European Convention on Human Rights Flashcards
ECHR
UK ratified the Treaty in 1951.
UK is bound as a matter of
international law to comply.
If the UK breaches the ECHR, it is possible for other states who are parties to bring proceedings before the European Court of Human Rights (ECtHR) in
Strasbourg, in addition to individual applications to enforce rights under the ECHR.
Judgments of the ECtHR are binding on the UK.
HRA 1998 - rights under the ECHR were incorporated
into UK law.
ECHR - Procedure
(a) State applications.
Proceedings may be brought
against it by another signatory state.
(b) Individual petitions to the ECtHR.
Individuals who allege that their Convention rights have
been breached as a result of domestic law may start their own proceedings against
the state before the ECtHR in Strasbourg.
However, it must be shown that any domestic remedies that exist have first been exhausted.
Time limit - within 4 months of the final decision (in the UK this will usually be the decision of the highest UK court having jurisdiction).
No right to appeal.
2 stages:
- the admissibility stage
- the merits stage
A single- judge formation will declare an application inadmissible should inadmissibility be
obvious from the outset.
Absolute, limited and qualified rights - definitions
(i) Absolute rights: These rights can never be interfered with in any circumstances
whatsoever. States must uphold them at all times.
(ii) Limited rights: These rights can only be limited in clearly defined and finite situations.
(iii) Qualified rights: These rights require a balance between the rights of the individual and
the wider public interest.
Absolute, limited and qualified rights - breakdown of rights
- Art 2 right to life - absolute
- Art 3 freedom from torture, inhuman and degrading treatment - absolute
- Art 4 freedom from slavery - absolute
- Art 5 liberty and security of the person - Limited (lawful detention and arrest)
- Art 6 right to fair trial - absolute as to fair trial. Limited in relation to the trial being in public.
- Art 7 punishment according to existing law - absolute
- Art 8 respect for private and family life - qualified
- Art 9 freedom of thought - absolute in relation to freedom of thought. Qualified in relation to manifestation of freedom, in worship, teaching, practice or observation.
- Art 10 freedom of expression - qualified
- Art 11 freedom of assembly and association - qualified
- Art 12 right to marry - absolute
- Art 1 of Protocol 1 right to peaceful enjoyment of possessions - qualified
Qualified rights
- Qualifications must be express
Only restrictions on qualified rights that are expressed in the ECHR are recognised. - Qualifications must be prescribed by law (or be ‘in accordance with the law’)
Be in UK law.
E.g. not possible for the UK to justify infringement of the right to respect for private life (eg by telephone tapping) on the basis that it was needed for the prevention of crime (Article 8), unless UK law clearly permitted the infringement. - Legitimate aims
Qualifications must be justified by reference to the aims specified for each right. - Qualifications are usually required to be ‘necessary in a democratic society’
(a) Must be a ‘pressing social need’ (rather than an absolute necessity for any restriction imposed).
(b) The interference with the ECHR right must be proportionate.
Derogations
Under Article 15 of the ECHR, a state may derogate from part of the ECHR ‘in time of war or other public emergency threatening the life of the nation’.
State is not bound to apply the specified provisions.
No derogation is possible in respect of Articles 3 (torture, etc), 4(1) (slavery), or 7 (retrospective criminal offences), or from Article
2 (right to life) except in respect of deaths resulting from lawful acts of war.
Article 2 – Right to life
Absolute.
(a) prohibits the state from taking life; and
(b) places on the state a positive duty to protect life
Article 2(2) permits the use of force that results in the deprivation of life, but only if:
1. the use of force is no more than absolutely
necessary.
2. the use of force must be in pursuit of one or more of three objectives.
* the force is used in defence of any person from unlawful violence.
* the force is used to effect a lawful arrest or to prevent the escape of a person lawfully
detained
* the force is used in action lawfully taken for the purpose of lawfully quelling a riot or
insurrection.
Held not to protect embryos by preventing their destruction when one party
withdraws his or her consent to implantation.
No right to die (assisted suicide).
Duty to investigate breaches.
Article 3 – Torture, inhuman or degrading treatment or
punishment
Torture = ‘deliberate inhuman treatment causing very serious and cruel suffering’
Inhuman treatment = treatment or punishment likely to cause actual bodily injury or intense physical and mental suffering’
Held that the state has an obligation to ensure that non- state actors such as parents or guardians do not punish children to a level at which Article 3 will be engaged.
Held that it would be a violation of Articles 2 and/ or 3 if an individual were to be deported to, removed to or extradited to a country where there was a real risk that they might be killed, tortured or treated in any other way that would violate these articles.
Article 4 – Slavery
Slavery = the status or condition of a person over whom any or all
of the powers attaching to the right of ownership are exercised.
Servitude is not slavery. E.g. living on the property of another and inability to change that.
Forced or compulsory labour = work or service that an individual was forced to do
against their will.
Individual has to be exploited.
Comes under right.
Article 5 – Right to liberty and security
Has a wider meaning than simply detaining someone in a cell.
- Detention has to be carried out in good faith. Meaning closely connect to one of 6 ways right may lawfully be interfered with:
(a) when an individual is sent to prison after being convicted of a criminal offence;
(b) when an individual is arrested or detained in order to ensure that the individual complies
with a court order;
(c) when an individual is arrested on suspicion of having committed a criminal offence, to prevent them from committing an offence or to prevent them from fleeing after having committed an offence;
(d) when a minor is detained for the purposes of educational supervision;
(e) when someone who is mentally ill is detained for their own protection or the protection of
others; and
(f) the detention of individuals in connection with asylum, deportation or extradition. - Detention must be necessary.
- Length should not exceed that reasonably required for the purpose pursued.
- Proper records of the reason for detention must be kept.
- Detention must be lawful within the terms of the national law of the state
concerned.
Article 6(1) – Right to a fair trial - general and civil
= everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly.
Applies to civil and criminal cases.
Civil: only be invoked where a case concerns an individual attempting to assert a substantive legal right that is recognised in national law.
Includes employment law cases and the decisions of disciplinary bodies that have the effect of preventing an individual pursuing their chosen profession.
Article 6 (1) – Right to a fair trial - criminal
Applies if national law classifies matter as criminal.
Other cases found to be criminal depends on if proceedings similar to a criminal trial e.g. prison discipline.
- an individual should have access to the court
- that court should be independent and impartial
- the trial should be in public and the decision of the court pronounced publicly.
Can exclude press and public from all or part of a
trial in a limited number of situations e.g. juveniles or protect private life, prejudice interests of justice, interest of morality, public order or national security. - the trial should take place within a reasonable time
- the trial itself should be conducted in a fair way.
Article 6(2) – The presumption of innocence
Presumed to be innocent until such time as they are convicted.
Does not provide explicitly for right to silence but implied.
No rule to prevent adverse inferences being drawn.
Would be a breach were a defendant to be convicted on the basis of their silence alone.
Art 6(3) - Additional rights of the defendant in criminal proceedings
- The right to be informed
- The right to have adequate time and facilities to prepare the defence
- The right to defend themselves or have legal representation
- The right to call and cross- examine witnesses
- The right to have the free assistance of an interpreter if required
Art 7 - Retrospective crimes
Cannot be charged with a criminal offence for conduct that was not a crime when they committed it.
Exceptions: can still be prosecuted retrospectively for conduct that was ‘criminal according to the general principles of law
recognised by civilised nations’ e.g. Nazis.
