HRA 98 ? ECHR Flashcards
What does mean by a negative obligation
The state must not act in ways that is contrary to the ECHR provisions
what is an example of a negative obligation
Art 1 ECHR pries that the ‘…contracting party shall secure to everyone… the rights and freedom defined in section 1 of this convention’.
Hence - ECHR, requires the state to go beyond negative compliance and to do so by providing a system of laws, law enforcement and public administration which enable the individual to enjoy convention rights free.
what happened in the case of Plattform v Austria
Applicant organisation, held demonstrations against legalised abortion, complained that authorities had not taken sufficient measures to prevent counter-demonstrators from disrupting their demonstrations
the applicant complained that Austria had violated the ECHR art 11 and 13
what did the ECtHR hold in the case of Plattform v Austria
Austria had not failed to take necessary measures. Had not been shown that art 11 was violated and thus art 13 did not apply… Article 11 sometimes requires positive measures to be taken even in the sphre of relations between individuals… while it is the duty, they cannot guarantee this absolutely
What are the absolute rights
Article 3 (prohibition to torture), Article 4 (prohibition of slavery and forced labour), Article 7 (no punishment without law) and Article 9 (Freedom of thought, conscience and religion (elements of it))
What do absolute rights mean
rights may not be restricted or interfered with by the state whatever the circumstances or however pressing the state may perceive the public or social interest to be
what are the limited rights
Article 2 (right to life), Article 5 (Right to liberty and security) and article 6 (Right to a fair trial)
what do limited rights mean
Such rights may be subject to restrictions but only in accordance with the specific and strictly limited circumstances as prescribed by the articles
What are the qualified rights
Article 8 (right to respect for private and family life), Article 9 (Freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 11 (Freedom of assembly and association)
what do qualified rights mean
Any restriction must be based on clear legal authority (‘according to’ or ‘prescribed by law’) and must be proportionate (‘reasonably necessary in a democratic society’) to the achievement of any of the convention’s legitimate aims, e.g. the prevention of crime or the protection of public order or health
what happened in the case of piermont v france
Piermont visited French Polynesia and participated in a pro-independence and anti-nuclear demonstration. As P was about to leave on an aircraft, she was served with an order for her expulsion and exclusion
P complained that these actions violated the ECHR art 14 (discrimination) and 10 (freedom of expression)
what did the ECtHR hold in the case of piermont v france
… the interference was prescribed by law and pursued the aim of preventing disorder, a legitimate aim under paragraph 2 article 10…
limitation or an exception to rights guaranteed by the convention is to be narrowly interpreted and should be subject to the principles of the Rule of Law and of proportionality that is inherent.
At no point did P call for violence/disorder… she contributed to democratic debate. The demonstration was not followed by the disorder. Accordingly, a fair balance was not struck between, on the one hand, the public interest requiring the prevention of disorder and the upholding of territorial integrity and,
on the other , the applicant’s freedom of expression. since the measure was not necessary in a democratic society there has been a breach of article 10
what are the effect of derogations
to restrict or suspend, but not extinguish the applicability of the relevant convention rights
what was said in the case of lawless v Ireland
it follows from provisions that without being released from all its undertakings assumed in the convention, to the government of any high contracting party has the right, in case war/public emergency etc
What section in the HRA proves declaration of incompatibility
section 4 of the HRA 98
in a summary, what does s4 HRA 98 say
2) if the court is satisfied that the provision is incompatible with a convention right, it may make a declaration of that incompatibility
3) … proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a convention right
4) if the court is satisfied (a) that the provision is incompatible with a convention right, and
b) that the primary legislation concerned prevents removal of the incompatibility
it may make a declaration of that incompatibility
What is section 3 of the HRA
the interpretation of legislation
In summary, what does section 3 of the HRA say
1) so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights
What does the effect of section 4 depend on
depends of the level of the court and type of legislation (primary or subordinate)
what happens if the provision is contained in subordinate legislation
the court at whatever level ‘should’ treat the provision as ineffective (UNLESS the parent act prescribe a particular format which then prevent the removal of the incompatibility)
true or false, despite their incompatibility all courts do not need to oblige to enforce primary legislation
false, despite theirincompatibility, all courts remain obliged to enforce primary legislation
what can higher courts make however
Higher courts such as the supreme court and the privy council can make a declaration of incompatibility under s4 HRA 98
what effect does the ‘declaration of incompatibility’ have
Has no effect on the case before the court, it does not affect the legislation is declared incompatible (i.e. it does not affect the validity of the provision at issue)
what is the purpose of section 4 or the declaration of incompatibility
the main effect is to ‘fast track’ remedial action for the incompatible provision
