9 - The European Convention on Human Rights Flashcards
What is the purpose and significance of the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA)?
The ECHR outlines fundamental principles of human rights and was established after WWII to prevent future atrocities, such as the Holocaust.
The UK ratified the ECHR in 1951, which bound it under international law to uphold the rights listed in the ECHR.
Under international law, other states and individuals can bring claims against the UK in the European Court of Human Rights (ECtHR) if it breaches the ECHR.
The Human Rights Act 1998 (HRA) incorporated ECHR rights into UK domestic law under ‘Convention rights’, making them enforceable in the UK.
What is the historical background and aim of the European Convention on Human Rights (ECHR)?
The ECHR was adopted in 1950 by the Council of Europe, which was formed after WWII to establish a common European heritage and prevent future human rights violations.
The ECHR was a response to the Holocaust and the rise of Communism in Eastern Europe. It aimed to uphold the rule of law and fundamental freedoms.
The ECHR has been signed by 47 European states, with Belarus as the only European state not to sign. Due to the war in Ukraine, Russia was expelled from the Council of Europe on 16 March 2022, ceasing to be a party to the ECHR on 16 September 2022.
The UK ratified the ECHR in 1951, and as a result, the UK is bound to comply with its provisions under international law. The ECtHR in Strasbourg hears cases and issues binding judgments on states, including the UK.
What types of proceedings can be brought under the ECHR, and who can initiate them?
State applications: A state can bring proceedings against another state if it is in violation of the ECHR.
- Example: Georgia lodged two separate applications against Russia, related to ethnic deportations and military conduct in 2007 and 2008.
- Example: Ireland lodged an application against the UK regarding the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.
Individual petitions: Individuals can bring proceedings before the European Court of Human Rights (ECtHR) if their rights under the ECHR have been breached.
- The individual must show they have exhausted all domestic legal remedies and file within four months of the final decision.
- The individual must be a direct victim of the violation and have suffered a significant disadvantage.
What are the two main stages of proceedings before the European Court of Human Rights (ECtHR)?
Admissibility stage: A single-judge formation declares an application inadmissible if it is obviously so. There is no right of appeal against this decision.
Merits stage: If the application is admissible:
- Cases covered by well-established case law are allocated to a three-member Committee, which gives a final decision or judgment.
- Other cases are heard by a Chamber of judges, which gives a majority decision. The Chamber’s judgment becomes final after three months unless referred to the Grand Chamber for fresh consideration.
- The Grand Chamber may reconsider the case and hold a public hearing if necessary. Its judgment is final.
The Committee of Ministers of the Council of Europe is responsible for ensuring that states comply with ECtHR judgments.
What are absolute, limited, and qualified rights under the European Convention on Human Rights (ECHR)?
Absolute rights: These rights can never be interfered with under any circumstances. States are required to uphold them at all times (e.g., Article 3: freedom from torture).
Limited rights: These rights can only be restricted in specific and clearly defined situations (e.g., Article 5: liberty and security of the person, which contains exceptions for lawful arrest and detention).
Qualified rights: These rights require a balance between the individual’s rights and the public interest, allowing for interference if necessary to protect general interests or the rights of others (e.g., Article 8: right to respect for private and family life).
Which rights are absolute, limited, and qualified rights under the European Convention on Human Rights (ECHR)?
Absolute rights:
- Article 2: not possible to derogate from the right to life.
- Article 3: freedom from torture and inhuman or degrading treatment.
- Article 4: freedom from slavery, with certain activities excluded from the definition of compulsory labour.
- Article 6: absolute as to fair trial.
- Article 7 - punishment according to existing law, aboslute right.
- Article 9: absolute in relation to freedom of thought, etc.
- Article 12: right to marry, absolute but according to national law governing the exercise of the right.
Limited rights:
- Article 2: article 2(2)(a) to (c) provides specific circumstances in which use of fatal force by the state may not be deemed a breach of the Convention.
- Article 5: liberty and security of the person, with exceptions for lawful arrest and detention, contains exceptions in relation to lawful arrest and detention.
- Article 6: limited regarding whether the trial is held in public.
Qualified rights:
- Article 8: respect for private and family life.
- Article 9: qualified in relation to manisfestation of freedom in worship, teaching, practice, or observation.
- Article 10: freedom of expression.
- Article 11: freedom of assembly and association.
- Article 1 of Protocol 1: right to peaceful enjoyment of possessions.
How are qualified rights under the ECHR restricted, and what are the general requirements for these qualifications to be justified?
Only express restrictions: Only restrictions that are explicitly expressed in the ECHR are recognised, and they must be used for the purpose for which they were prescribed (Article 18).
Prescribed by law: Restrictions must be legally authorised and in accordance with domestic law, which means:
- The law must be accessible (available to the public in published form) and sufficiently precise enough to allow citizens to regulate their behaviour.
- Example: In Malone v UK (1984), the ECtHR held that UK law on telephone tapping was not clear enough to provide a sufficient legal basis for restriction on the right to private life.
- Example: In Purdy v DPP [2009], the lack of clear guidelines on assisted suicide made the restriction on private life (Article 8) unlawful, as the law was not sufficiently clear for a person to predict the likelihood of prosecution.
What are the legitimate aims that justify restrictions on qualified rights under the ECHR?
Restrictions on qualified rights must be justified by reference to the specific legitimate aims recognised in the ECHR.
These frequently include:
- National security, public safety, or economic well-being (e.g., Article 8).
- Prevention of disorder or crime (e.g., Articles 8 and 10).
- Protection of health or morals (e.g., Articles 8 and 10).
- Protection of the rights and freedoms of others (e.g., Article 8).
- Preventing the disclosure of confidential information (e.g., Article 10).
- Maintaining the authority and impartiality of the judiciary (e.g., Article 10).
What does it mean for a qualified right to be ‘necessary in a democratic society’ under the ECHR?
Necessary in a democratic society: Most qualified rights are subject to restrictions that must meet this standard, meaning:
- There must be a pressing social need for the restriction, rather than an absolute necessity.
- The restriction must be proportionate, meaning it does not go further than necessary to achieve the legitimate aim.
- Example: Restrictions on freedom of expression for public order must be shown to be a proportionate response to concerns.
- The state is allowed a margin of appreciation to judge necessity, meaning different states may reach different conclusions on what is required in the public interest.
- Example: Handyside v UK (1976) established the margin of appreciation principle.
- A democratic society values tolerance, and laws criminalising private conduct, such as homosexuality, contrary to Article 8, are not excused by majority opinion (e.g., Dudgeon v UK (1982)).
What is a derogation under the ECHR, and when can it be applied?
Derogations: Under Article 15 of the ECHR, a state may derogate (temporarily suspend) certain rights during:
- Times of war.
- Public emergencies threatening the life of the nation.
However, no derogation is allowed for certain rights, including:
- Article 3: Freedom from torture.
- Article 4(1): Freedom from slavery.
- Article 7: Protection from retrospective criminal offences.
- Article 2: Right to life, except in cases of deaths from lawful acts of war.
UK derogations:
The UK has derogated from Article 5 (personal liberty) under terrorism prevention legislation, but these derogations have been challenged and quashed (e.g., A v Secretary of State for the Home Department).
Section 14 of the Human Rights Act 1998 sets out a statutory procedure for enacting derogations as part of UK law.
What is the scope of the right to life under Article 2 of the European Convention on Human Rights?
Article 2 is an absolute right, but it includes exceptions that define its scope:
- Prohibits the state from taking life.
- Positive duty on the state to protect life (Osman v United Kingdom [1997]).
Death penalty: Article 2 does not prohibit it, but Protocol 6 (ratified by the UK in 1999) does, except in times of war or imminent threat of war.
No derogation from Article 2 is allowed except for lawful acts of war.
Article 2(2) permits the use of force resulting in death, but only if:
- The use of force is no more than absolutely necessary. In other words, it must show that the degree of force used against person A was proportionate to achieve the legitimate aim of protecting person B. This is where the right is limited.
- The force is used for one of three purposes:
1. Defending any person from unlawful violence.
2. Effecting a lawful arrest or preventing the escape of a lawfully detained person.
3. Lawfully quelling a riot or insurrection.
Example: McCann v United Kingdom (1996), the court held that Article 2 had been violated due to insufficient regard for the protection of life in the planning and control of an operation, even though the SAS soldiers did not violate Article 2 directly.
How has case law defined the scope of Article 2 regarding embryos, the right to die, and the duty to investigate?
Embryos/foetuses:
Article 2 does not protect embryos from destruction (Evans v UK [2006]).
Foetuses have no right to life under Article 2 (Re F (In Utero), Re MB (Medical Treatment)).
Right to die:
Article 2 does not encompass a right to die (Pretty v UK [2002]).
In Conway v Secretary of State for Justice [2018], the court held that the ban on assisted suicide under s 2(1) of the Suicide Act was a proportionate interference with Article 8 (right to private life).
Duty to investigate:
Article 2 requires the state to conduct thorough investigations into deaths where there is an allegation of a breach (e.g., Da Silva v United Kingdom [2016] concerning the killing of Jean Charles de Menezes by the police).
What is the scope of Article 3 of the European Convention on Human Rights concerning torture, inhuman, or degrading treatment?
Article 3: An absolute right prohibiting torture, inhuman or degrading treatment or punishment, with no derogations allowed.
In Ireland v United Kingdom (1979–1980), the ECtHR:
- Defined torture as deliberate inhuman treatment causing severe suffering.
- Defined inhuman treatment as treatment causing physical or mental suffering.
- Objective factors, such as the manner of the treatment and its duration, and subjective factors, such as the psychological effects on the individual person concerned, will be taken into account.
- Found that the interrogation techniques used on IRA suspects amounted to inhuman treatment but not torture.
It is clear that the standard of what constitutes ‘inhuman and degrading treatment’ is set at a high level. Only serious ill-treatment or neglect falls within its scope, so this must attain a minimum level of severity. Assessment of that minimum is relative as it depends on all the circumstances of the case.
Examples: In Tyrer v United Kingdom (1979–1980), the ECtHR ruled that corporal punishment constituted degrading treatment, violating Article 3.
A v United Kingdom (1999): Found that a child beaten with a garden cane had suffered treatment sufficient to engage Article 3, resulting in a change in UK law to protect children from excessive punishment.
How does Article 3 apply in deportation, removal, and extradition cases?
The ECtHR has ruled that deportation, removal, or extradition to a country where there is a real risk of torture or inhuman treatment violates Article 3.
- Soering v United Kingdom (1999): Extradition to the US would violate Article 3 due to the suffering caused by prolonged time on death row.
- Chahal v United Kingdom (1997): Deportation of Chahal to India was prohibited due to the risk of torture by Indian authorities, even in cases involving national security.
- R (AAA (Syria)) v Secretary of State for the Home Department [2023]: The Supreme Court ruled that deporting asylum seekers to Rwanda would breach Article 3 due to the inadequacies of Rwanda’s asylum system and the risk of further deportation to countries where they might face ill-treatment.
- In Napier, the ECtHR found that prison conditions which had a detrimental effect on the applicant’s physical health could amount to inhuman or degrading treatment.
How has the European Convention on Human Rights been applied to the Northern Ireland Troubles in relation to Articles 2 and 3?
In Re Dillon (Northern Ireland Troubles (Legacy and Reconciliation) Act 2023) [2024], the Northern Ireland High Court ruled that the provisions of the Legacy Act, which granted immunity from prosecution, breached Articles 2 and 3.
The court found that wide-ranging amnesties were not justified, as the Northern Ireland conflict had ended over 20 years prior, and the Legacy Act failed to provide exceptions for grave breaches of fundamental rights, including allegations of torture under Article 3.
What does Article 4 of the ECHR prohibit, and are there any exceptions to its rule on forced or compulsory labour?
This is an absolute right. Article 4 of the ECHR prohibits:
- Slavery: No one shall be held in slavery or servitude (Article 4(1)).
- Forced or compulsory labour: No one shall be required to perform forced or compulsory labour (Article 4(2)).
Exceptions under Article 4(3):
- Work performed by convicted prisoners as part of their sentence.
- Compulsory military service.
- Work required during an emergency or calamity threatening the life or well-being of the community.
- Work or service that is part of normal civic obligations.
These exceptions ensure that not all mandatory labour constitutes a breach of Article 4.
How does Article 4 of the ECHR define slavery, how does this differ from servitude, what historical context is it responding to?
Slavery is defined as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (Article 1 of the 1926 Slavery Convention).
Servitude differs from slavery in that a person is not owned by another but may still be forced to live on someone else’s property with no ability to change their condition.
This creates a condition of dependency and compulsion, but without the complete ownership that characterises slavery.
Context: Article 4 was drafted in response to the forced labour practices by Nazi Germany during World War II, when millions were compelled to support the Nazi war effort.
How does the European Court of Human Rights define forced or compulsory labour under Article 4 of the ECHR, and what factors are considered in determining it?
Forced or compulsory labour involves work that an individual is forced to perform against their will.
Factors considered include:
- The nature of the work.
- The penalty for not performing it.
- The level of hardship or oppression endured by the individual.
Example (Van der Mussele v Belgium, 1984): Trainee lawyers argued that unpaid legal work for poor clients violated Article 4, but the Court disagreed, noting that this work provided them with valuable experience and did not prevent them from engaging in paid work for other clients.
What are the lawful situations under Article 5 of the ECHR where the state may deprive someone of their liberty?
This is a limited right, stating that “no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”
The state may lawfully deprive someone of their liberty under Article 5(1)(a)–(f) in the following situations:
(a) After conviction of a criminal offence.
(b) Arrest or detention to ensure compliance with a court order.
(c) Arrest on reasonable suspicion of having committed a crime, to prevent an offence, or to stop someone fleeing after committing a crime.
(d) Detention of a minor for educational supervision.
(e) Detention for mental health reasons for the individual’s or others’ protection.
(f) Detention in connection with asylum, deportation, or extradition.
Even if one of these limitations applies, the deprivation must follow a procedure prescribed by law, ensuring it is not arbitrary and complies with legal standards.
For lawful arrest and detention, Article 5 requires:
- Breach, or reasonable suspicion of breach, of some known law (Article 5(1)(a) and (c));
- The giving of reasons for arrest and charge (Article 5(2));
- A prompt and fair trial (Article 5(3) and (6));
- The availability of judicial review of the legality of detention (Article 5(4));
- The right to compensation for breach of Article 5 (Article 5(5)).
What does deprivation of liberty mean under Article 5 of the ECHR, and how has it been interpreted in case law?
- Deprivation of liberty occurs when a person is confined or restricted to such a degree that it goes beyond a mere limitation of movement.
- In Engel v Netherlands (1976), the European Court of Human Rights (ECtHR) held that the distinction between deprivation and restriction depends on the ‘concrete situation’ of the individual.
- It is determined based on the degree or intensity of the restrictions, not just the nature of the confinement.
- Restrictions like Anti-Social Behaviour Orders or Football Banning Orders do not engage Article 5, as they do not constitute deprivation of liberty.
Example (Guzzardi v Italy, 1980): Guzzardi was confined to a small area on an island with strict limitations on his movement, which the Court found amounted to deprivation of liberty, even though he was not in a traditional prison setting.
What are the key sections of Article 5?
Article 5(1) provides the basic, substantive right to liberty and the circumstances in which the state can lawfully deprive persons of their liberty, such as arrest.
Article 5(2) governs the right for a person to be informed of the reasons for their arrest.
Article 5(3) provides that a person who has been arrested and detained shall be ‘brought promptly before a judge’.
Article 5(4) states that a person who has been deprived of their liberty by the state ‘shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.
Article 5(5) contains an enforceable right to compensation for a victim of an article 5 breach.
(4) and (5) are less relevant.
What does the requirement for a deprivation of liberty to be ‘prescribed by law’ under Article 5(1) entail?
A deprivation of liberty must have a basis in national law, as established in Silver v UK (1983), meaning the state must point to a specific legal rule or regime authorising its actions to avoid arbitrary interference with rights.
The legal basis must be accessible and foreseeable, as outlined in Sunday Times v UK (1979-80), so that citizens can regulate their conduct and foresee the consequences of their actions.
The law does not need to be absolutely certain, as some vagueness is permissible to allow laws to adapt to changing circumstances.
The test for ‘prescribed by law’ applies across various rights, including Article 5, as confirmed in Steel and others v UK (2000).
What did the European Court of Human Rights (ECtHR) decide in Gillan and Quinton v UK (2010) regarding the requirement for a law to be ‘prescribed by law’?
The ECtHR ruled that domestic law must provide sufficient protection against arbitrary interference by public authorities with rights safeguarded by the Convention.
- The case involved the stop and search powers under section 44 of the Terrorism Act 2000, which allowed police to stop and search individuals without suspicion in a designated area.
- The ECtHR found that these powers lacked sufficient safeguards, as authorisations were granted on rolling bases and were based on subjective factors, with no objective basis required for the stop and search.
- This arbitrary nature of the powers led the court to rule that they did not meet the standard required by the ‘prescribed by law’ test in Sunday Times v UK.
What are the procedural safeguards under Article 5 of the ECHR to prevent the arbitrary deprivation of liberty in terms of arrest and detention?
The ECtHR has outlined several safeguards to ensure a deprivation of liberty is not arbitrary:
- The detention must be carried out in good faith.
- It must be necessary, meaning less severe measures have been considered and rejected.
- The length of detention must not exceed what is reasonably required.
- Proper records of the detention must be kept.
- The detention must be lawful under national law.
Example (Saadi v UK, 2008): The ECtHR held that the detention of an asylum seeker was lawful, but it emphasised that the detention should be as short as possible and properly justified to avoid arbitrariness.
What are the key provisions of Article 5(1)(c) of the ECHR regarding arrest and detention?
Article 5(1)(c) allows for the lawful arrest and detention of a person:
- On reasonable suspicion of having committed an offence, or
- When it is reasonably necessary to prevent the person from committing an offence or fleeing after doing so.
The first limb concerns arrest on suspicion of having committed an offence, requiring objective evidence that would satisfy an objective observer, as outlined in Fox, Campbell and Hartley v UK (1990).
The second limb permits detention to prevent a person from committing an offence or fleeing, provided the detention is proportionate and necessary.
What does the reasonable suspicion requirement under Article 5(1)(c) of the ECHR entail regarding arrest and detention?
The ECtHR ruled in Fox, Campbell and Hartley v UK (1990) that reasonable suspicion under Article 5(1)(c) requires evidence of facts or information that would satisfy an objective observer that the person may have committed the offence.
It is not enough to arrest someone based solely on previous convictions or general suspicion.
Example: In Fox, Campbell and Hartley, the ECtHR found that the mere fact that two of the suspects had prior terrorism convictions was insufficient to justify their arrest without additional evidence supporting the suspicion.
How is the second limb of Article 5(1)(c) concerning preventive detention interpreted?
The second limb allows for arrest and detention when it is reasonably necessary to prevent someone from committing an offence or fleeing after doing so.
- The ECtHR in Ostendorf v Germany ruled that this must be for the purpose of bringing the person before a legal authority.
- However, the UK Supreme Court in R (Hicks) v Commissioner of Police (2017) disagreed, holding that short-term detention for preventive purposes was permissible even if the person was not immediately brought before a legal authority.
- This view was later confirmed by the Grand Chamber of the ECtHR in S, V & A v Denmark (2019), allowing short-term detention outside of criminal proceedings to prevent a concrete and specific offence.
In cases of public order, such as kettling of protesters, how does the ECtHR assess whether there has been a deprivation of liberty under Article 5 of the ECHR?
- ‘Kettling’ is a police tactic to confine crowds in a specific area during demonstrations, which may last for several hours.
- The Court looks at the type, duration, effects, and manner of implementation of the restriction.
Example (Austin v UK, 2012): The ECtHR found that containing protesters within a police cordon for several hours did not constitute a deprivation of liberty because the context – maintaining public order during a volatile protest – justified the measure, and attempts were made to disperse the crowd when possible.
The Grand Chamber concluded that police duties must not be undermined, and that the cordon was the least intrusive and most effective crowd control measure. The ruling was based on the specific facts of the case.
What does Article 5(2) of the ECHR require in terms of informing an individual about their arrest?
Article 5(2) requires that everyone who is arrested must be informed promptly of the reasons for their arrest and of any charges against them.
The information must be provided in a language the person understands.
The case of Fox, Campbell and Hartley v UK (1990) illustrated this principle, where simply telling someone they were arrested on suspicion of being a terrorist was too broad and failed to meet the requirement of providing sufficient detail.
However, subsequent questioning in relation to specific offences within a reasonable timeframe provided enough information for the suspects to understand why they had been arrested, meaning there was no ultimate breach of Article 5(2).
What is the guarantee under Article 5(3) of the ECHR concerning the length of detention?
Article 5(3) guarantees that anyone arrested and detained under Article 5(1)(c) must be brought promptly before a judge.
- The purpose of this safeguard, as described in McKay v UK (2007), is to prevent ill-treatment, abuse of power by law enforcement, and to minimise unjustified interference with individual liberty.
- In Brogan v UK (1989), the European Court of Human Rights (ECtHR) interpreted ‘promptly’ strictly, noting the French term ‘aussitôt’ means ‘immediately’.
- The court ruled that holding a terrorism suspect for four days and six hours without judicial authorisation was excessive and would undermine the guarantee against arbitrary interference.
- However, the case also acknowledged that national authorities dealing with terrorism cases might face special challenges justifying some flexibility in interpreting ‘promptly’.
What does Article 5(4) of the ECHR provide regarding the lawfulness of on-going detention?
Article 5(4) guarantees the right for anyone deprived of liberty by arrest or detention to challenge the lawfulness of their detention in a court or judicial body.
The review of detention must be conducted speedily, and any unlawful detention should result in the person’s release.
In Hirst v UK (2001), the ECtHR ruled that delays of 21 months and 2 years between Parole Board reviews violated Article 5(4).
- The court stressed that, where national law mandates automatic periodic review of detention, such reviews must occur regularly and promptly.
- Intervals of more than one year between reviews are generally unreasonable, and the delays in Hirst were not justified by the circumstances.
What right does Article 5(5) of the ECHR provide to individuals who have suffered a breach of their rights?
Article 5(5) guarantees the right to an enforceable claim for compensation to anyone who has been the victim of a violation of Article 5 by the state.
However, in the UK, compensation for human rights breaches is provided through section 8 of the Human Rights Act (HRA).
Therefore, the Article 5(5) right to compensation would only come into play if an individual needed to take their case to the European Court of Human Rights in Strasbourg after exhausting domestic remedies.
What does Article 6(1) of the European Convention on Human Rights encompass regarding civil rights and obligations, and how has the ECtHR interpreted this term?
Article 6(1) applies to civil cases, but it does not define ‘civil rights and obligations.’
The European Court of Human Rights (ECtHR) interprets this term broadly, beyond national law definitions.
Article 6 is invoked when an individual asserts a substantive legal right recognised in national law.
Typical civil cases include:
- Enforcement of private law rights in contract, tort, or property (e.g., breach of contract or claims for damages from personal injury).
- Employment law cases affecting an individual’s ability to pursue their profession.
- Administrative decisions by local authorities regarding licenses or planning permissions, where a fair trial is necessary, allowing for judicial review if fairness is compromised.
How does the European Court of Human Rights define ‘criminal charges’ under Article 6(1) and what are the implications for disciplinary and administrative cases?
The definition of a ‘criminal charge’ is determined by the ECtHR, notably in Engel v The Netherlands.
Key criteria for determining if a legal process constitutes a criminal charge include:
- Classification by national law as ‘criminal’ rather than disciplinary or administrative, which triggers Article 6 applicability.
- If not classified as criminal, the court assesses if proceedings resemble a criminal trial (e.g., a finding of guilt or innocence is required).
- The purpose of the proceedings is also considered; if they aim to impose punishment, they are likely deemed to involve a criminal charge.
The ECtHR has found that prison discipline and administrative offences, such as road traffic or environmental matters, also constitute criminal charges under Article 6(1).
