European Convention for the Protection of Human Rights and Fundamental Freedoms
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is widely regarded as the most effective international instrument for the protection of individual rights1. It went a step further beyond the UDHR by containing a complementary right in Article 142 to non-discrimination on the grounds of status in the exercise of convention rights3. It also contains provisions such as the right to be informed, in a language that he understands, of the reasons for his arrest and charges against him4, to the free assistance of an interpreter if he cannot understand or speak the language used in court5. The Human Rights Act 1998 (HRA 1998) enshrines the ECHR into domestic law.
At first glance, the ECHR appears to have immense relevance to Deaf people, and in theory provides them with a means of enforcing rights such as the right to life6 and to protection from torture, slavery and forced labour7; the right to a fair trial8; the right of privacy and to a family life9; the right to freedom of thought, conscience and religion, and to expression10; and the right to associate and assemble11. However, only a handful of judgments have been handed down by the European Court of Human Rights (ECtHR) in relation to disabled people. Luke Clements and Janet Read contend that: “the reason for the dearth of such cases at the ECtHR can be placed at the door of the usual culprits; the physical, social and economic barriers that prevent disabled people from exercising their rights. Some of these barriers to access are embedded in the circumstances in which many disabled people live their lives. Some are related to the unresponsiveness of the law, the judiciary and the practicalities of enforcement mechanisms to the needs and rights of disabled people. Other barriers reside within the judicial process itself”12.
Clements and Read further argue that the fact that the ECtHR continues to have profound difficulty in identifying and addressing state responsibility for discrimination against disabled people is “a failure of imagination, and a failure of the advocates and judges to find new ways of expressing the language of the ECHR”13. In particular, the fact that article 14 of the ECHR (the prohibition of discrimination) does not specifically mention disability shows a lack of vision on the part of the drafters. The ECHR is similarly silent on the rights of children and gay and lesbian people, but this has not prevented the ECtHR developing jurisprudence which identifies, articulates and attempts to justify the injustice they experience14.
Nonetheless, there appears to have been two attempts do so in relation to Deaf people. In Jasinskis v Latvia15, where a deaf man had died whilst in police custody after sustaining serious head injuries in a fall down some stairs, the ECtHR ruled that the police had violated article 2 in that they had a clear obligation under the domestic legislation and international standards, to at least provide him with a pen and paper to enable him to communicate his concerns about his state of health. In ZH v Hungary16, a deaf man who also had a learning difficulty, had contended that his detention in prison for almost three months had amounted to inhuman and degrading treatment. The ECtHR held that there had been a violation of articles 3 and 5, as the authorities had not taken measures to accommodate his multiple disabilities within a reasonable time and did not take reasonable steps to enable him to challenge his detention respectively.
In contrast to the UDHR, Kay argues that the singular aspect of the success of the ECHR and the institutions created by it has been its acceptance as a genuine system of law, and that the existence of any legal system depends on the presence of certain indispensable political and social preconditions17.
All of the incorporated provisions of the ECHR are of potential significance in the context of discrimination because they can provide a ‘hook’ for the application of the parasitic article 1418, that is, “enjoyment of the rights and freedoms … shall be secured without discrimination on any ground such as … language … political or other opinion, … national or social origin, association with a national minority, or other status”19. A number of ECHR provisions are of particular relevance to discrimination because they themselves may be brought into play by discriminatory treatment: articles 3, 8 and 9 and article 1 of the First Protocol. It is worth noting, however, that only public authorities can be sued directly under the HRA 1998
The ECHR’s falling grace is that for out-groups such as Deaf people, article 14 only comes into play if one of the other Convention rights have been infringed, and by a public authority. Thus, the possibilities of human rights law to provide clear-cut answers to all legal and ethical questions emerging around Deaf people is subject to limitations20. For example, the full inclusion of Deaf people in employment is dependent on access to education, to housing, to transport, to healthcare and, very often, to support with daily living21. In other words, Deaf people cannot gain employment unless they have received a sufficient standard of education that meets their communication or language needs, they have a roof over their heads that has been adapted with flashing lights etc., access to transport to get to work, and access to audiology services. It can be argued that Deaf people only need the appropriate level of education in order to gain employment, with the other factors being ancillary, that is, not prerequisites.
- LR Helfer, ‘Consensus, Coherence and the European Convention on Human Rights’ (1993) 26 Cornell International Law Journal 133, 133. [↩]
- ECHR, art 14. [↩]
- ibid 19. [↩]
- ECHR, arts 5(2) and 6(3)(a) [↩]
- ECHR, art 6(3)(e). [↩]
- HRA 1998, Schedule 1, Part 1, art 2. [↩]
- ibid arts 3 and 4. [↩]
- ibid art 6. [↩]
- ibid art 8. [↩]
- ibid arts 9 and 10. [↩]
- ibid art 11. [↩]
- L Clements and J Read, ‘The Dog That Didn’t Bark: The Issue of Access under the European Convention on Human Rights by Disabled People’ in A Lawson and C Gooding (eds) Disability Rights in Europe: from theory to practice (Hart Publishing 2005) 23-4. [↩]
- ibid 28. [↩]
- ibid. [↩]
- App no 45744/08 (ECtHR, 21 December 2010). [↩]
- App no 28973/11 (ECtHR, 8 November 2012). [↩]
- R Kay, ‘The European Convention on Human Rights and the Authority of Law’ (1993) 8(2) Connecticut Journal of International Law 217, 218. [↩]
- A McColgan, Human Rights Law in Perspective: Discrimination, Equality and the Law (Bloomsbury 2014) 15. [↩]
- ECHR, art 14. [↩]
- A Hendriks and T Degener, ‘The Evolution of a European Perspective on Disability Legislation’ (1994) 1 European Journal of Health Law 343, 361. 361. [↩]
- A Lawson, ‘Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated’ (2011) 40 Industrial Law Journal 359, 383. [↩]