US Billof rights and European Convention on Human Rights

Great Debates
1

Warning- long set of OPs.

Although a great respecter of the US Constitution (if not always a respecter of the way it has been interpreted over the years- slavery, sedition acts, Japanese detentions in WWII among others) it must be questioned whether it is addressing modern sensibilities. This thought arises from the recent discussions on the matter of judicial killing which is banned by the equivalent of bill of Rights in many countries.
The USA can be proud to have one of the earliest statements on the rights of the people (if somewhat derivative of other previous statements in the previous century and before in Great Britain) but a question arises about how well it addresses the reality of the 21st century rather than the 18th.

2

I make the following observations on the Bill of Rights and extensions:
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The absence of an Establishment Clause has not stopped Modern Democracies developing in Europe and elsewhere. In 21st century terms it seems somewhat archaic. The freedoms of speech, press, assembly and petition are reflected in modern constitutions in Europe and elsewhere. Current US protections are sometimes higher than those elsewhere but this ignores previous eras when there were gross violations of such guarantees.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Again, the absence of this from a set of rights does seem archaic. Switzerland as general gun ownership whereas even air pistols are regulated in the UK. In the eighteenth century a well armed militia might easily overthrow an unacceptable government but no modern militia could hope for anything other than death by aircraft and modern war machines on the ground.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Again somewhat archaic and a response to colonial times. Other countries seem to survive without it.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Such provisions are common in other jurisdictions now.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Such provisions are common in other jurisdictions now.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Such provisions are common in other jurisdictions now.
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
This guarantee is largely circumvented in the USA by over-charging and plea bargaining. I am not convinced that it is any better guarantee of a fair trial than Judge or Magistrates disposal of less major crimes in other democracies.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Such provisions are common in other jurisdictions now, and so far as “cruel and unusual” goes it has been extended to protect the life of convicted people.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Merely Administrative, not real individual rights.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Merely Administrative, not real individual rights.

3

Let us now look at the European Convention on Human Rights, very much a modern enumeration of rights held by European citizens:
Article 1 – Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Section I – Rights and freedoms
Article 2 – Right to life
1 Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Missing from the US equivalent. Now extended to remove right of states to kill prisoners.
2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c in action lawfully taken for the purpose of quelling a riot or insurrection.
Missing from US equivalent
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Missing from US equivalent (cf water-boarding etc.)
Article 4 – Prohibition of slavery and forced labour
1 No one shall be held in slavery or servitude.

2 No one shall be required to perform forced or compulsory labour.
3 For the purpose of this article the term “forced or compulsory labour” shall not include:
a any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
c any service exacted in case of an emergency or calamity threatening the life or well being of the community;
d any work or service which forms part of normal civic obligations.
Included as a later amendment in USA.
Article 5 – Right to liberty and security
1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a the lawful detention of a person after conviction by a competent court;
b the lawful arrest or detention of a person for non compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
Similar to the USA but note the last section regarding legal right to compensation
Article 6 – Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b to have adequate time and facilities for the preparation of his defence;
c to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Similar to the USA
Article 7 – No punishment without law
1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2 This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
More comprehensive than the USA
Article 8 – Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
More comprehensive than the USA
Article 9 – Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Similar to the USA
Article 10 – Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Similar to the USA but more restrictive over media ownership.
Article 11 – Freedom of assembly and association
1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
Similar to the USA
Article 12 – Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Not in the US Constitution but exists as a matter of practice.
Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Administrative
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Partially covered by the Constitution as amended but wider in the European case. (No ERA!)
Article 15 – Derogation in time of emergency
1 In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3 Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
The USA has effectively ignored the constitution in time of war and peace without any official acknowledgement.
Article 16 – Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
Similar to US Law.
Article 17 – Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
Administrative
Article 18 – Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
Administrative.

4

So the question is- what could be learned from the two experiences- US Constitution as amended and the ECHR?

(Sorry about the color coding above- I ran out of editing time after it failed the first time.)

5

Is freedom of speech and freedom of the press as widely protected in Europe as it is in the United States? I’m talking about the negative forms of expression - stuff that’s racist, pornographic, seditious, threatening, libelous, or inciting. I think European systems are more likely to prohibit the expression of offensive stuff like this for the good of society while America has the idea that allowing these offensive expressions is a necessary freedom.

6

Freedom of speech is better protected in the USA, but no right is absolute. Even in the US there are exceptions- libel law, hate speech, shouting “Fire” in the theatre etc.

Additionally SCOTUS has found no problem in ignoring such clear rights (Sedition Acts, various Alien’s Acts and so on) when it suits them.

I tend toward the US interpretation, but still feel that at times it ignores other important rights not so clearly protected.

The other question is with true Freedom of the Press- in the USA this has resulted in the best media that can be bought. The political range of most European media is far wider than mainstream US Media (but minority media is freer in the US).

7

I think there’s also a clear difference on what constitutes the free exercise of religion. There have been laws passed in Europe that would be unconstitutional in the United States. French laws prohibiting the wearing of hijabs, for example, would never pass an American court test.

8

Are you sure? Although the French Government won the ECHR on the grounds of being a secular state, the way the original law was written was to ban all face covering in public premises, whether Motor cycle helmets when not required by law, Balaclavas when not freezing, even scarves during demonstrations.

Of course there is a difference between theory and practice. I would rather walk around in Arabic clothing in the UK than in the USA. Many people from areas that would tend to wear traditional clothing seem frightened to in the US (unless they are orthodox Jews!).

France bans something legally, the US does it socially. Same goes for effective free speech outside the rightist norms in the US. In the UK it is quite safe to espouse almost any idea from atheism to communism to gun control (+ or -) without inviting anger from average people- much less so in the US where the mere expression in public of committed atheism or other disapproved concept such as socialised medicine, decent welfare etc is likely to lead to unwanted public comment!

9

However, the French government (and other countries - Belgium and Germany have similar laws) were certainly aware that these laws would affect Muslim women.

I think this reinforces the point I made earlier. In the United States you’re allowed to express yourself even if what you’re saying upsets and offends other people. People can express themselves in the UK and the rest of Europe but only as long as they are expressing “safe” views.

10

The courts only consider the letter of the law.

Even though in the US you may have a greater theoretical right to express extreme opinions, you are far more likely to be aggressively disagreed with and stigmatised by peel in authority and ordinary citizens. I was a socialist atheist peacenik in the USA in the sixties- I know the difference between real and legal rights.

11

But who gives a shit if “average” people are angry at you? It seems to me that Europeans care far to much about what society thinks.

12

It means that technical free speech at the extremes (Nazis marching near immigrant areas) is well protected, but wide political discourse in media or in person is far more limited.

13

Standing on the outside as I am, I can’t agree with that. U.S. political discourse seems very wide and varied. Maybe you don’t hear cartain opinions that you personally agree with, but that’s not because they’re being suppressed - it’s simply because not many Americans agree with you.

14

Simple answer. One is based upon English Common law (the entire document is named after a well known English Bill, and merely for the most part restates what was the law in England anyway) and common law is based upon prohibitions, you can do anything which is not prohibited, and this applies to legislatures and governments as much as people. Indeed, that’s all the Bill of Rights was initially, restrictions on the US Congress and Federal Government.

The ECHR is based upon the Continental and especially French doctrine of positive rights; in other words it enumerates in great detail the rights and obligations of the parties as opposes to restriction if power.

The system seems to generally work for both traditions.

BTW, I respectfully must disagree with Alessan’s assertion that common law based system do not concern themselves with society effects, they certainly do. Or that continental style systems put too little emphasis on individual. They do. To about the same extent. It’s too simplistic to say otherwise.

15

The ECHR is partially based on English Common Law and partially on Continental law. Considering the effect it has had in different European countries, it has moved Continental systems closer to Common Law with little move the other way.

Additionally, as noted above, many of the Convention’s articles are identical in effect to the Bill of Rights as amended.

16

Positive rights are based upon common law? Somewhere AV Dicey is spinning in his grave. Please do advise what you think is based upon common law.

Actually, I would say the opposite wrt to effects. Art 6 especially has been like a nuclear bomb for the English (and Scottish and N Irish ) legal system. See R v A for an example.

I don’t know how many common law precepts have entered the ECHR… the ECJ (which of course a totally separate institution) has begun to accept the utility of a body of case law, which it had earlier rejected, but the ECHR? I cannot see it.

17

Obviously. Isn’t that the whole point?

Let’s say the legislature in Washington and Paris each enact a law prohibiting the wearing of a burqa in public. Each law gets challenged as a violation of the legally protected right of freedom of religion.

In the American court, the lawyers will point to the law that says Congress shall make no law prohibiting the free exercise of religion. In the French court, the lawyers will point to the law that says everyone has the right to manifest their religion. And then the judges will decide whether a law banning burqas violates the letter of those laws.

And that’s proof that freedom of expression goes to greater lengths in the US. It doesn’t stop at the point where it’s met with general approval. You can express opinions that go beyond the point of public approval and get met with disagreement and stigmatization.

If people aren’t being stigmatized for what they’re saying then somebody’s holding back - or being held back. Freedom of expression isn’t supposed to just express popular opinions. It’s also supposed to express unpopular and offensive opinions. And it’s supposed to express opposition to those unpopular and offensive opinions. If people aren’t screaming at each other then they’re not exercising their full freedom of expression.

18

If only there were a way to amend these rights and formally adopt those amendments into the US constitution. For instance, if only there were a way to ban slavery.

But I think Marin Hyde addressed this issue well in the other thread-- the Federal government has limited authority and cannot simply order the states to do X. Many of us consider this a feature and not a bug.

19

The ECtHR has a considerable body of case law.

20

Aye, and there’s the rub- nearly fifty independent countries come together and write a Convention of Rights despite massively divergent legal systems and languages.

50 American states cannot reach agreement over clear breaches of rights unless a miracle occurs (ERA).