ECHR CASE LAW

Question 1

Golder v UK 1975

Answer 1

• G sentenced to 15 years in Parkhurst Prison for armed robbery
• Prison Rules 1964 denief him right to solicitor during prison term
• Golder argued the rules violated Art. 6 (right to a fair hearing = limited right)
• ECtHR ruled by 6:3 in favor of G, UK Judge (Fitzmaurice) strongly dissented

Question 2

Tyrer v UK 1978

Answer 2

• Tyrer, age 15, sentenced to 3 strokes of birch
• argued this was inhuman or degrading treatment –> Art. 3 (freedom from torture, absolute right)
• ECtHR upheld claim (6:1) (UK judge dissenting)

Question 3

Handyside v UK 1976

Answer 3

• important illustration of the idea of a lawful interference with a qualified right
• arose from confiscation of Little Red Schoolbook and prosecution of publisher (Handyside) on charge of obscenity
• ECtHR found that the prosecution and confiscation interfered with Article 10.1 (freedom of expression)
• but ECtHR gave UK margin of appreciation to determine whether the interference was necessary for the protection of morals (Article 10.2)

Question 4

Pretty v UK 2002

Answer 4

• Pretty asserted a right to assistance with her suicide, from her husband, under Article 8.1 (right to respect for private life and family, including right to dignity in death)
• UK argued blanket ban on assisted suicide was necessary in a democratic society for the life and safety of other individuals (Article 8.2)
• ECtHR applied to Handyside in ruling that the UK was within its margin of appreciation to decide what is necessary etc

Question 5

Hirst no 2 (Voting Rights)

Answer 5

• right to vote for prisoners contested as a breach of article 3 protocol 1 of the ECHR
• domestic law on voting rights 1983 disenfranchised prisoner population with no ‘legitimate aim’ on why the law exists and was ‘arbitrary’ and sought to further alienate prisoners from society which is not the purpose of imprisonment in a democratic society
• court held that the ‘blanket ban lacked proportionality and was arbitrary’ further that while the margin of appreciation was wide, it was not ‘all encompassing’ as not enough was done by the British State and judiciary to consider ‘general’ interest of community
• ECHR’s view of prisoners with reference to the purpose of a criminal justice system i.e. reformist rather than punitive leads to different interpretation.

Question 6

Chahal v UK 1996

Answer 6

• Chahal immigrated to UK from India and became a refugee due to his views on Punjabi Sikh Separationist movement
• UK Govt alleged he had ties with orgs designated as ‘terrorist’ by the indian state and detained him to be deported to India
• Chahal claimed there would be a violation of Art 3 (torture and ill treatment) if he were deported
• courts considered context of India and its treatment of Sikhi separationist movement alongside history of torture, human rights violation by Indian Police and said that while there is a wide margin of appreciaion for national security concerns, the courts were not satisfied about the decision to ‘deport’ as a response for this concern
• Risk of torture, ill-treat and view of national security needs to be balanced by first taking steps domestically rather than ‘explusion’ from the country. Moral weight given to ‘risk to torture/ill-treatment’

Question 7

AP, Garcon and Nicot v France 2017

Answer 7

• The French equivalent of a GRC required
  (a) gender dysphoria diagnosis
  (b) irreversible physical changes for therapeutic purposes (Article 57 Civil Code) - In 2008 AP had an operation outside France involving an orchidectomy, vaginoplasty, clitoroplasty, labiaplasty
• To alter their registered gender AP had to submit to a rigorous multidiscplinary examination and assessment by French professionals.
• AP refused, asserting that the requirement of an assessment violated Article 8 ECHR
• in all 3 cases, france interfered with Art 8

Question 8

Ireland v UK 1978 (Article 3)

Answer 8

• no definition of torture, inhuman and degrading treatment in the convention
• involved detention and techniques applied to IRA detainees in NI
• techniques included adopting stress positions for long periods and sensory depravation eg exposure to loud noises and hooding for long periods
• distinction between torture, inhuman and degrading treatment
• sliding scale from torture to degrading treatment with torture most serious
• a single instance of torture is sufficient to breach Article 3, whereas a pattern of degrading treatment is needed to reach the minimum level of severity

Question 9

Cruz Varas v Sweden 1991 (standard of proof - in expulsion cases only)

Answer 9

• substantial grounds of believing in the existence of a real risk of treatment contrary to art 3
• lower than civil standard of proof

Question 10

Soering v UK 1989 (burden of proof)

Answer 10

• lies with applicant, nor the state
• positive obligation in expulsion cases to not expose the expelled person to a breach of art 3 in the recieving state