Positive obligations to protect staff and students’ human rights

The European Court of Human Rights has recently ruled that the failure of the Croatian State to prevent the persistent verbal and physical harassment over a period of two and a half years of a severely disabled man was a breach of his human right not to be subjected to torture, inhuman or degrading treatment. The threshold for treatment to be construed as inhuman or degrading is high and was considered to be crossed in this case.

This case raises some interesting issues. While we usually understand the European Convention on Human Rights (ECHR) to be concerned with setting limits on the ability of state authorities (including universities and colleges) to interfere with the rights of individuals, we forget that it also imposes obligations to take positive steps to protect the rights of individuals. In other words, it requires some steps to be taken to protect individuals from actions of other individuals which would threaten their Convention rights.

An illustration of the positive obligation in practice is provided by another case in which a group of anti-abortion protesters complained to the European Court that they had been unable to exercise their right of peaceful assembly because every time they organised a rally, it was attacked by pro-abortion counter-demonstrators. The Court concluded that demonstrations may give offence to persons opposed to the ideas they seek to promote. However, in a democracy, the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate peacefully. What was required was effective policing to enable those who wish to engage in peaceful demonstration to do so free from attack.

It is important not to overestimate the extent of the positive obligations imposed by the ECHR. As the European Court of Human Rights remarked in the Croatian case, the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden.

What then of the positive obligations relating to, say, the right to life? Does that mean, for example, that institutions have a duty to prevent students from self-harming or committing suicide? Though suicide is tragic for the victim, his/her family and for the university/college community, the imposition of such an obligation would be likely to amount to an impossible burden.

Cases relating to the suicide of patients in secure psychiatric hospitals or prisoners harmed by other inmates have established that a positive obligation to prevent suicide/murder arises where:

  • the public authority (e.g. NHS/prison service) knows or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual (e.g. from the criminal acts of a third party or from himself if a patient detained under relevant mental health legislation); and
  • it failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

Universities and colleges, unlike secure psychiatric hospitals or prisons, do not have custody of their students. In the circumstances, a positive obligation to prevent suicide is unlikely to arise.

In most other situations, institutions’ positive obligations in relation to freedom of expression, privacy and freedom of assembly will be discharged by having robust policies (akin to current policies on freedom of speech), a code of conduct that includes a requirement to comply with those policies and a willingness to implement the policies by disciplining breaches.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com

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