European Human Rights System

Question 1

What is EUropean HR system made up of?

Answer 1

Council of Europe
ECHR
European Court of Human Rights

Question 2

What is the CoE??

Answer 2

Committee of ministers from member states
Individual appointed European Commissioner of HRs
Congress of local/regional authorities

Question 3

What kind of rights are protected in the ECHR 1950

Answer 3

LOTS

• some absolute, some qualified
• no hierarchy
• some are derogable, others arent

Question 4

What is an absolute right

Answer 4

• Non-derogable under A15
• Notably A3 = no torture
  A4 = no slavery

Question 5

What is a qualified right?

Answer 5

• State can interfere IF:
  I) Justifiable
  II) Demonstrate interference was LEGAL, LEGITIMATE, NECESSARY and aim was to prrotect a RECOGNISED INTEREST

Question 6

What is the primacy principle

Answer 6

National law must be made compatible -> ECHR is top

Protections provided must be equivalent to ECHR

Question 7

State Obligations?

Answer 7

A1 = guarantee ECHR rights and freedoms to all in jurisdiction

Question 8

Positive state obligations

Answer 8

Provide active protection to an adequate standard

State response must be fast and effective

Question 9

Negative state obligations

Answer 9

Refrain from unlawfully preventing an individual from exercising their convention rights

Question 10

4 main interpretaions of ECHR

Answer 10

1) living instrument
2) generous and purposive
3) margin of appreciation
4) proportionality

Question 11

LIVING INSTRUMENT interpretation

Answer 11

TYRER v UK 1978

• rights in constant development so ECHR must be interpreted in light of present conditions
• standards may change as society does

Question 12

Case living instrument interpretation

Answer 12

TYRER v UK 1978

Question 13

potential issue with living instrument interpretation of ECHR

Answer 13

Gives the ECtHR a role of judicial activism = non democratic

Question 14

GENEROUS AND PURPOSIVE interpretation of ECHR

Answer 14

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’

Question 15

case for ECHR being generous and purposive

Answer 15

GOLDER v UK 1980

= whats the point in rights if they cant be easily accessed and enforced?

Question 16

MARGIN OF APPRECIATION view of ECHR

Answer 16

HANDYSIDE v UK 1980

- It is not for the ECHR to set absolute standards for every country in the council of Europe’

Question 17

Case for ECHR having a margin of appreciation?

Answer 17

HANDYSIDE v UK 1980

Question 18

ECHR interpreted with PROPORTIONALITY?

Answer 18

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

Question 19

s46(1) ECHR

Answer 19

What the ECtHR says goes

LOOKING AT YOU HRA 1999

Question 20

HRA 1999’s attempt to make UK domestic law more important?

Answer 20

s2/3(1)/4(1)
= ‘take into account’
= ‘so far as it is possible’
= ‘deceleration of incompatibility

NO -> ECtHR goes. s46(1)

Question 21

Under A3, what is meant by TORTURE

Answer 21

deliberate inhuman treatment causing very serious and cruel suffering
stigma attached

Question 22

Under A3, what is meant by INHUMAN TREATMENT

Answer 22

intense physical or mental suffering

Question 23

Under A3, what is meant by DEGRADING TREATMENT

Answer 23

treatment that may arouse in V fear, anguish and inferiority capable of humiliation and debasement
possibly breaking physical or moral resistance

Question 24

which case held how intense suffering must be to violate A3

Answer 24

IRELAND v UK 1979
torture must be actual bodily injury
otherwise it must be ‘severe’

Question 25

case that highlights ABSOLUTE nature of a3

Answer 25

CHALAL v UK 1996

Question 26

CHALAL v UK 1996

Answer 26

• Absolute right to freedom frm torture

- positive obligation to prevent = no deporting

Question 27

How high must the risk of torture be to prevent deportation?

Answer 27

‘sufficiently real and probably’

HIRSI JAMA v ITALY 2012

Question 28

Case that stated risk of torture must be ‘sufficiently real and probable’ to prevent deportation?

Answer 28

HIRISI JAMA v ITALY 2012

Question 29

What is the NON-REFOULMENT principle

Answer 29

A33 Refugee Conv 1951 + A3

‘must not return irregular migrants to countries where they would be at risk of HR violations’

Question 30

What is secondary migration?

Answer 30

Returning migrants to non-EU countries that they had only passed through on journey and had no tie to (TURKEY)

Question 31

What agreements has the obligation to avoid secondary migration created?

Answer 31

EU-TURKEY AGREEMENT 2016

EU-AFGHANISTAN AGREEMENT 2016

Question 32

A5 ECHR?

Answer 32

right to liberity -> twofold

Question 33

twofold nature of A5

Answer 33

Freedom from unlawful arresst/detention

Protection from aribitary intereference with liberity

Question 34

Which protocol directly relates to A%5 ECHER?

Answer 34

protocol 4

Question 35

when does protocol 4 state liberty CAN be interfered with

Answer 35

A2(3)

- national security, public safety and maintaince of public order

Question 36

what is the margin of interpretation of the exceptions to protocol 4

Answer 36

STRICT

objective test of legitimacy + reasonableness

Question 37

What is a deprivation of liberty?

Answer 37

serious form of restriction of physical liberty

Question 38

AMMUR v FRANCE 1996

Answer 38

• bbeing held in transit area of airport = violation of A5

Question 39

GILLAN v UK 2010

Answer 39

Stop and search is not a violation of A5

interesting, ‘arbitrary’ much