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ECHR Flashcards

1
Q

what is the council of europe: (3)

A
  • separate from the EU, comprised of 47 members
  • founded in 1949 after WW2 to create unity
  • produced the HRA, the ECHR and the ECtHR
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2
Q

what are the decision making and deliberative bodies of the council of europe called:

A

decision making - committee of ministers

deliberative - parliamentary assembly

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3
Q

whats a declaration of incompatibility?

A

HRA s.4: courts may declare primary legislation incompatible with convention rights
-they remain in full force until amended

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4
Q

how are declarations of incompatibility remedied?

A
  • remedial order can be used to amend (order made by a minister)
  • however no legal obligation on the Gov to take remedial action
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5
Q

hirst v uk 2005:

A

an exception of s.4 where declaration of incompatibility is yet to be amended by the UK - blanket ban on prisoner voting, contrary to article 3

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6
Q

manchester city council v pinnock:

A

s.2 HRA: domestic courts must ‘take into account’ the ECtHR, but are not bound to its jurisprudence unlike decision of the CJEU - doing such would be impractical and inappropriate

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7
Q

who are convention rights directly enforceable against?

A

public authorities under s.6 - includes courts/tribunals, and both private and voluntary agencies that provide public service

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8
Q

what is the protocol for applications of violations of the ECHR?

A
  • must be first pleaded in a national court, and be appealed up to the highest national court available before being submitted to the ECHR
  • must exhaust all domestic appeal procedures to avoid being declared inadmissable by the ECHR
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9
Q

purpose of the HRA?

A
  • sets out the rights and freedoms everyone in the UK is entitled to
  • incorporates ECHR into domestic law
  • means if human rights breached, can seek remedy in british courts rather the strassbourg
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10
Q

what are the requirements to admissibility by the ECtHR?

and where to find them?

A
  1. have domestic remedies been exhaused?
  2. has the application been brought within 6 months of the final decision?
  3. has the applicant suffered significant disadvantage?
  4. is the alleged violation by a contracting party (state responsible)?
    - listed in article 35 ECHR
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11
Q

what is meant by the ‘victim’ status of an applicant?

A

must be personally directly, or indirectly, affected by the breach of the right

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12
Q

is it likely the ECtHR will accept an application?

A

no; roughly 95% of cases are held inadmissible

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13
Q

ireland v uk (revisited):

A

despite new documents being made available, rejected by grand chamber for lack of new information and no decisive influence

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14
Q

whats the difference between and absolute and qualified right?

A

absolute - legally enforceable, without limitations (art.3)

qualified - state can lawfully interfere under circumstances (art.2)

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15
Q

armani da silva v uk 2016:

A

force must be absolutely necessary to avoid violating article 2; here court held there was honest and genuine belief of threat (accidental shooting of man in underground)

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16
Q

gul v turkey:

A

violation of article 2 for a disproportionate response when police fired at a closed door to unknown target

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17
Q

LCB v UK:

A

positive obligations under art.2 : recognised for the first time that states must not only refrain from unlawful killing, but must take positive steps in safeguard citizens

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18
Q

osman v uk 1998:

A

narrow scope of state duty to protect life
(obsessed teacher accused of various minor incidents ends up student students father and injuring student - no violation since no decisive stage where police should have known the risk to life

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19
Q

pretty v uk:

A

no right to die, whether at the hands of a third person or assistance of authority, can be derived from article 2

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20
Q

ireland v uk 1978:

A

techniques did not amount to torture, but only to inhumane and degrading treatment - no violation (inhuman emphasises humiliation rather than suffering)

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21
Q

postive obligations under art.3: and case:

A

protect persons from ill-treatment, procedural duty to investigate ill-treatment
case: o’keefe v ireland: state responsible for not protecting applicant from sexual abuse in school in 1970s

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22
Q

guzzardi v italy:

A

deprivation of liberty is more than just a restriction on movement (island case)

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23
Q

what positive obligations arise under art. 5?

A
  • of the state to protect its citizens

- applies to protection also from private individuals e.g. in human trafficking

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24
Q

brogan v uk 1998:

A

detention period should be a couple days at most (breach of 5(3) for detaining suspects from 4-6 days)

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25
Q

how is ‘reasonable suspicion’ defined in art.5?

A

must be facts or information which would satisfy an objective observer (o’hara v uk)

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26
Q

how to manage absconding?

A

risks must be reviewed in each case, if bail sufficient then suspect must be released (however bail must not be excessive)

27
Q

what is the most frequently invoked provision before the ECtHR and why is it commonly rejected?

A

article 6 - right to a fair trial
-ECtHR is not to be seen as third appeal, it has no jurisdiction to re-open national proceedings only to observe wholly as complient with art.6

28
Q

what is meant by ‘manifestation of religion’

A

act must be intimately linked with the belief - and must be central to it e.g. worship

29
Q

eweida and others v uk:

A

2 cases of applicants fired for refusual to treat same sex couple equally - no violation of art 9 on grounds of importance of equal treatment

30
Q

dahlab v switzerland:

A

teacher wearing headscarf - school within right to prohibit wearing due to ‘proselytizing effect’

31
Q

s.a.s. v france:

A

french blanket ban on wearing burka in public required for state aim ‘living together’ - not public safety

32
Q

s.a.s. v france:

A

french blanket ban on wearing burka in public required for state aim ‘living together’ - not public safety

33
Q

does article 9 confer positive obligations of the state?

A

not expressly; some cases have touched on it to protect vunerablility and ensure peaceful enjoyment of rights to holders of those beliefs

34
Q

‘there can be no doubt that concrete expressions constituting hate speech which may be insulting to particular people, are not protected by article 10’ case:

A

garaudy v france: historian wrote book denying aspects of holocaust - guilty of incitement - ECtHR held applicant could not rely on art 10

35
Q

where has court held a wider margin of appreciation?

A

wingrove v uk: concerning obscenity/blasphemy (mother t erotic fantasties), no common ground between states on matter (conception of offence likely to change)

  • where the author is a journalist
  • where ads are purely commercial (not in public interest)
36
Q

which article does 10 commonly get in conflict with?

A

8 - public interest cannot be reduced for thirst of information over private life of others

37
Q

what is the 3 part test for establishing interference by public authorities?

A

prescribed by law
connected to legitimate aim
necessary to democratic society

38
Q

examples of violations of ‘home’ under art. 8?

A
  • unjustified destruction of home

- refusual to allow return to home

39
Q

wainwright v uk:

A

lack of regards to privacy (inappropriately strip searched and touched) - violation fo art. 8

40
Q

surveillance of communications case:

A
  • copland v uk: monitoring use of employee phone to see if the were making personal calls (violation)
  • kahn v uk: police used surveillance that was not prescribed by law to convict drug offender (violation)
41
Q

von hannover v germany 2005:

A

pictures of princess where not justified on balance between privacy and public function - violation

42
Q

mosley v uk:

A

cf to von han case: positive obligation shown here - CCTV cameras in existence have ready access

43
Q

was the noise from heathrow airport affected sleep held to be a violation of art. 8?

A

no - grand chamber regarded economic state of the uk - people could chose to live away from airports

44
Q

positive obligations of state on art. 11?

A
  • to police any demonstrations as far as possible to avoid disorder (e.g. notification of demonstrations)
  • legislation to protect union rights of workers; and not to be dissolved
45
Q

ollinger v austria:

A

counter demonstrations: banned protest by local authority (on religous day) for fear of distburance - held violation (ban not necessary)

46
Q

the larger the sanction the …

A

high likelihood a violation will be found (even for violent)

47
Q

redfearn v uk 2012:

A

bus driver elected as councillor for BNP, terminated on political basis would hurt business; court found violation of art 11 - political affiliation didnt impact work (dissenting judges believed however this positive obligation was taken too far)

48
Q

can article 14 be applied alone?

A
  • no - must be in conjuction with another article

- not a free standing right but not necessarily a subsidary role

49
Q

positive obligations under art 14?

A
  • obligation to prevent discrimination
  • to investigate racial motives
  • failure to treat those is the similar situations similarily - without reasonable justification
50
Q

thlimmenos v greece 2000:

A

JW convicted for refusal to serve in armed forces, as result banned from being accountant - violation of art 14 and 9

51
Q

what is the meaning of ‘other status’?

A

clift v uk: being on ‘remand’ is a status not a characteristic; court found violation of 14 and 5 on basis on treatment of people differently

52
Q

4 key questions regarding art. 14?

A
  1. is complaint within scope of another provision? (no requirement of breach)
  2. is complaint one listed in art. 14? - large scope of ‘other status’
  3. can applicant compare themselves with another class of persons treated more favourably? (court looks at this most seriously)
  4. is difference in treatment reasonably justified?
53
Q

what is the burden of proof under art. 14?

A

applicant must show difference of treatment and state must show how this difference is justified - can rely on statistics but has led to fight over what is reliable

54
Q

what are the factors the court considers regarding the scope of the MoA?

A
  • common ground factor; is there is common ground/consensus between states on a matter?
  • better placed factor; is the state in a better place to access necessity, suitability to reasonableness of limitation?
  • nature and importance of issue at stake; does it concern essence of right, or one of the 4 main values?
55
Q

what are the 4 main values that underlie the convention?

A

democracy, pluralism, human dignity and autonomy

56
Q

what does the margin of appreciation concern?

A

the need to balance the courts minimum level of protection to convention rights, with allowing states freedom to use their abilities and powers
-strength is in its flexibility

57
Q

handyside:

A

est. margin; subsidiary role, court ensures conformity of measures
(book containing info on sexual mattters, banned by national court for distibution to children, ECtHR held wide margin of appreciation - public morality aims of state - justified)
-established ‘better place’ argument

58
Q

s and marper case:

A

breadth of margin depends on factors includingnature of right, importance for individual, nature of interference and the object persued by interference

59
Q

smith and grady:

A

special context cases: core of nationali security aim - operational effectiveness; court allows room for restrictions to private life where real threat to op. effectiveness

60
Q

ollinger v austria:

A

local authorites banned protest on balance on art.9 positive obligations against art 11 - not upheld by state and violation of art 9 by not allowing protest

61
Q

ezeh and connors v uk: (art.6):

A

violation of prisoner sentence extension without trial

62
Q

there must be an impartial judgement / jury to give a fair sentence: (Art.6) cases:

A

judgement - t & v V uk (home secretary)

jury - hanif v khan (police officer in jury)

63
Q

article 15 case, allowing states to retroactively derogate from articles:

A

brannigan & mcbride v uk (allowed person to be detained before they did anything - risk)

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