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Category: PRIVACY LAW

iRenata’s Guide To Human Rights Courts

Human rights are fundamental rights and freedoms that every individual is entitled to, regardless of their nationality, ethnicity, or any other characteristic. Human rights courts play a crucial role in upholding and enforcing these rights. This beginner’s guide aims to provide an overview of human rights courts, their functions, and their significance in the protection of human rights.

What are Human Rights Courts?

Human rights courts are judicial bodies established to interpret, apply, and enforce international and regional human rights treaties and conventions. These courts serve as a forum for individuals, groups, and sometimes states to seek redress for human rights violations.

If the laws within a country are found to be unlawful and cannot be interpreted in compliance with human rights standards, domestic courts have the authority to declare them incompatible under Section 4 of the Human Rights Act (HRA). While this declaration might not directly benefit the claimant’s case, it serves as a powerful challenge to the parliament, urging them to address and rectify the non-compliant legislation. In criminal court proceedings, one possible consequence of such a declaration is the dismissal of the prosecution due to an abuse of process that infringes upon the defendant’s human rights.

However, a question arises: why not take the human rights case directly to the European Court of Human Rights (ECtHR) in Strasbourg? Especially when we’ve been informed that if we lose, we won’t be required to cover the other party’s costs, a scenario uncommon in domestic courts. Herein lies a significant hurdle – individuals can only approach the ECtHR after exhausting all available domestic remedies “according to the generally recognized rules of international law and within six months from the date on which the final decision was taken,” as stated in Article 35 of the European Convention on Human Rights (ECHR).

There exists another European court frequently confused with the Strasbourg court, particularly by tabloids and occasionally broadsheets. This court, formally known as the Court of Justice of the European Union (CJEU), is located in Luxembourg. True to its name, the CJEU deals with matters related to European Union law. It comprises two components: the full court and the general court, the latter being a somewhat perplexing rebranding of its former role as the Court of First Instance.

EU law encompasses human rights principles, as they are integral to EU law and have been redundantly incorporated into the EU Charter (curious about the Charter? – refer to this post).

It’s important to note that EU law extends beyond matters such as mergers, milk quotas, and faceless corporations. A substantial portion of our environmental law originates from European sources. The free movement of EU citizens underpins significant aspects of immigration law. Whether it’s public health, consumer protection, freedom of information, VAT, employment, discrimination – you name it – upon closer inspection, you’ll discover that a considerable portion bears the influence of either Brussels (where laws are formulated) or Luxembourg (where cases are adjudicated).

Key International Human Rights Courts:

  1. International Court of Justice (ICJ):
    • The principal judicial organ of the United Nations.
    • Resolves legal disputes between states.
    • May provide advisory opinions on legal questions referred by UN bodies and specialized agencies.
  2. European Court of Human Rights (ECHR):
    • Based in Strasbourg, France, it oversees cases related to the European Convention on Human Rights.
    • Individuals, groups, and states can bring cases before the court.
    • Ensures member states comply with human rights obligations.
  3. Inter-American Court of Human Rights (IACHR):
    • Located in San Jose, Costa Rica, it interprets and applies the American Convention on Human Rights.
    • Hears cases against states and issues advisory opinions.
    • Works in conjunction with the Inter-American Commission on Human Rights.
  4. African Court on Human and Peoples’ Rights (AfCHPR):
    • Based in Arusha, Tanzania, it interprets and applies the African Charter on Human and Peoples’ Rights.
    • Individuals, NGOs, and states can bring cases before the court.
    • Works alongside the African Commission on Human and Peoples’ Rights.

Functions of Human Rights Courts:

  1. Adjudication:
    • Human rights courts hear and decide on cases involving alleged human rights violations.
    • Provide remedies and reparations to victims.
  2. Interpretation of Treaties:
    • Clarify the meaning and scope of human rights treaties.
    • Establish precedents for consistent interpretation.
  3. Advisory Opinions:
    • Render non-binding opinions on legal questions presented by states and international organizations.
    • Guide on the interpretation of human rights norms.
  4. Monitoring Compliance:
    • Ensure states comply with their human rights obligations.
    • Review periodic reports submitted by states on their human rights record.
  5. Prevention and Education:
    • Contribute to the prevention of human rights violations through legal education and awareness.

Significance of Human Rights Courts:

  1. Access to Justice:
    • Provides individuals and groups with a platform to seek justice for human rights violations.
  2. Accountability:
    • Holds states accountable for human rights abuses and encourages compliance with international standards.
  3. Precedent-setting:
    • Establishes legal precedents that guide future cases and contribute to the development of human rights law.
  4. International Cooperation:
    • Promotes collaboration between states and international bodies in the protection of human rights.

Steps To Take:

  1. Firstly, the process typically begins by convincing a domestic court that the case involves a complex aspect of European law. Consequently, the domestic court refers the case to Luxembourg to seek clarification on that specific point of law, as outlined in Article 267 of the Treaty on the Functioning of the European Union (TFEU). Using the challenge to Article 6(1) in Latvia as an illustration, Luxembourg assisted in elucidating the legal aspects but left it to the Latvian courts to ascertain the facts and apply the law. However, this route is not without challenges, considering the time it takes, roughly around 18 months, to reach a resolution. In intricate cases, there might even be a need for a second visit to Luxembourg if the Court of Justice of the European Union (CJEU) provides particularly convoluted answers in the initial round. Article 6(1) is a common reference to a legal provision that can be found in different contexts and documents. For example, it could refer to: Article 6(1) of the UK GDPR, which lists the six lawful bases for processing personal data Article 6(1) of the EU Treaty, which recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European UnionArticle 6(1) of the Human Rights Act 1998, which incorporates the right to a fair trial from the European Convention on Human Rights into UK law
  2. Secondly, there is an alternative option to initiate proceedings directly in Luxembourg. However, this is only applicable when seeking to challenge European law or a measure directly, asserting its unlawfulness with reference to another aspect of EU law, which may include human rights principles. In such cases, governed by Article 263 of the TFEU, where the objective is to challenge a European law or decision and have it set aside or annulled, this becomes the only viable course of action.

Human rights courts play a pivotal role in safeguarding and promoting human rights globally. Through adjudication, interpretation, and monitoring, these courts contribute to the development of a more just and rights-respecting world. As individuals become more aware of these institutions, they can actively participate in the protection and promotion of human rights on both a national and international level.

Domestic courts lack the authority to handle certain matters, necessitating a journey to Luxembourg. For instances of such proceedings and the stringent rules governing eligibility, you can refer to my posts here (involving a challenge to EU trade law regarding seal fur) and here (regarding the EU Commission’s decisions on the enforcement of pesticides and air quality rules).

However, when presented with a choice, why opt for convincing the Court of Justice of the European Union (CJEU) to address your Euro-human rights issue? The primary motivation lies in the fact that certain arguments resonate more effectively with the “civil” lawyers, who constitute the majority of judges on the court. “Civil” refers to the legal tradition distinct from the common law or judge-made tradition followed by the UK within the EU. While our domestic judges have become more accustomed to grappling with broad EU law principles like proportionality or judicial effectiveness, a supranational court may be more amenable to arguments that challenge cherished common law norms, especially when viewed from a continental perspective.

Additionally, it’s crucial to delve into the European Convention on Human Rights (ECHR), mandated by Article 6 of the Lisbon Treaty. This exploration is essential as it allows for the possibility of bringing the EU (and perhaps the CJEU) before the Strasbourg court.


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Concerns On Facial Recognition

The Ethical Quandary: Police Widening Use of Live Facial Scanning Raises Concerns for Human Rights

Advancements in technology have ushered in a new era of law enforcement tools, with live facial scanning becoming increasingly prevalent. While these technologies promise enhanced public safety and crime prevention, concerns about their impact on human rights have intensified. The growing use of live facial scanning by police forces around the world raises pressing questions about privacy, consent, and the potential for discriminatory practices.

Privacy Invasion:

One of the primary concerns surrounding the expansion of live facial scanning technology is its potential to infringe upon individuals’ right to privacy. As law enforcement agencies deploy facial recognition systems in public spaces, citizens may find themselves under constant surveillance without their knowledge or consent. This mass surveillance poses a significant threat to the fundamental right to privacy, a cornerstone of democratic societies.

Misidentification and Discrimination:

Live facial scanning technology is not infallible, and its use by law enforcement agencies has raised alarms regarding accuracy and reliability. Numerous studies have shown that facial recognition systems can disproportionately misidentify individuals based on factors such as race and gender. This inherent bias could lead to wrongful arrests, further entrenching systemic discrimination within the criminal justice system.

Moreover, the lack of regulation and oversight in the development and deployment of these technologies contributes to their potential misuse. Without proper safeguards, live facial scanning could exacerbate existing social inequalities, disproportionately affecting marginalized communities.

Lack of Informed Consent:

In many cases, individuals subjected to live facial scanning are not aware that their biometric data is being collected and analyzed by law enforcement. The absence of informed consent raises ethical concerns, as citizens may unknowingly become part of a surveillance system that tracks their movements and activities.

The potential for mission creep, where initially intended purposes evolve into broader and more invasive uses, is a real threat. What may start as a tool for identifying criminal suspects could quickly transform into a means of tracking individuals for non-criminal activities, eroding the trust between law enforcement and the communities they serve.

Legal and Regulatory Gaps:

The rapid evolution of live facial scanning technology has outpaced the development of appropriate legal frameworks and regulations. Many jurisdictions lack clear guidelines on the use of facial recognition by law enforcement, leaving room for abuse and misuse. The absence of robust legal safeguards raises questions about accountability, transparency, and the protection of citizens’ rights.

International human rights organizations and privacy advocates are calling for comprehensive legislation that addresses the ethical concerns surrounding live facial scanning. Striking a balance between public safety and individual rights is essential to prevent the erosion of civil liberties.

The Erosion of Civil Liberties

Concerns have been mounting over the trajectory of the United Kingdom’s approach to surveillance and privacy. As the nation embraces advanced technologies for law enforcement and security purposes, parallels with China’s extensive surveillance apparatus become increasingly apparent. This transformation, some argue, is transpiring without adequate public consultation or input, leaving citizens with limited influence over the growing encroachment on their civil liberties.

Rapid Expansion of Surveillance Technologies:

The proliferation of surveillance technologies in the UK has been swift and comprehensive. From closed-circuit television (CCTV) cameras that populate public spaces to the deployment of facial recognition systems by law enforcement, the landscape of surveillance is evolving rapidly. Critics argue that these developments are reminiscent of China’s expansive surveillance state, where citizens are constantly monitored, raising questions about how the UK’s trajectory aligns with these parallels.

The shift towards increased surveillance in the UK has not gone unnoticed on the international stage. Human rights organizations have expressed concerns about the erosion of privacy and civil liberties, drawing parallels to more authoritarian regimes. The potential for a surveillance state to stifle dissent and limit freedom of expression is a worrying prospect that demands careful consideration and scrutiny.

Pros of Facial Scanning:

  1. Enhanced Security: Facial scanning technology can contribute to improved security by quickly identifying and verifying individuals in various settings, such as airports, government buildings, and public events.
  2. Crime Prevention and Investigations: Law enforcement agencies can use facial recognition to prevent and investigate criminal activities more efficiently, leading to faster and more effective responses.
  3. Efficient Access Control: Facial scanning provides a secure and efficient means of access control, enhancing safety in restricted areas and ensuring only authorized individuals gain entry.
  4. Automation and Efficiency: Automated facial recognition systems can streamline identification processes, reducing the need for manual verification and saving time and resources.
  5. Lost or Missing Person Identification: Facial scanning technology can assist in quickly identifying and locating missing persons, improving the chances of a timely and positive resolution.
  6. Public Health Measures: During health crises, facial scanning can be employed for contact tracing and monitoring compliance with public health measures, aiding in the control of infectious diseases.

Cons of Facial Scanning:

  1. Privacy Concerns: Facial scanning raises significant privacy issues as it involves the collection and analysis of biometric data without individuals’ explicit consent, potentially leading to unwarranted surveillance.
  2. Misidentification and Inaccuracy: Facial recognition systems are not infallible and can result in misidentifications, leading to wrongful accusations and legal consequences for innocent individuals.
  3. Bias and Discrimination: Facial scanning technology may exhibit bias, particularly in its accuracy across different races and genders, contributing to discriminatory outcomes and reinforcing existing societal inequalities.
  4. Surveillance State Dangers: Widespread use of facial scanning can contribute to the development of a surveillance state, creating an environment where individuals may feel constantly monitored, impacting personal freedoms.
  5. Lack of Informed Consent: Individuals may not always be aware that they are subjected to facial scanning, raising ethical concerns about the transparency of such surveillance practices and the absence of informed consent.
  6. Mission Creep: There is a risk of “mission creep,” where facial scanning, initially deployed for specific purposes like crime prevention, may be expanded for broader and potentially invasive uses without proper oversight.

Balancing the benefits and drawbacks of facial scanning requires careful consideration of ethical, legal, and societal implications to ensure responsible and respectful deployment of this technology. It’s important to note that while facial scanning offers various benefits, addressing the associated negatives, such as privacy concerns and potential misuse, is crucial for ensuring the ethical and responsible deployment of this technology.

Is it illegal in the UK for the Police to be using Facial Recognition?

Addressing facial recognition technology, its use has been challenged on the grounds of existing laws, such as the Data Protection Act 2018 and the Human Rights Act 1998. Critics argue that the use of facial recognition by the police may infringe on individuals’ right to privacy and could lead to issues related to data protection and discrimination.

In response to these concerns, there have been calls for clearer regulations and oversight of facial recognition technology to ensure that its deployment aligns with legal and ethical standards. The lack of specific legislation has led to a situation where the legality of facial recognition use is often subject to interpretation and legal challenges.

How Reliable Are Facial Recognition Systems:

Facial recognition systems operate by analyzing and comparing facial features to determine a person’s identity. These systems typically use algorithms to create a unique facial template or signature based on key facial characteristics, such as the distance between the eyes, nose shape, and other distinctive features.

If a person’s appearance has changed significantly since the photo on the database was taken, it can pose challenges for facial recognition systems. Changes such as aging, facial hair, hairstyles, weight gain or loss, and other alterations can impact the accuracy of facial recognition.

However, many facial recognition systems are designed to be somewhat robust against changes in appearance. They may use sophisticated algorithms that focus on key facial landmarks or features that are less likely to change over time. Additionally, some systems may incorporate machine learning techniques that allow them to adapt to variations in appearance.

Despite these advancements, there are limits to a facial recognition system’s adaptability. Significant changes, such as plastic surgery, might make it more challenging for the system to accurately match a current appearance with an older database photo.

It’s important to note that the effectiveness of facial recognition systems can vary widely based on the specific technology used, the quality of the images, and the nature of the changes to the person’s appearance. In some cases, human intervention or additional verification methods may be necessary to ensure accurate identification.

Conclusion:

As live facial scanning becomes more deeply embedded in law enforcement practices, society must grapple with the ethical implications of this powerful technology. Striking a balance between public safety and individual rights is crucial to ensuring that live facial scanning does not become a tool for unwarranted surveillance, discrimination, and privacy invasion. Policymakers, technology developers, and civil society must work together to establish clear regulations and safeguards that protect human rights in the face of advancing technological capabilities. Only through thoughtful and ethical considerations can we harness the benefits of live facial scanning while safeguarding the principles that underpin a just and democratic society.

As the United Kingdom continues its trajectory towards a surveillance state, drawing parallels with China’s extensive monitoring apparatus, citizens must engage in informed discussions about the balance between security and individual rights. The lack of meaningful public consultation, coupled with legislative gaps, raises concerns about the erosion of civil liberties. To safeguard the principles of democracy, transparency, and human rights, it is imperative that the UK addresses these issues promptly and ensures that the public has a meaningful say in shaping the nation’s approach to surveillance. Only through open dialogue and robust legal frameworks can the UK avoid the pitfalls associated with becoming a surveillance state where individual freedoms are compromised without due consideration.

Even manual verification can be dubious like the time my husband and I were flying to Rome for our honeymoon and customs in Holland, as we had a stopover would not let me through because my passport photo did not resemble how I looked. Our names were being called over the tannoy and the guard nudged his colleague and started laughing to the point I said “Have you got a problem with me being fat”. With that said he let me through but it was a close call as we had to beg the pilot to open the door to let us on. This was over 20 years ago and now there is biometric face recognition, but imagine if you have a doppelganger, again another story, after my brother passed away I saw the spitting image of a homeless man who looked like my brother and I was emotionally obliged to give the guy some money. I bet he wondered why I was about to burst into tears, I never saw him again.

Further Reading


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