Art. 6 & 8 Flashcards
How can the Court act in regard to Art 6?
Based on the ‘4th instance doctrine’, the Court may only check whether no violation of Art. 6 occurred in the proceedings and whether the proceedings were fair. However, the Court cannot rule on substance, sentence etc.
What is a criminal charge?
It is an official notification given to a person by the competent authorities of an allegation that he committed a crime.
What are the requirements of a fair trial?
A trial is deemed fair if there is a public hearing, within a reasonable time, by an independent and impartial tribunal that was established by law.
- Parties are given an equal opportunity to present their case
- Opportunity to know and comment on evidence presented
- Right to appear in person
- Ruling is justified
How is a tribunal independent?
A tribunal is independent if it is separate from the other two branches, when it is established by the law and is capable of ruling objectively on a case and capable of identifying and punishing any wrongdoers.
What did the court say in Pirtiaho case?
The court came up with an objective and subjective test to whether a judge is impartial. Firstly, did the judge have any personal bias and secondly did the tribunal offer sufficient guarantees to exclude any doubt thereto?
The impartiality of a judge is presumed until proven otherwise.
What is the justification scheme for interferences? Where is it derived from?
Firstly, burden of proof is on individual.
1) Does the complaint fall under the scope of the article/Convention?
2) Was there an interference by the authorities?
If yes, then burden of proof lies on state
1) Can the interference be justified?
a. Does it have a legal basis?
b. Is it accessible and foreseeable?
2) Does it pursue a legitimate aim?
3) Is it necessary in a democratic society?
S&MARPER
How are unmarried couples assessed?
Parties who live together outside marriage. Factors to be considered such as whether the couple lives together, the length of the relationship and whether they demonstrated commitment to each other i.e. having children
What positive obligations arise from Art. 8
State authorities must take action to secure the private & family life of people and must protect individuals from interference by other individuals.
Also refrain from interfering with this right unless it is in accordance with the law.
What happens if authorities interfere with the family life of a non-national?
The right of a non-national to reside in a country is not guaranteed by Art. 8 ECHR. If there is an interference with the family life due to expulsion/deportation, decision must be in accordance with the law (legal basis, accessible and foreseeable) and should not be arbitrary in any case. The justification scheme also applies.
What did the court rule in the Goodwin case?
In determining a positive obligation, a fair balance test must be struck between the general interest of the community and the personal interest of the individual
What was Von Hannover case about?
Where private life (Art 8) conflicts with freedom of expression (Art. 10) the court considers:
- The contribution to the debate of general interest
- Fame of person concerned
- Prior conduct of person concerned
- Content, for and publication consequences
- Circumstances in which photos were taken
What positive obligations arise out of private life?
Adopting measures to secure the respect for private and family life.
What was the case of SAS v France?
Justification scheme for Arts. 8-10
