ECHR Rights: Slavery, Liberty, Fair Trial and Social Charter
Article 4: Slavery, Servitude, and Forced Labour
Article 4 of the ECHR prohibits slavery, servitude, and forced or compulsory labour. To interpret these terms, the Court (ECtHR) looks at international treaties, as seen in S.M. v. Croatia. The article divides exploitation into three levels:
- Slavery: The most severe form, where one person exercises ownership powers over another.
- Servitude: An aggravated form of forced labour involving coercion or fear from which the victim cannot escape.
- Forced or Compulsory Labour: Requires three elements: (1) work or service, (2) menace of a penalty, and (3) lack of voluntary consent.
Key Takeaway: Article 4 protects against serious exploitation. It does not cover ordinary labour disputes or bad working conditions without coercion.
Human Trafficking and Article 4
Human trafficking falls under Article 4 if three elements are present: Action (recruitment/transfer), Means (coercion/deception), and Exploitative Purpose (sexual exploitation/forced labour). In Chowdury v. Greece, the Court ruled that irregular migrants kept under armed guard for unpaid labour constituted human trafficking.
Exceptions under Article 4.3
The following are not considered forced labour:
- Work during detention: Ordinary prison work.
- Military service: Compulsory service or substitute service for conscientious objectors. Professional military contracts are excluded from this exception.
- Emergency: Services required during natural disasters or threats to the community.
- Normal civic obligations: Duties that are not disproportionate, such as pro bono legal work for trainee lawyers.
Article 5: Right to Liberty and Security
Article 5 protects individuals against arbitrary arrest and detention. Detention is only permitted for six specific reasons, including conviction by a court, disobeying a court order, pre-trial detention, detention of minors, special categories (e.g., persons of unsound mind), and immigration control.
Key Legal Principles
- Legal Certainty: Grounds for detention must be foreseeable and precise.
- Lawfulness: Detention must follow a procedure prescribed by law.
- Deprivation of Liberty: Defined by coercion and the inability to leave (e.g., Friedrich v. Poland).
Pre-Trial Detention Rules
To hold someone before trial, the state needs reasonable suspicion plus one of four grounds: risk of absconding, interfering with justice, reoffending, or public disorder. The 4-Day Rule mandates that a detainee must see a judge within four days.
Essential Rights (Art. 5§2–5)
- Right to be informed: Prompt notification in a known language.
- Right to a judge: Speedy trial or bail.
- Right to challenge (Habeas Corpus): Judicial review of the arrest.
- Right to compensation: For unlawful detention.
Article 6: Right to a Fair Trial
Article 6 guarantees a fair trial within a reasonable time by an independent court. It covers access, participation, fairness, finality (res judicata), and execution of judgments.
Court Independence and Criminal Rules
- Independence: Judges must be appointed legally (Ástráðsson Test) and remain impartial.
- Engel Criteria: Used to determine if an “administrative” penalty is actually criminal (based on national classification, nature of the offence, and severity of the penalty).
- Rights of the Accused: Includes the presumption of innocence and the right to silence.
Sources of Law
The ECHR system utilizes three tiers of sources:
- Primary: The ECHR text, Protocols, and Preamble.
- Secondary: Case law of the ECtHR and institutional practice.
- Subsidiary: International treaties, customary law, and soft law used to clarify or interpret the Convention.
The European Social Charter
This treaty protects economic and social rights. It operates on an “A la carte” system where states choose which provisions to ratify, provided they meet a minimum threshold of core articles. Compliance is supervised by the European Committee of Social Rights (ECSR) through reporting procedures and collective complaints.
The Oviedo Convention
The Oviedo Convention is the primary European instrument for bioethics. It mandates sanctions for violations and requires states to report on implementation. The DH-BIO (Committee on Bioethics) supervises the Convention, ensuring human rights are protected in medicine and biotechnology” medicine and biotechnology.