8. The ECHR Flashcards
Article 3 ECHR
Prohibition of torture, and inhuman or degrading treatment
- absolute right
General Rule wrt Article 3 ECHR and Deportation
In Chahal v United Kingdom the ECtHR held that, where there was a genuine risk that the receiving country would treat an individual in a way that would violate their Article 3 rights, any deportation would be unlawful.
Two types of proceedings which may commence on breach of ECHR rights:
- State applications: proceedings brought by another signatory
- Individual petitions
Individual claiming their ECHR rights have been violated: procedure of their claim
- Must exhaust domestic remedies before going to Strasbourg
- Must claim within time limit: 4 months of final decision (decision of highest UK court with jurisdiction)
- applicants must be personally and directly victims
- applicant must have suffered a disadvantage
Two stage process for claims in Strasbourg
- Admissibility Stage
- Merits Stage
Bringing an ECHR case to strasbourg: if a case is ruled inadmissible at the first stage can the individual appeal?
No
Article 2
- Definition
- Absolute, limited…?
Right to Life
Absolute
Article 3
- Definition
- Absolute, limited…?
(freedom from
torture, inhuman and
degrading treatment
Absolute
Article 4
- Definition
- Absolute, limited…?
Freedom from slavery etc
Absolute (not prison labour)
Article 5
- Definition
- Absolute, limited…?
Liberty and security of the person
Limited - contains exceptions for lawful arrest and detention
Article 6
- Definition
- Status
Right to a fair trial
- absolute as to a fair trial
- limited in relation to the trial being in public
article 7
- Definition
- Status
Punishment according to existing law
- absolute
Article 8
- Definition
- Status
Respect for private and family life
- Qualified
Article 9
- Definition
- Status
Freedom of thought etc. religion
- absolute in relation to freedom of thought
- qualified in relation to manifestation of freedom in worship, teaching, practice or observation
Article 10
- definition
- Status
Freedom of expression
Qualified
Article 11
- Definition
- Status
Freedom of assembly and association
- Qualified
article 12
- Definition
- Status
Right to marry
- absolute, according to national law
Article 1 of Protocol
1
- Definition
- Status
Right to peaceful enjoyment of possessions
- Qualified
Article 2(2): What conditions must be met to lawfully apply force which results in the deprivation of life?
- Force no more than absolutely necessary
- use of force must be in pursuit of:
- defence of any person from unlawful violence
- used to effect a lawful arrest or prevent the escape of a person lawfully detained
- used in action lawfully taken for the purpose of lawfully quelling a riot or insurrection
Compulsory labour that does not contravene Article 4
- work ordinarily done by convicted prisoners as part of their sentence;
- compulsory military service in those European countries that still have this;
- work required in an emergency or calamity threatening the life or well- being of the community; and
- any work or service that forms part of normal civic obligations.
Article 6(1), 6(2), 6(3)
6(1): Article 6(1) sets out the elements that need to be met when the civil rights and obligations of an individual, or criminal charges against an individual, are being determined.
* an individual should have access to the court;
* that court should be independent and impartial;
* the trial should be in public and the decision of the court pronounced publicly;
* the trial should take place within a reasonable time; and
* the trial itself should be conducted in a fair way.
6(2): Article 6(2) provides that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.
6(3): Article 6(3) sets out a series of minimum rights that apply to those charged with a criminal offence.
* to be told promptly and fully the detail of the case against them;
* to have sufficient time and facilities to prepare their defence;
* to defend themselves either personally or with the assistance of a lawyer, who should be
provided by the state where necessary;
* to call witnesses in their defence and to cross- examine witnesses who have given
evidence against them; and
* to have an interpreter provided free where necessary.
When does 6(1) permit trials to be held in private
however, permit the press and public to be excluded from all or part of a trial in a limited number of situations. These situations are:
* where the exclusion is required in the interests of morality, public order or national security;
* where the exclusion is required in the interests of juveniles or the protection of the private life of the parties; or
* where there are special circumstances that, in the opinion of the court, would prejudice the interests of justice.
Maximum amount of time spent in custody before trial: Article 6
182 Days
Does article 6(1) require courts to exclude evidence obtained illegally or improperly?
No, it is up to domestic legislation to do this
Bank Mellat test for proportionality
(i) whether the objective of the measure complained of is sufficiently important to justify the limitation of a fundamental right;
(ii) whether the measure is rationally connected to the objective;
(iii) whether a less intrusive measure could have been used; and
(iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
Relevant factors to consider if Article 8 is invoked wrt deportation / extradition case: stating when it will be proportional to continue
- The length of time the individual has been in the country;
- The seriousness of the offences that the individual has committed;
- Details of the particular family circumstances of the individual, such as the age of their children or the length of any relationship;
- The interests of the children;
- The seriousness of the difficulties that the family may experience in the receiving
country; and - The nature of the ties that the individual has with both the expelling and the receiving country.
