8. The European Convention on Human Rights Flashcards
Absolute rights
These rights can never be interfered with in any circumstances whatsoever. States must uphold them at all times.
Limited rights
These rights can only be limited in clearly defined and finite situations.
Qualified rights
These rights require a balance between the rights of the individual and the wider public interest, and so may be interfered with to protect an important general interest or the rights of others.
What is the test for torture or inhuman treatment within the meaning of Article 3, from UK v Ireland?
Torture = deliberate inhuman treatment causing very serious
and cruel suffering
Inhuman treatment = treatment or punishment likely to cause actual bodily injury or intense physical and mental suffering.
What is degrading treatment within the meaning of Article 3, from Tyrer v United Kingdom?
An assault on an individual’s dignity and physical integrity.
How would Articles 2 and/or 3 of the Convention be violated in regard to deportation?
If an individual were to be deported to, removed to or extradited to a country where there was a real risk that they might be killed, tortured or treated in any other way that would violate one or both of these articles.
It would now also violate Article 2 for an individual to be deported, removed or extradited to a state if there are substantial grounds to believe that there is a real risk of that individual facing the death penalty.
What forms of work do not constitute forced or compulsory labour, in the context of Article 4 - Slavery?
- 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.
What is the meaning of “forced or compulsory labour” under Article 4 - Slavery?
Work or service that an individual was forced to do
against their will.
Range of circumstances to consider, such as:
- the type of work involved;
- the penalty or burden to be imposed if the work was not carried out;
- the level of hardship or oppression to which the individual was subjected.
What is an essential element of forced labour under Article 4 - Slavery?
That the individual had to be exploited.
Describe the features of Article 5 – Right to liberty and security
It is a limited article - it creates a right to liberty, but that
right is subject to several specific limitations set out in the rest of the Article. Also, even if one of those limited situations exists, the deprivation of an individual’s liberty must still be carried out through due process of law.
What are the most significant ways in which the state may lawfully restrict the liberty of an individual under Article 5 - Right to liberty and security?
Arrest and detention by the police; imprisonment after
conviction of a criminal offence; detention of the mentally ill in hospitals; and detention of foreigners in the context of asylum and deportation cases.
The meaning of deprivation of liberty in Article 5
What constitutes a deprivation of liberty is a matter of judgment based on all the circumstances.
The court should consider the situation of the particular
individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on them in the context of the life they might otherwise have been living.
When will Article 6 - Right to a fair trial be invoked?
Where a case concerns an individual attempting to assert a substantive legal right that is recognised in national law.
Article 6(1) (2) and (3)
Article 6(1) = applie in both civil and criminal cases.
Article 6(2) = everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.
Article 6(3) = series of minimum rights that apply to those charged with a criminal offence.
What does Article 7 provide regarding retrospective crimes?
A person cannot be charged with a criminal offence for conduct that was not a crime when they committed it.
However, it does not preclude the gradual clarification of the principles of criminal liability on a case-by-case basis provided the development could reasonably be foreseen.
What exception does Article 7 contain?
People can still be prosecuted retrospectively for conduct that was ‘criminal according to the general principles of law
recognised by civilised nations’, even if the conduct was not criminal at the time it was carried out.
This was included to ensure that after World War II Article 7(1) did not prevent individuals from being prosecuted for war crimes that did not constitute criminal offences in Nazi
Germany and other relevant states at the time of their commission.
What is the proportionality test?
This is used by the courts when states are seeking to justify interfering with a qualified Convention right.
The doctrine of proportionality ensures that there is a fair balance between pursuing a legitimate aim and the protection of Convention rights.
What is the 4 part test set out in Bank v Mellatt?
(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.
What comes within the scope of private life under Article 8?
- bodily integrity (eg being forced to have medical treatment);
- personal autonomy;
- sexuality; and
- personal information (its holding, use or disclosure).
Article 8 and deportation, removal and extradition
The usual situation in which those required to leave the UK raise arguments under Article 8 is when an individual argues that their deportation, removal or extradition will
disproportionately damage family ties and relationships that they have established while in the UK.
What factors should the court apply to determine if the deportation, removal or extradition was proportionate?
- 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.
Restrictions on Article 9 – Freedom of thought, conscience and religion?
Eweida’s cross was discreet and could not have detracted from her professional appearance, and there was no evidence that the wearing of other, previously authorised, items of religious clothing by other employees had had any negative impact on British Airways’ brand or image.
The Court found that the reason for asking Chaplin to remove her cross – namely the protection of health and safety on a hospital ward – was much more important
than the reason given to Eweida. The Court also said that hospital managers were better placed to make decisions about clinical safety than a court.
Why did the House of Lords find that the school had acted in a proportionate manner, and there had been no unlawful interference with Shabina Begum’s rights?
What constituted interference depended on all the circumstances of the case, including the extent to which an individual could reasonably expect to be at liberty to manifest their beliefs in practice:
Begum’s family had chosen for her a school outside their own catchment area. There was no evidence to show that there was any difficulty in her attending one of the three
schools in her catchment area that permitted the wearing of the jilbab.
Also, Shabina Begum had worn the shalwar kameez during her first two years at the school without objection.
In addition, the school had taken pains to devise a uniform policy that respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute, and the rules were acceptable to mainstream Muslim opinion.
Although the ECtHR has repeatedly stressed the importance of protecting political free speech, what circumstances may a state lawfully interfere with the exercise of Article 10?
Particularly where matters of national security are concerned.
