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Constitutional, Administrative & EU Law > European Convention on Human Rights > Flashcards

European Convention on Human Rights Flashcards

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1
Q

what effect does the ECHR have on the UK?

A

the UK is bound by the ECHR as it is international law. UK law must give effect to the rights in the ECHR.

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1
Q

what is the ECHR?

A

an international treaty

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2
Q

what can happen if a country breaches the ECHR?

A

other member states can bring proceedings before the ECtHR

individuals can bring applications before ECtHR

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3
Q

what effect do judgments of the ECtHR have on the UK?

A

courts have to consider decisions made by the ECtHR but that doesn’t mean they have to follow them.

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4
Q

how is the ECHR incorporated into UK law?

A

HRA 1998

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5
Q

what must an individual do before bringing an ECtHR claim?

A

exhaust all domestic remedies. They will need to prove this.

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6
Q

what is the time limit for an individual to bring an ECtHR claim?

A

the petition must be made within 4 months of the final decision (i.e. usually the decision of the highest court with jurisdiction)

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7
Q

what are the requirements for an individual to bring a ECtHR claim?

A
  1. exhausted all domestic remedies
  2. bring the claim within 4m of the final decision
  3. personally and directly be a victim of the ECHR violation
  4. have suffered significant disadvantage
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8
Q

what are the stages when a case is before ECtHR?

A
  1. admissibility stage
  2. merits stage
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9
Q

explain the admissibility stage

A

A single judge can declare an application inadmissible if it is clearly unfounded

these decisions cannot be appealed.

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10
Q

explain the merits stage

A
  1. Cases following established case law are reviewed by a three-member Committee, which delivers a final decision or judgment.
  2. Other cases are heard by a Chamber of judges, whose judgment becomes final after three months unless referred to the Grand Chamber.
  3. The Grand Chamber may reconsider referred cases and issue a final judgment, often after a public hearing if needed.
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11
Q

what are absolute rights?

A

ECHR rights that can never be interfered with. States must uphold them at all times.

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12
Q

what are limited rights?

A

ECHR rights that can be limited in certain, specific situations

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13
Q

what are qualified rights?

A

ECHR rights that can be interfered with in order to protect a general interest or the rights of others

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14
Q

how can you distinguish between an absolute and limited right?

A

there is some disagreement as to which rights are absolute and limited, but generally:

absolute rights will include exceptions. These exceptions do not count as an interference, they help to define the boundaries of the right.

whereas limited rights will list circumstances that will amount to an interference, but the interference is justified

summary:
exception = no interference
listed interference = interference, but justified

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15
Q

which rights are absolute?

A

art 2 - right to life
art 3 - freedom from torture
art 4 - freedom from slavery
art 6 - right to a fair trial
art 7 - punishment according to existing law
art 9 - freedom of through
art 12 - right to marry

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16
Q

which rights are limited?

A

art 5 - liberty and security of a person
art 6 - fair trial in relation to public trial

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17
Q

which rights are qualified?

A

art 8 - respect for private and family life
art 9 - freedom of through in relation to manifestation of freedom in worship
art 10 - freedom of expression
art 11 - freedom of assembly
art 1 of Protocol 1 - right to peaceful enjoyment of possessions

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18
Q

when is a restriction on a qualified right lawful?

A

For restrictions on qualified rights to be lawful, they must:

The restriction must be expressly outlined in the ECHR

it must be explicitly prescribed by law.

Serve a legitimate aim outlined in the ECHR.

Be necessary and proportionate in addressing a pressing social need.

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19
Q

what is meant by a restriction on a qualified right?

A

a limitation or interference with someones right

the government is allowed to restrict a qualified ECH right if if it lawful, for a legitimate aim and necessary and proportionate

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20
Q

re: qualified rights

explain ‘prescribed by law’

A

The restriction must be grounded in domestic law that is clear and accessible.

Citizens must be able to foresee the legal consequences of their actions.

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21
Q

re: qualified rights

explain ‘legitimate aim’

A

Restrictions must pursue one or more of the legitimate aims listed in the ECHR:

National security, public safety, or economic well-being.

Prevention of disorder or crime.

Protection of health, morals, or the rights of others.

Ensuring judicial authority and impartiality.

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22
Q

re: qualified rights

what is meant by ‘necessary in a democratic society’

A
  1. that there is a pressing social need i.e. the restriction addresses an urgent societal issue and interference is necessary, rather than desirable
  2. it is proportionate i.e. the interference must be proportionate to the legitimate aim pursued, meaning it should not go beyond what is strictly necessary.

there is a margin of appreciation when deciding what is necessary

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23
Q

what is meant by derogation?

A

A derogation allows a state to temporarily suspend certain obligations under the European Convention on Human Rights (ECHR) during extreme circumstances, such as war or a public emergency that threatens the life of the nation.

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24
Q

when can derogations be made?

A

Article 15 of the ECHR permits derogations only:

In times of war or

During a public emergency threatening the life of the nation.

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25
Q

what are the conditions for derogations?

A

Derogations must meet the following criteria:

  1. Proportionality: The derogation measures must be strictly required by the situation.
  2. Notification: The state must notify the Council of Europe about the derogation, specifying the measures and reasons.
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26
Q

what rights cannot be derogated? why is this the case?

A

Certain rights cannot be derogated, even during emergencies:

Article 3: Prohibition of torture and inhuman treatment.

Article 4(1): Prohibition of slavery and servitude.

Article 7: No punishment without law (prohibition of retrospective criminal offenses).

Article 2: Right to life, except for deaths resulting from lawful acts of war

this is because some violations are so severe that they are unacceptable under any circumstances, even during war.

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27
Q

what is the effect or derogation in UK courts?

A

While a derogation is in operation, UK courts cannot enforce the suspended Convention rights.

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28
Q

briefly explain art 2 (right to life) and the exceptions

A

it is an absolute right, it prohibits taking of life and places a positive duty on the state to protect life

exceptions (this means there is no interference with the right):
- the death penalty is prohibited
- lawful killings from lawful acts of war are permitted

it also allows the force resulting in death if:
1) it is absolutely necessary; and
2) it pursues one of these objectives:
- defending someone from unlawful violence
- effecting lawful arrest of preventing escape of a detainee
3. quelling a riot or insurrection lawfully

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29
Q

explain the position between Art 2 and embryos / foetuses

A

Article 2 does not protect embryos or foetuses.

30
Q

explain the position between Art 2 and the right to die

A

Article 2 protects the right to life but does not include a right to die (i.e. assisted suicide)

31
Q

explain the position between Art 2 and the duty to investigate

A

Article 2 includes a procedural obligation requiring the state to investigate deaths potentially caused by breaches of the right to life.

Investigations must be thorough, independent, and effective

32
Q

briefly explain Art 3 (prohibition from torture)

A

Article 3 of the ECHR prohibits torture, inhuman, or degrading treatment or punishment.

It is an absolute right with no exceptions

it cannot be derogated

33
Q

re: Art 3

what is the definition of torture

A

Deliberate, inhuman treatment causing serious and cruel suffering

34
Q

re: Art 3

what is the definition of inhumane treatment

A

Likely to cause bodily or intense mental suffering.

35
Q

re: Art 3

what is the definition of degrading treatment

A

Assaulting an individual’s dignity or physical integrity

36
Q

re: Art 3

what are the state’s obligations?

A

States must protect individuals from Article 3 violations, including from non-state actors

37
Q

re: Art 3

what is the relationship between Art 3 and deportation?

A

Deportation, removal, or extradition to a country where an individual risks torture, inhuman, or degrading treatment breaches Article 3.

38
Q

give an overview of Art 4 (prohibition of slavery)

A

Article 4(1): Prohibits slavery and servitude.

Article 4(2): Prohibits forced or compulsory labour.

Article 4(3): Specifies exceptions that do not constitute forced or compulsory labour:
- Work by convicted prisoners as part of a sentence.
- Compulsory military service.
- Work required during emergencies or calamities.
- Work as part of normal civic obligations

39
Q

what are the exceptions under art 4 (prohibition of slavery)

A
  • Work by convicted prisoners as part of a sentence.
  • Compulsory military service.
  • Work required during emergencies or calamities.
    Work as part of normal civic obligations
40
Q

give an overview of art 5 (right to liberty)

A

Right to liberty and security: No one shall be deprived of liberty except under specific legal conditions.

liberty can be lawfully restricted:
- Conviction of a criminal offence
- Failure to comply with a court order
- Reasonable suspicion of committing a criminal offence
- Detention of minors for educational supervision
- Detention of mentally ill individuals for protection
- Detention in relation to asylum, deportation, or extradition

41
Q

explain deprivation of liberty

A

It involves any situation where a person is restricted in their freedom of movement to a significant degree.

this will be judged on a case by case basis

42
Q

give some examples where the Art 5 right to liberty has not been engaged

A

ASBOs and football banning orders

43
Q

what does Art 5 required in relation to arrest and detention?

A

the interference will be lawful, but due process must be followed, inc:
1. breach / suspicion of breach of a known law
2. reasons for arrest and charge
3. prompt and fair trial
4. availability of judicial review of legality of detention
5. right to compensation for a breach of art 5

44
Q

if an Art 5 exception applies, what must happen?

A

any deprivation must take place in accordance with a prescribed procedure in law and must not be arbitrary, this involves:
1. the detention being carried out in good faith
2. the detention being necessary
3. detention should be no longer than necessary
4. proper records should be kept
5. it must be in accordance with national law

45
Q

what does Art 6 (right to fair trial) apply to?

A

civil and criminal cases

45
Q

how is art 6 (right to fair trial) divided?

A
  1. fair and public hearing
  2. presumption of innocence
  3. rights for criminal defendants
46
Q

re: art 6 (right to fair trial)

give a summary of ‘fair and public hearing’

A

Individuals have the right to a fair and public trial by an independent and impartial tribunal within a reasonable time

The court’s decision must be publicly pronounced, although there may be exceptions for reasons like morality, public order, national security, or the protection of juveniles and privacy.

47
Q

re: art 6 (right to fair trial)

give a summary of the presumption of innocence

A

Everyone charged with a criminal offense is presumed innocent until proven guilty.

This includes protection against self-incrimination and the right to remain silent. Courts may draw adverse inferences from silence, but a conviction based solely on silence would breach the fair trial requirement.

48
Q

re: art 6 (right to fair trial)

what is the relationship between Art 6 and strict liability offences

A

strict liability offences do not breach Art 6 so long as the offence is reasonable

49
Q

re: art 6 (right to fair trial)

give a summary of rights for criminal defendants

A

Defendants have the right to be informed promptly and in detail of the accusations against them, to prepare their defense, and to receive legal representation (free if necessary).

Defendants can call and cross-examine witnesses, though exceptions may apply (e.g., for absent or anonymous witnesses in cases of national security).

They are entitled to a free interpreter if required to understand the proceedings.

50
Q

re: art 6 (right to a fair trial)

what are the main principles under this article?

A

Impartiality: Judges must be unbiased. If a judge has a personal interest, they must recuse themselves.

Public Trials: Criminal trials are generally public, except in specific circumstances like protecting privacy or national security.

Reasonable Time: Criminal trials must occur within a reasonable time, with safeguards like custody time limits.

Access to Court: Defendants should have access to a fair court and the right to participate effectively in their trial.

Admissibility of Evidence: National laws regulate evidence, though evidence obtained through torture or inhuman treatment is excluded.

51
Q

give a summary of Art 7 (retrospective crimes)

A

this protects individuals from being prosecuted for actions that were not considered crimes at the time they were committed

it also prohibits courts from imposing harsher penalties than those that were applicable when the crime was committed

the exception to this is where the act was not criminal at the time, but criminal according to general principles of law in recognised nations. This was to prosecute war crimes.

52
Q

re: qualified rights

what test will the courts apply to determine if interference with a qualified right is ‘necessary in a democratic society’?

A

the proportionality test

53
Q

re: qualified rights

what is the proportionality test?

A

four-part test:

  1. Whether the objective justifies limiting a fundamental right.
  2. Whether the measure is rationally connected to the objective.
  3. Whether a less intrusive alternative could be used.

4.Whether a fair balance has been struck between individual rights and the community’s interests, considering the severity of the consequences.

54
Q

give a summary of Art 8 (right to respect for private life)

A

this guarantees respect for individuals’ private life, family life, home, and correspondence.

This right encompasses various aspects such as bodily integrity, personal autonomy, sexuality, and the protection of personal information

55
Q

give a summary of Art 9 (freedom of thought)

A

this guarantees everyone the right to freedom of thought, conscience, and religion. This includes the freedom to change one’s religion or belief and to manifest religion or belief publicly or privately through worship, teaching, and observance

this is a qualified right so can be restricted if necessary

56
Q

give some examples in relation to Art 9 (freedom of religion)

A
  • a nurse was made to remove her cross whilst working. No violation of Art 9.
  • registrar who refused to register same-sex civil partnerships was dismissed. The court rules the Local Authority’s policy to protect the rights of others (i.e. sam sex couples) was justified. The dismissal was not a breach of Art 9.
  • school girl refused to wear the school uniform and insisted on wearing a hijab and was excluded. This was not a violation of Art 9.
57
Q

give an overview of Art 10 (freedom of expression)

A

guarantees the right to freedom of expression, which includes the freedom to hold opinions and to receive and share information without interference by public authorities

this is a qualified right so can be restricted if necessary

58
Q

re: art 10 (freedom of expression)

what is a key point under this Art?

A

Political speech is especially protected because suppressing political views is a hallmark of oppressive regimes.

59
Q

re: art 10 (freedom of expression)

what is the position regarding Art 10 and national security?

Give and example

A

States can lawfully restrict freedom of expression in matters of national security

i.e. Observer and The Guardian v United Kingdom (1992), the Court upheld an injunction preventing the publication of a book revealing sensitive security service information. The Court agreed that the injunction was in pursuit of the legitimate aim of protecting national security and was proportionate

60
Q

re: art 10 (freedom of expression)

what is the position regarding Art 10 and political advertising?

A

political advertising was banned in the UK

the ECtHR ruled that the ban was a proportionate means of preserving impartiality in broadcasting and protecting democratic processes. While the ban interfered with political expression, it was not deemed a violation of Article 10 because it was a balanced and well-considered policy

61
Q

re: art 10 (freedom of expression)

what is the position regarding art 10 ad hate speech?

A

Free speech that is offensive or disturbing is generally protected by Article 10. However, hate speech that incites racial, religious, or sexual intolerance is not protected.

62
Q

re: art 11 (freedom of assembly & association)

give a summary

A

it protects the right to peaceful assembly, which includes private meetings, public protests, and gatherings on public highways. It covers both stationary meetings and procession

it also protects the right to form associations, such as political parties, pressure groups, or religious organizations, allowing individuals to pursue common goals with others.

63
Q

re: art 11 (freedom of assembly)

what assemblies are protected?

A

The assembly must be peaceful; violent conduct is not protected under this right.

64
Q

re: art 11 (freedom of assembly)

what is the state’s role in relation to assemblies?

A

The state is required to protect peaceful assemblies and ensure they are not disrupted. However, the state can restrict assemblies if they provoke violence or cause significant harm.

65
Q

explain Art 12 (right to marry)

A

guarantees the right for men and women of marriageable age to marry and start a family. This has been extended include transsexual individuals but states are not required to recognise same sex marriages

as this is a qualified right, states can impose restrictions i.e. prohibiting marriage between close relatives

66
Q

explain Art 13 (right to an effective remedy)

A

Article 13 ensures individuals have the right to seek an effective remedy before national authorities when their rights under the ECHR are violated.

67
Q

explain Art 14 (protection from discrimination)

A

all rights in the ECHR must be applied without discrimination on various grounds, including sex, race, religion, etc.

To invoke Article 14, a person must show that the discrimination has interfered with their enjoyment of another right under the Convention. It covers both direct and indirect discrimination

68
Q

explain art 1 of the First Protocol (protection of property)

A

this guarantees the right to peaceful enjoyment of possessions (both land and personal property) but only if the interference affects financial value

public authorities can deprive people of property or restrict use if it is lawful, necessary for public interest and the owner is compensated

69
Q

explain art 1 of the Protocol 13

A

This article mandates the abolition of the death penalty, even during times of war or imminent threat of war.

70
Q

explain art 2 of the First Protocol (right to education)

A

States must ensure the right to education, and parents have the right to ensure their children’s education aligns with their religious or philosophical beliefs.

this does not state specific types of education and the school can impose restrictions (i.e. school admission policies)

For permanent exclusions, the state must ensure alternative education is provided.

71
Q

explain art 3 of the First Protocol (right to free elections)

give an example

A

States must hold free elections at reasonable intervals via secret ballot. This right is absolute, meaning it cannot be restricted, but governments have a wide margin in deciding the electoral system used.

Hirst v UK (No 2), 2005 ruled that the UK’s blanket ban on prisoner voting violated this right

72
Q

what remedies can be given by the ECtHR?

A

compensation or requiring the state to change its domestic law. However, decisions of the court have no binding effect on domestic law and ECtHR relies on states showing willingness to accepts its judgments.

Constitutional, Administrative & EU Law (10 decks)

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