II Council of Europe
| Author | Leo Zwaak |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
| DOI | http://doi.org/10.1177/092405199901700105 |
| Subject Matter | Article |
NQHR
1/1999
honoured are: Sunila Abeyesekera (Sri Lanka) Angelina Acheng Atyam (Uganda), Jimmy
Carter (US), Jose Gregori (Brazil), and Anna Sabatova (Czech Republic).
50th Anniversary
of
the Universal Declaration
of
Human Rights: Speeches
and
Messages
In his address to the General Assembly on 10 December 1998, Kofi Annan referred to the
speech he had held the previous year, reaffirming the universality
of
human rights, and
arguing that human rights are foreign to no culture and native to all nations. He stated that,
throughout this year, 'from the streets
of
Asia to the towns
of
Africa to the courts
of
Europe, justice has been done and freedom has been won'. In his view, human rights have
been proven, beyond any doubt, to be universal. He said that, to the United Nations, this
anniversary was more than a milestone; it was a mirror that reflects how far we have come
and how long we have yet to go. It taught the United Nations that, without human rights,
no peace and no prosperity would ever last. The
UN's
mission was 'to make every day
matter in the fight to broaden the horizons
of
human rights until that day when no man is
tortured, no woman is abused and no child is denied his dignity - when all human beings
enjoy their human rights'.
In her message, the High Commissioner for Human Rights reiterated that the Universal
Declaration was not just another international document; it was the primary proclamation
of
the international community's commitment to human rights as
'a
common standard
of
achievement for all peoples and all nations'. She stated that 'its message is one
of
hope,
equality, liberation and empowerment'. She pointed out that the Universal Declaration
provided the words,
'now
our deeds are necessary to make the difference', and reaffirmed
the important role
of
the civil society. Her message concluded by stating 'All human rights
for all - this should be our common call to action on this anniversary and in the years to
come. Each
of
us has an important role to play in this endeavour. I am convinced that by
combining our action and determination, by building partnerships between governments
and civil society, international organisations and the media, religious and academic
communities, we will succeed in realising the vision
of
the future which the Universal
Declaration first called for half a century ago.'
Appointment
Secretary-General Kofi Annan appointed on 22 October 1998 Bertie Gangapersaud
Ramcharan
of
Guyana as Deputy United Nations High Commissioner for Human Rights,
at the Assistant Secretary-General level, effective I December 1998.
II COUNCIL OF EUROPE
Leo Zwaak
European
Court
of Human Rights
28 October 1998. Osman (the United Kingdom). Mrs. Osman's husband was killed by her
son's former teacher. Her son was seriously wounded in the same incident. The case
concerned the alleged failure
of
the authorities to protect the right to life
of
the first
applicant' husband and
of
the second applicant from the threat posed by an individual, and
the lawfulness
of
restrictions on the applicants' right to access to a court to sue the
authorities for damage caused by the said failure. The Court noted that it was not disputed
that Article 2 may in welldefined circumstances imply a positive obligation on the
58
Human Rights News
authorities to take preventive operational measures to protect an individual whose life is
at risk from the criminal acts
of
another individual. As to the scope
of
that obligation the
Court considered that, bearing in mind the difficulties involved in policing modem
societies, the unpredictability
of
human conduct and the operational choices which must
be made in terms
of
priorities and resources, any such obligation must be interpreted in
a way which does not impose an impossible or disproportionate burden on the authorities.
The Court expressed the opinion that it was sufficient in this regard for an applicant to
show that the authorities did not do all that could be reasonably expected
of
them to avoid
a real and immediate risk to life
of
which they have or ought to have knowledge. While
the teacher's attachment to Ahmet Osman could be judged by the police officers who
visited the school to be most reprehensible from a professional point
of
view, there was
never any suggestion that Ahmet Osman was at risk sexually from him, less so that his life
was in danger. Accordingly, at that juncture, the police's appreciation
of
the situation and
their decision to treat it as a matter internal to the school could not be considered
unreasonable. The Court considered that
if
it had appeared to a professional psychiatrist
that the teacher did not at the time display any signs
of
mental illness or a propensity to
violence it would be unreasonable to have expected the police to have construed the actions
of
the teacher as they were reported to them by the school as those
of
amentally disturbed
and highly dangerous individual. In assessing the level
of
knowledge which could be
imputed to the police at the relevant time, the Court also had close regard to the series
of
acts
of
vandalism against the Osmans' home and property. The Court also examined
carefully the strength
of
the applicants' arguments that the teacher on occasions
communicated to the police, either directly or indirectly, his murderous intentions. Having
carefully examined the facts
of
the case, the Court concluded that the applicants had failed
to point to any decisive stage in the sequence
of
the events leading up to the tragic
shooting when it could be said that the police knew or ought to have known that the lives
of
the Osman family were at real and immediate risk from the teacher. In the
circumstances
of
the present case, they could not be criticised for attaching weight to the
presumption
of
innocence or failing to use powers
of
arrest, search and seizure having
regard to their reasonably held view that they lacked at relevant times the required standard
of
suspicion to use those powers or that any action taken would in fact have produced
concrete results. For these reasons the Court concluded that there had been no violation
of
Article 2. The Court did not accept the Government's argument that the applicants could
not rely on Article 6 given that the Court
of
Appeal in application
of
the exclusionary rule
established by the House
of
Lords in the
Hill
Case dismissed their civil action as showing
no cause
of
action. The Court considered that the applicants must be taken to have had a
right, derived from the law
of
negligence, to seek an adjudication on the admissibility and
merits
of
an arguable claim that they were in a relationship
of
proximity to the police, that
the harm caused was foreseeable and that in the circumstances it was fair, just and
reasonable not to apply the exclusionary rule outlined in the
Hill
Case. In the view
of
the
Court the assertion
of
that right by the applicants was in itself sufficient to ensure the
applicability
of
Article 6(1). The Court noted that the applicants' claim never fully
proceeded to trial in that there was never any determination on its merits nor on the facts
on which it was based. The applicants' claim was rejected by the Court
of
Appeal since
it was found to fall squarely within the scope
of
the exclusionary rule formulated by the
House
of
Lords in the
Hill
Case. It appeared to the Court that in the instant case the Court
of
Appeal proceeded on the basis that the rule provided awatertight defence to the police.
It further observed that the application
of
the rule in this manner without further enquiry
59
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