ECHR Flashcards
What do human rights laws generally have?
a negative and positive obligation
what is the positive obligation?
obligation on the state to protect the right
- general regulatory measures
- special protective measures
what is the negative obligation?
imposes obligations on states and governments to make sure that these rights are protected and not interfered with
What is the European Convention on Human Rights?
most significant piece of human rights legislation in the entire world
outlines a wide range of rights to which individuals are entitled
What are the three different types of rights under the ECHR?
absolute, limited and qualified
What are absolute rights?
must be upheld in all circumstances, cannot be interfered with or derogated from
what are limited rights?
can be interfered with in very limited circumstances
what are qualified rightd?
one which can be restricted or taken away so long as they satisfy a number of criteria, can be balanced against the public interest or rights of others
What are two ways a matter can be taken to the European Court of Human Rights?
- one country may bring a case against another
- individual petition procedure enables individuals, companies or groups that claim to be victims of fundamental rights violations to bring claims before the court
What did the Human Rights Act 1988 do?
incorporated parts of the ECHR into domestic law
where and when was the ECHR drafter?
drafted by the Council of Europe in Strasbourg in 1949
when did the ECHR come into force?
1953
what was the main point of the ECHR?
to create an independent guarantee to ensure that governments would never again be able to dehumanise and abuse people’s rights with impunity
what are the two institutions of the ECHR?
Council of Europe
European Court of Human Rights
What is the European Court of Human Rights?
a supernational court with jurisdiction to rule on the application of victims of an alleged breach against a state or by a state alleging a violation of rights by another state
can issue an advisory opinion on request from the council of europe or from the highest court and tribunal of the contracting states
what are the stages of a decision in the ECtHR?
- admissibility = ECtHR examines whether the court has the jurisdiction to hear a case and whether the person has the standing to bring it
- merits = ECtHR determines whether there has been a violation of convention rights
- execution = committee of ministers ensures that the member state comply with the decision of the ECtHR
what are the classification of obligations?
- substantive
- procedural
what are substantive obligations?
one that defines the duties on the state to respect and protect the interests of the individual. can be further divided into negative and positive
what are procedural obligations?
an obligation to have in place procedures to determine whether the interests of the individual have been respected and protected
what does the ECHR contain?
terms and concepts that require interpretation before they can be applied to actual cases
what is the margin of appreciation?
states have the primary duty to secure human rights and they are allowed a degree of freedom of choice over the measures they take regarding the issues that are the subject matter of the different articles of the convention
where might states have little or no margin of appreciation?
where convention standard is objective, and its application more straightforward
where an important convention principle needs to be upheld
where might states have a wide margin of appreciation?
matters of controversy and diverging views, particularly in respect of moral issues
- matters of social policy
- matters over which states are assumed to have special, exclusive knowledge
