of 5.1(c) (ICCPR Art. 9.3) • ”Speedily” ECHR Art. 5.4: soon and with due diligence, at intervals depending on the grounds for detention (Singh v. the United Kingdom (App. 23389/94), Judgment 21 February 1996) Maria Lundberg, NCHR

  13. Liberty of person • Arrested or detained for suspicion of crime • ECHR Art.5.3, ICCPR Art. 9.3, • ”promptly before a judge” • State obligated to provide • Not a definite time limit • Not necessarily a ”judge” but judicial attribute to protect the rights of the detained Maria Lundberg, NCHR

  14. Liberty of person • ECHR Art.5.3, ICCPR Art. 9.3, Cont. • Initially and during continued detention • Must not exceed a reasonable time in total • Only for certain reasons: • Absconding, re-offending, suppression of evidence, collusion • Only until trial Maria Lundberg, NCHR

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