HR 2- Article 2,3,5 and 6 Flashcards
what is article 2
right to life.
is article 2 an absolute right?
no! it is a limited right.
what is the investigative duty that stems from article 2?
duty on the state to investigate all situations in which the state directly takes a life.
also a duty when third parties take a life.
what is the positive obligation that stems from article 2?
to protect or preserve life.
how is article 2 limited>
use of force which is no more than absolutely necessary.
1. in defence of any person from unlawful violence.
2. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained
3. in action lawfully taken for the purpose of quelling a riot or insurrection.
what is article 3?
right not to be subject to torture or inhuman and degrading treatment.
absolute right.
is ‘torture, inhuman and degrading treatment’ a high threshold>
yes. much higher for torture however.
what is the positive obligation nder article 3 and is this absolute?
positive obligation is to protect people from torture and degrading treatment but it is no absolute.
what is article 5?
right to liberty and security of a person.
limited right- e.g circumstances including criminal and immigration lawful arrest and detention.
must have been ‘prescribed by law’ - sufficiently clear legal basis in national law for the deprivation.
how to tell if ones liberty has been deprived?
courts look at the degree and intensity.
what are articles 5(2) and 5(3)
5(2)- governs the right for a person to be informed of the reasons of their arrest in a language they understand.
5(3)- provides that a person who has been arrested and detained shall by ‘brought promptly’ before a judge.
what is article 6?
right to a fair trial.
6(1)- fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
6(2)- contains the presumption of innocence.
6(3)- set of minimum rights owed to everyone charged with a criminal offence, including right of access to legal representation.
can the police detain people for preventative means?
yes! short-term, preventative detention can be justified to stop a specific and imminent threat if it is proportionate and temporary.
what is article 7 ECHR?
You cannot be charged for a criminal offence that was not a crime when you committed it.
NO PUNISHMENT WITHOUT LAW!
WHAT IS Classed as a reasonable time for article 6(1)>
everyone is entitiled to a fair hearing within a reasonable time.
- delays must be justified by substantial reasons.
can the court always draw adverse inferences from being silent?
if the silence is justifiable e.g solicitor’s advice to remain silent due to mental health concerns.
if D remains silent despite having opportunity to explain circumstances and having access to legal advice and not taking it….. this provides reasonable justification for adverse inferences.
procedural fairness and special advocate?
suspect must be given enough information to understand the case against them and instruct the special advocate effectively.
