European Human Rights System Flashcards
What is EUropean HR system made up of?
Council of Europe
ECHR
European Court of Human Rights
What is the CoE??
Committee of ministers from member states
Individual appointed European Commissioner of HRs
Congress of local/regional authorities
What kind of rights are protected in the ECHR 1950
LOTS
- some absolute, some qualified
- no hierarchy
- some are derogable, others arent
What is an absolute right
- Non-derogable under A15
- Notably A3 = no torture
A4 = no slavery
What is a qualified right?
- State can interfere IF:
I) Justifiable
II) Demonstrate interference was LEGAL, LEGITIMATE, NECESSARY and aim was to prrotect a RECOGNISED INTEREST
What is the primacy principle
National law must be made compatible -> ECHR is top
Protections provided must be equivalent to ECHR
State Obligations?
A1 = guarantee ECHR rights and freedoms to all in jurisdiction
Positive state obligations
Provide active protection to an adequate standard
State response must be fast and effective
Negative state obligations
Refrain from unlawfully preventing an individual from exercising their convention rights
4 main interpretaions of ECHR
1) living instrument
2) generous and purposive
3) margin of appreciation
4) proportionality
LIVING INSTRUMENT interpretation
TYRER v UK 1978
- rights in constant development so ECHR must be interpreted in light of present conditions
- standards may change as society does
Case living instrument interpretation
TYRER v UK 1978
potential issue with living instrument interpretation of ECHR
Gives the ECtHR a role of judicial activism = non democratic
GENEROUS AND PURPOSIVE interpretation of ECHR
GOLDER v UK 1980
- ‘how can a right be guarenteed without real and practical access to it’’
- Protection of rights must have a use
- ‘Fair public and expeditious characteristics of judicial proceedings has no value at all if there are no judicial proceedings’
case for ECHR being generous and purposive
GOLDER v UK 1980
= whats the point in rights if they cant be easily accessed and enforced?
MARGIN OF APPRECIATION view of ECHR
HANDYSIDE v UK 1980
- It is not for the ECHR to set absolute standards for every country in the council of Europe’
Case for ECHR having a margin of appreciation?
HANDYSIDE v UK 1980
ECHR interpreted with PROPORTIONALITY?
SOERING v UK 1979
- ECHR is a search for a fair balance between general interests of a community VS requiremenet to protect individual fundamental rights
s46(1) ECHR
What the ECtHR says goes
LOOKING AT YOU HRA 1999
HRA 1999’s attempt to make UK domestic law more important?
s2/3(1)/4(1)
= ‘take into account’
= ‘so far as it is possible’
= ‘deceleration of incompatibility
NO -> ECtHR goes. s46(1)
Under A3, what is meant by TORTURE
deliberate inhuman treatment causing very serious and cruel suffering
stigma attached
Under A3, what is meant by INHUMAN TREATMENT
intense physical or mental suffering
Under A3, what is meant by DEGRADING TREATMENT
treatment that may arouse in V fear, anguish and inferiority capable of humiliation and debasement
possibly breaking physical or moral resistance
which case held how intense suffering must be to violate A3
IRELAND v UK 1979
torture must be actual bodily injury
otherwise it must be ‘severe’
case that highlights ABSOLUTE nature of a3
CHALAL v UK 1996
CHALAL v UK 1996
- Absolute right to freedom frm torture
- positive obligation to prevent = no deporting
How high must the risk of torture be to prevent deportation?
‘sufficiently real and probably’
HIRSI JAMA v ITALY 2012
Case that stated risk of torture must be ‘sufficiently real and probable’ to prevent deportation?
HIRISI JAMA v ITALY 2012
What is the NON-REFOULMENT principle
A33 Refugee Conv 1951 + A3
‘must not return irregular migrants to countries where they would be at risk of HR violations’
What is secondary migration?
Returning migrants to non-EU countries that they had only passed through on journey and had no tie to (TURKEY)
What agreements has the obligation to avoid secondary migration created?
EU-TURKEY AGREEMENT 2016
EU-AFGHANISTAN AGREEMENT 2016
A5 ECHR?
right to liberity -> twofold
twofold nature of A5
Freedom from unlawful arresst/detention
Protection from aribitary intereference with liberity
Which protocol directly relates to A%5 ECHER?
protocol 4
when does protocol 4 state liberty CAN be interfered with
A2(3)
- national security, public safety and maintaince of public order
what is the margin of interpretation of the exceptions to protocol 4
STRICT
objective test of legitimacy + reasonableness
What is a deprivation of liberty?
serious form of restriction of physical liberty
AMMUR v FRANCE 1996
- bbeing held in transit area of airport = violation of A5
GILLAN v UK 2010
Stop and search is not a violation of A5
interesting, ‘arbitrary’ much
