8. The European Convention on Human Rights

Question 1

Absolute rights

Answer 1

These rights can never be interfered with in any circumstances whatsoever. States must uphold them at all times.

Question 2

Limited rights

Answer 2

These rights can only be limited in clearly defined and finite situations.

Question 3

Qualified rights

Answer 3

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.

Question 4

What is the test for torture or inhuman treatment within the meaning of Article 3, from UK v Ireland?

Answer 4

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.

Question 5

What is degrading treatment within the meaning of Article 3, from Tyrer v United Kingdom?

Answer 5

An assault on an individual’s dignity and physical integrity.

Question 6

How would Articles 2 and/or 3 of the Convention be violated in regard to deportation?

Answer 6

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.

Question 7

What forms of work do not constitute forced or compulsory labour, in the context of Article 4 - Slavery?

Answer 7

• 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.

Question 8

What is the meaning of “forced or compulsory labour” under Article 4 - Slavery?

Answer 8

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.

Question 9

What is an essential element of forced labour under Article 4 - Slavery?

Answer 9

That the individual had to be exploited.

Question 10

Describe the features of Article 5 – Right to liberty and security

Answer 10

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.

Question 11

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?

Answer 11

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.

Question 12

The meaning of deprivation of liberty in Article 5

Answer 12

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.

Question 13

When will Article 6 - Right to a fair trial be invoked?

Answer 13

Where a case concerns an individual attempting to assert a substantive legal right that is recognised in national law.

Question 14

Article 6(1) (2) and (3)

Answer 14

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.

Question 15

What does Article 7 provide regarding retrospective crimes?

Answer 15

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.

Question 16

What exception does Article 7 contain?

Answer 16

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.

Question 17

What is the proportionality test?

Answer 17

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.

Question 18

What is the 4 part test set out in Bank v Mellatt?

Answer 18

(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.

Question 19

What comes within the scope of private life under Article 8?

Answer 19

• bodily integrity (eg being forced to have medical treatment);
• personal autonomy;
• sexuality; and
• personal information (its holding, use or disclosure).

Question 20

Article 8 and deportation, removal and extradition

Answer 20

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.

Question 21

What factors should the court apply to determine if the deportation, removal or extradition was proportionate?

Answer 21

1. The length of time the individual has been in the country;
2. The seriousness of the offences that the individual has committed;
3. Details of the particular family circumstances of the individual, such as the age of their children or the length of any relationship;
4. The interests of the children;
5. The seriousness of the difficulties that the family may experience in the receiving country; and
6. The nature of the ties that the individual has with both the expelling and the receiving country.

Question 22

Restrictions on Article 9 – Freedom of thought, conscience and religion?

Answer 22

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.

Question 23

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?

Answer 23

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.

Question 24

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?

Answer 24

Particularly where matters of national security are concerned.

Question 25

What is the position with speech that expresses racial or religious intolerance? Article 10.

Answer 25

The ECtHR ruled that the expression of outright racist views would not be protected by Article 10 because such views went beyond what was offensive, shocking or disturbing.

In the United Kingdom, the Public Order Act of 1986 creates several criminal offences in connection with racial, religious and sexual hatred. However, criticism of religions is permitted to a certain extent, because there are wider ethical and moral considerations that might lead someone to criticise particular religious beliefs.

Question 26

Article 11 - Freedom of assembly.

Answer 26

Article 11 does create a positive right to freedom of assembly, and this might suggest that the police should protect those trying to hold a lawful meeting.

The ECtHR has said that the state may infringe freedom of assembly if it does not take positive measures to protect the exercise of the right and to protect protesters from those wishing to stop their protest or attack them.

However, the state is not subject to an absolute obligation to facilitate peaceful protest, so it may be lawful for the authorities to restrict a protest if it is provoking, or is likely to provoke, others to respond violently.

Question 27

Article 11 - Freedom of association.

Answer 27

This is designed to protect an individual’s right to participate
with other people in an organised way in pursuit of a common aim. It applies to a wide variety of bodies, including pressure groups, political parties and religious organisations. In the absence of the right to freedom of association, the state could ban those groups of which it does not approve, such as opposition political parties or movements.

Article 11 is, however, qualified, so the state may lawfully limit the exercise of the right to freedom of association provided that limitation is prescribed by law, is in pursuit of a legitimate aim, and is proportionate to that aim.

Question 28

Legitimate aims

Answer 28

Qualifications must be justified by reference to the aims specified for each right. The principle is that the interests of society may justify restrictions on the rights of individuals.

(a) The interests of national security, public safety or the economic well-being of the country (eg Article 8)

(b) The prevention of disorder or crime (eg Articles 8 and 10)

(c) The protection of health or morals (eg Articles 8 and 10)

(d) The protection of the rights or freedoms of others (eg Article 8)

(e) The prevention or disclosure of information received in confidence (eg Article 10)

(f) Maintaining the authority and impartiality of the judiciary (eg Article 10)

Question 29

What is the status of Article 5 - the right to liberty and security of person?

Answer 29

Article 5 is a limited right, which can be interfered with by the state in certain circumstances. One of these is the lawful detention of persons for the prevention of the spreading of infectious diseases.

Question 30

What are the clearly defined situations where Article 5 can be interfered with?

Answer 30

(a) when an individual is sent to prison after being convicted of a criminal off ence;

(b) when an individual is arrested or detained in order to ensure that the individual complies with a court order;

(c) when an individual is arrested on suspicion of having committed a criminal offence, to prevent them from committing an offence or to prevent them from fleeing after having committed an offence;

(d) when a minor is detained for the purposes of educational supervision;

(e) when someone who is mentally ill is detained for their own protection or the protection of others; and

(f) the detention of individuals in connection with asylum, deportation or extradition.

Question 31

Define a qualified right

Answer 31

A State may restrict the right in order to protect the public interest.

Question 32

Define a limited right

Answer 32

A State can interfere with the right in precisely defined ways.

Question 33

Describe an absolute right

Answer 33

A State has a positive duty to uphold an absolute right.