European convention on human rights Flashcards
true or false, a right cannot be claimed
false, a right can be claimed
when does freedom exist
until the state removes it
what are rights
they are more of a fundamental nature than liberties, they impose duty on others
example of a right
right to life, it is a fundamental human right which ‘imposes’ a duty on other not to take that life away
what is the european convention of human rights
they were drafted as a response to Nazi atrocities carried out during the second worlds war
what is the aim of ECHR
to protect ‘fundamental rights and freedoms’
how does the ECHR aim to protect rights and freedoms
by giving citizens who believed that these rights have been infringed the right to complain to the ECtHR in Strasbourg, France
When was the ECHR signed
4th November 1950, in Rome
how was the application of bringing a case before the amendment?
Where a member state was not obliged to accept the compulsory jurisdiction of the court and where only a member state or the commission had the right to bring a case before the court - these are now bot repealed and amended
how is the application today of bringing a case
the jurisdiction of the court is now accepted as compulsory over all member states, and individuals have the right to apply to the court directly
What is a summary of article 46
where states are under an obligation to comply with the judgment of the Court of Human Rights
who ensures that the judgment is complied with
The committee of ministers
what happens when there is non-compliance
it can result in the state’s suspension of membership from the Council of Europe (ultimately expelled)
what would essentially happen if there is failure to comply with a judgment
will cause adverse publicity for the state and there is thus great political pressure to conform
what is a summary of article 34
Court may receive applications from any person… claiming to be the victim of a violation…
what is the summary of article 35
the procedure of application - court may only deal with matter after… remedies have been exhausted… within a period of six months… application not admissible if anonymous… or already been considered… inadmissible if the applicant has not suffered a significant disadvantage… ECtHR has the final say… at any stage…
what is the margin of ‘appreciation’
almost all articles of the convention has an area of discretion… must be admitted that the application of the convention will not be uniform throughout the legal systems and that state may be able to deviate from the protection given.
is it possible for the state to derogate from the ECHR
Yes, if it finds it impossible or undesirable to comply with specific articles
what article supports the idea that derogation could occur
Article 15 - derogation in time of emergency
in time of war… emergency threatening the life of the nation… to the extent strictly required
What articles DON’T allow derogations
Article 2 - right to life (unlessduring lawful acts or war), article 3 - prohibition of torture, Article 4 - slavery or servitude and Article 7 - punishment without law
what does the case of R(on the application of Al-skeini) v secretary of state for defence say
Convention on Human RIghts applied in Southern Iraq at the time when Britain was the occupying power in that region.
The ECtHR’s interpretation of territorial reach is broader than either the House of Lords, or its successor, the Supreme Court - contracting states are now required to comply with the convention ‘whenever a state through its agent’s exercises control and authority over an individual’
