HRs - arts 2, 3, 5, 6

Question 1

What is the purpose of Article 2 of the European Convention on Human Rights (ECHR)?

Answer 1

Article 2 of the ECHR protects the right to life. It prohibits the intentional deprivation of life, except in cases where it is carried out as a lawful execution or in defense of oneself or others. It also sets limits on the use of force by the state.

Question 2

What is the importance of the state’s obligation under article 2?

Answer 2

The state has an obligation under article 2 to investigate deaths involving agents of the state. This investigation must be public, independent, and involve the full participation of the family.

Question 3

What are the conditions that must be met for a deprivation of liberty to fall within the limitations of Article 5?

Answer 3

In addition to the deprivation of liberty having to fall within one of the limitations in 5(1)(a) to (f), it must also be prescribed by law, which means that there must be a sufficiently clear legal basis for the deprivation.

Question 4

What are the requirements for a lawful deprivation of liberty under Article 5(1)(c) of the ECHR?

Answer 4

Article 5(1)(c) of the ECHR states that a person may be deprived of their liberty if they are lawfully arrested and detained: ‘for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.’

Question 5

What are some other rights contained in the ECHR that can have a profound impact on individuals?

Answer 5

In addition to the right to life, the ECHR includes the right not to be subject to torture or inhuman and degrading treatment (Article 3) and the right not to be arbitrarily detained (Article 5). Violations of these rights can have significant consequences for individuals.

Question 6

What is the significance of the first limb of Article 5(1)(c) in relation to reasonable suspicion?

Answer 6

The first limb of Article 5(1)(c) requires there to be reasonable suspicion for a lawful arrest and detention. This means that there must be evidence of ‘facts or information which would satisfy an objective observer that the person concerned may have committed the offence.’ Previous convictions alone are not enough to establish reasonable suspicion.

Question 7

What is the positive obligation under article 2?

Answer 7

Article 2 can impose a positive obligation on the state to protect or preserve life. This includes having criminal justice systems that punish and deter homicide, as well as taking preventative measures to protect individuals when their life is at risk from other individuals or from suicide.

Question 8

What is the difference between a deprivation of liberty and a mere restriction on liberty?

Answer 8

According to the European Court of Human Rights, the distinction between a deprivation of liberty and a mere restriction of liberty is one of degree or intensity, not one of nature or substance. Classic forms of deprivation of liberty include detention in prison and strict arrest, but it can take other forms as well.

Question 9

What is the test for state liability under the positive obligation of article 2?

Answer 9

State authorities can be held liable under the positive obligation of article 2 if they knew, or ought to have known, that there was a real and immediate risk to life but failed to take appropriate measures. This test was established in the case of Osman v UK (2000) 29 EHRR 245.

Question 10

What is the test for reasonableness in relation to the second limb of Article 5(1)(c)?

Answer 10

The test for reasonableness in relation to the second limb of Article 5(1)(c) is the same as that established in the case of Fox, Campbell & Hartley v UK. It permits arrest and detention when it is reasonably considered necessary to prevent the person from committing an offence or fleeing after having done so.

Question 11

What are the limits to Article 2 of the ECHR?

Answer 11

Article 2 is one of the most fundamental rights in the ECHR, and the contracting states are not permitted to derogate from it. However, it is not an absolute right and includes limits on the right to life, allowing the state to take life for exceptional law enforcement purposes. The state must demonstrate that its use of force was no more than absolutely necessary.

Question 12

What was the disagreement between the ECtHR and the UK Supreme Court regarding the scope of the second limb of Article 5(1)(c)?

Answer 12

In the case of Ostendorf v Germany, the majority of the ECtHR held that the second limb of Article 5(1)(c) only permits detention for the purpose of bringing the person before a competent legal authority. However, in R (Hicks) v Commissioner of Police for the Metropolis, the UK Supreme Court disagreed and followed the reasoning of the minority in Ostendorf. The Supreme Court held that the second limb allows proportionate preventive detention followed by early release.

Question 13

What is the duty of the state under Article 2 of the ECHR?

Answer 13

Under Article 2 of the ECHR, the state has a duty to protect the right to life. This includes refraining from killing (negative obligation) and conducting effective official investigations when individuals have been killed as a result of the use of force by state agents (investigative duty).

Question 14

What is ‘kettling’ and how does it relate to Article 5(1)?

Answer 14

‘Kettling’ refers to the practice used by the police to control large crowds, particularly during demonstrations. The European Court of Human Rights addressed the compatibility of kettling with Article 5(1) in the case of Austin v UK. The court concluded that the imposition of an absolute cordon had been the least intrusive and most effective crowd control measure to avoid a real risk of serious injury or damage to property, and therefore did not amount to a deprivation of liberty under Article 5(1).

Question 15

What is the balance that courts have to apply in cases involving the right to life and assisted suicide?

Answer 15

In cases involving the right to life and assisted suicide, courts have to balance the wishes of the person not to die in inhuman and degrading circumstances (article 3) with the state’s obligation to do what is reasonable to preserve life. This balance was considered in the case of R (on application of Pretty) v DPP, [2001] UKHL 61, and subsequent Strasbourg case, Pretty v UK (2002) 35 EHRR 1.

Question 16

What was the resolution of the disagreement between the ECtHR and the UK Supreme Court regarding the second limb of Article 5(1)(c)?

Answer 16

The Grand Chamber of the ECtHR, in the case of S, V & A v Denmark, resolved the disagreement in favor of the perspective taken by the UK Supreme Court in Hicks. The Grand Chamber held that the second limb should be capable of permitting short-term detention of a person outside of criminal proceedings for the purpose of preventing a concrete and specific offence.

Question 17

What are the conditions that must be satisfied for a deprivation of liberty to not constitute a breach of Article 5(1)?

Answer 17

A deprivation of liberty will not constitute a breach of Article 5(1) if two conditions are satisfied. The first condition is that the deprivation must have been prescribed by law. The second condition is that the deprivation must be necessary and proportionate.

Question 18

What are the additional due process rights provided by Article 5(2) and (3) of the ECHR?

Answer 18

Article 5(2) of the ECHR governs the right for a person to be informed promptly, in a language they understand, of the reasons for their arrest. Article 5(3) provides that a person who has been arrested and detained shall be brought promptly before a judge. These provisions aim to safeguard against ill-treatment, abuse of power, and unjustified interference with individual liberty.

Question 19

What does the ECtHR consider when assessing whether the state’s use of force was proportionate under Article 2 of the ECHR?

Answer 19

Under Article 2 of the ECHR, if the state takes a life, it must demonstrate that its use of force was no more than absolutely necessary. This means showing that the degree of force used was proportionate to achieve the legitimate aim of protecting another person. The ECtHR examines the circumstances and evidence to assess proportionality.

Question 20

What does it mean for a deprivation of liberty to be ‘prescribed by law’?

Answer 20

For a deprivation of liberty to be ‘prescribed by law’, it must have some basis in national law. This basis can be in a legislative provision or in case law. The law must indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise.

Question 21

What qualities must the identified legal basis for a deprivation of liberty have?

Answer 21

The identified legal basis for a deprivation of liberty must be adequately accessible, meaning that the citizen must be able to have an indication of the legal rules applicable to a given case. Additionally, the law must be formulated with sufficient precision to enable the citizen to regulate their conduct and foresee the consequences of their actions to a reasonable degree.

Question 22

What does article 3 of the ECHR prohibit?

Answer 22

Article 3 of the ECHR prohibits torture or inhuman and degrading treatment or punishment. It is an absolute right that permits no derogation and imposes both negative and positive duties on public authorities.

Question 23

What is the duty of command, control, and training in relation to Article 2 of the ECHR?

Answer 23

The duty of command, control, and training is a managerial obligation under Article 2 of the ECHR. It requires the state to be in a position to judge when to apply the use of deadly force and to have mechanisms in place to avoid such force when it is not strictly required. This duty ensures that the state exercises reasonable care in the control and organization of security operations.

Question 24

What is the maximum period of detention without judicial authorization under Article 5(3) of the ECHR?

Answer 24

The Grand Chamber in McKay v UK treated the case of Brogan v UK as establishing a maximum period of four days for detention without judicial authorization under Article 5(3). However, the ECtHR has emphasized in subsequent cases that shorter periods of detention without judicial authorization can still be incompatible with Article 5(3).

Question 25

What is the significance of the Sunday Times test in determining whether a deprivation of liberty is ‘prescribed by law’?

Answer 25

The Sunday Times test establishes that the interference with a Convention right must have some basis in national law. The law must be adequately accessible and formulated with sufficient precision to enable individuals to regulate their conduct. The test applies to various relevant articles, including Article 5

Question 26

What is the investigative duty under Article 2 of the ECHR?

Answer 26

Article 2 of the ECHR imposes a duty on the state to investigate all situations in which the state directly takes a life. This duty is based on the state’s responsibility to protect life and ensure accountability for human rights breaches. Proper investigations help avoid the need to invoke Article 2 and provide remedies for violations.

Question 27

How is ‘inhuman and degrading treatment’ defined under article 3?

Answer 27

The standard for what constitutes ‘inhuman and degrading treatment’ under article 3 is set at a high level. It requires serious ill-treatment or neglect that attains a minimum level of severity, taking into account the nature and context of the treatment, its execution, duration, and physical and mental effects.

Question 28

What was the ruling in the case of Ipek v Turkey regarding the promptness of detention under Article 5(3)?

Answer 28

In the case of Ipek v Turkey, the ECtHR held that the detention of three 16-year-old boys for a period of three days and nine hours before being brought before a court was not sufficiently prompt. The ECtHR emphasized that the boys were minors at the time of arrest and that the delay in bringing them before a court did not meet the requirement of promptness.

Question 29

How does the ECtHR determine if a legal basis for a deprivation of liberty meets the requirements of the Sunday Times test?

Answer 29

The ECtHR looks for a specific legal rule or regime that authorizes the conduct of the state. The legal basis must afford a measure of legal protection against arbitrary interferences with rights and must indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise.

Question 30

What is the distinction between ‘torture’ and ‘inhuman or degrading treatment’ under article 3?

Answer 30

Torture is an aggravated, deliberate, and cruel form of treatment or punishment, while inhuman or degrading treatment encompasses serious ill-treatment or neglect that falls below the threshold of torture. The distinction was established in the case of Ireland v UK (1979-80) 2 EHRR 25.

Question 31

What are the due process rights provided by Article 5(4) of the ECHR?

Answer 31

Article 5(4) of the ECHR states that a person who has been deprived of their liberty by the state shall be entitled to take proceedings by which the lawfulness of their detention shall be decided speedily by a court, and their release ordered if the detention is not lawful.

Question 32

What is the enforceable right provided by Article 5(5) of the ECHR?

Answer 32

Article 5(5) of the ECHR provides an enforceable right to compensation for a victim of a breach of Article 5.

Question 33

What is the duty to investigate under Article 2 of the ECHR in situations where a death has been caused by a third party?

Answer 33

Under Article 2 of the ECHR, there is also a duty to investigate when a death has been caused by a third party. The rationale for this duty lies in the fact that it is primarily the responsibility of states themselves to investigate and remedy human rights breaches. Proper investigations help ensure accountability and prevent the need to invoke Article 2.

Question 34

What are the requirements for the use of lethal force under article 2?

Answer 34

Under article 2, the use of lethal force must be no more than absolutely necessary. This requirement ensures that the state does not violate the right to life when using force.

Question 35

What are the obligations under article 3 of the ECHR?

Answer 35

Article 3 of the ECHR imposes both negative and positive duties on public authorities. The negative duty prohibits torture or inhuman and degrading treatment, while the positive duty requires public authorities to take measures to prevent such treatment.

Question 36

What does Article 6(3) of the criminal offence charge lay down?

Answer 36

Article 6(3) lays down a set of minimum rights owed to everyone charged with a criminal offence, including access to legal representation under article 6(3)(c), and fair legal process more generally.

Question 37

How did the court-martial system breach Article 6(1) in the Findlay case?

Answer 37

In the Findlay case, the European Court of Human Rights (ECtHR) held that the British Army’s court-martial system breached Article 6(1) because of the dominant and pervasive role of the convening officer in the overall process. The convening officer had control over the selection of charges, organization of the hearing, appointment of court members, and the roles of prosecuting and defending officers.

Question 38

What is the purpose of short-term detention outside criminal proceedings?

Answer 38

Article 5(1)(c) permits the short-term detention of a person outside criminal proceedings for the purpose of preventing a concrete and specific offense.

Question 39

According to S, V & A v Denmark, what is the promptness requirement in article 5(3) for preventative detention?

Answer 39

In S, V & A v Denmark, the Grand Chamber of the ECtHR emphasized that, where a person is subject to preventative detention, the promptness requirement in article 5(3) should be a matter of hours rather than days.

Question 40

What does article 5(4) state regarding the lawfulness of ongoing detention?

Answer 40

Article 5(4) states that a person who has been deprived of their liberty by being arrested or detained shall be entitled to take proceedings by which the lawfulness of their detention shall be decided speedily by a court and their release ordered if the detention is not lawful.

Question 41

How does Article 6(1) protect the right to a fair and public hearing within a reasonable time?

Answer 41

Article 6(1) of the European Convention on Human Rights (ECHR) entitles everyone to a fair and public hearing within a reasonable time. The reason behind this requirement is to ensure that accused persons do not remain under a charge for too long and that their charges are determined in a timely manner. The appropriate standard for determining a reasonable time takes into account the complexity of the case, the conduct of the defendant, and the manner in which the case has been dealt with by the authorities.

Question 42

What was the violation of article 5(4) in Hirst v UK?

Answer 42

Delays of 21 months and 2 years between reviews by the Parole Board of the applicant’s continued detention were held to be a breach of article 5(4).

Question 43

What factors are considered in determining whether a delay in a criminal trial is excessive?

Answer 43

In determining whether a delay in a criminal trial is excessive, three areas should be considered: the complexity of the case, the conduct of the defendant, and the manner in which the case has been dealt with by the authorities. These factors help determine the appropriate standard for a reasonable time requirement under Article 6(1) of the ECHR.

Question 44

When does the right in article 5(5) come into play?

Answer 44

The right in article 5(5) would only come into play if an applicant ultimately needed to take their case to the ECtHR in Strasbourg.

Question 45

What was the violation of Article 6(1) and 6(3)(c) in the Murray v UK case?

Answer 45

In the Murray v UK case, the applicant had been denied access to a lawyer for the first 48 hours of his detention following his arrest on suspicion of terrorist-related offences. As a result, he had not been able to benefit from legal advice about the consequences of refusing to answer questions during his police interviews. The European Court of Human Rights (ECtHR) held that there had been a violation of the right to a fair trial under Article 6(1) read in conjunction with the right to legal assistance under Article 6(3)(c).

Question 46

What is the right to silence and how does it relate to Article 6?

Answer 46

Although Article 6 of the ECHR does not expressly refer to a right to silence or a right against self-incrimination, these rights form an important part of any fair criminal process. The right to silence and the right not to incriminate oneself are included in the right to a fair trial under Article 6(1).

Question 47

What restrictions can be placed on the right to silence under UK law?

Answer 47

In the UK, the right to silence has been subject to some restrictions. The Criminal Justice and Public Order Act 1994 permits a court to draw adverse inferences from a defendant’s failure to mention, before or when charged, a fact or material piece of evidence which they later rely upon in their defense. This allows trial judges or juries to draw adverse inferences from the refusal of the accused to answer questions during police questioning or to give evidence at trial.

Question 48

Which one of the following statements is incorrect?

Article 2 can impose an obligation on the state to take preventative measures to protect individuals when their life is at risk from suicide.

In addition to the duty to refrain from killing, article 2 places positive obligations on the state to protect life from the actions of third parties.

Article 2 can impose an obligation on the state to take preventative measures to protect individuals when their life is at risk from other individuals.

It is possible in certain exceptional circumstances for the investigatory element of article to extend to deaths which have occurred in territory outside the UK.

It is not possible under Article 2 for the state to be liable for the death of a prisoner killed by another prisoner, because only criminal proceedings against the perpetrator could result from such an incident.

Answer 48

It is not possible under Article 2 for the state to be liable for the death of a prisoner killed by another prisoner, because only criminal proceedings against the perpetrator could result from such an incident.

Correct. While criminal proceedings could be commenced against the perpetrator in this situation, the state could also be held subject to a positive obligation under Article 2 to protect or preserve life. Note, however, that this state liability will be limited because it will only attach to state authorities if they knew, or ought to have known, that there was a real and immediate risk to life but failed to take appropriate measures.

Question 49

Whichone of the following statements is incorrect?

If a state uses force which is no more than absolutely necessary in order to defend a person from the violence of another person, resulting in the death of the perpetrator, it is unlikely that the deceased’s family could successfully argue that article 2 has been violated.

The limitations to the right to life, concerning when the use of lethal force by the state may not breach the Convention, is subject to a proportionality assessment.

The right to life is an absolute right in respect of which there can be no derogation or limitation on the part of the state.

Article 2 contains rights which, whilst limited by the wording and the application of the provision, cannot be subject to derogation.

When an individual has been killed as a result of the use of force by agents of the state, article 2 has been interpreted as requiring the state to investigate such a situation.

Answer 49

The right to life is an absolute right in respect of which there can be no derogation or limitation on the part of the state.

Correct. Whilst it is not possible for a state to seek to derogate from the right to life, article 2(2)(a) to (c) provides specific circumstances in which use of fatal force by the state may not be deemed a breach of the Convention. Article 2 is therefore not an ‘absolute’ right.

Question 50

Which one of the following statements is incorrect?

In assessing whether an investigation has been sufficient for the purposes of article 2, there is no single template for such investigations, but the court will give weight to whether the investigation was public, independent and involved the full participation of the family.

In McCann, the ECtHR established the principle that a state can violate article 2 where, although those who directly committed the killing can rely upon the limitations in 2(2), there is nevertheless a breach of the wider duty of command, control, and training.

In Rabone, the ECtHR held that the NHS Trust had breached its positive duty under article 2 by failing to take reasonable steps to prevent the real and immediate risk of suicide to a woman for whom it had adopted responsibility.

In McCann, the ECtHR interpreted article 2 as providing for a second, inherent duty on the state to investigate deaths in which the state is involved.

In Da Silva, the ECtHR held that where a death has been caused by a third party, rather than state agents, there will still be a duty to investigate.

Answer 50

In Da Silva, the ECtHR held that where a death has been caused by a third party, rather than state agents, there will still be a duty to investigate.

Correct. This finding related to the case ofR (Amin): in the Da Silva case the death was not caused by a third party but by police officers acting on behalf of the state.

Question 51

Whichone of the following statements is incorrect?

When considering whether treatment amounts to torture, the courts are unlikely to accept that an activity which aims at breaking an individual’s will, but which does not involve actual pain, will amount to torture.

It is possible for poor prison conditions to amount to a breach of Article 3 in some circumstances.

The wording of Article 3 does not provide a definition of what will amount to the treatment prohibited by the article, so case law is important in carrying out an assessment of whether particular treatment will amount to a breach of Article 3.

Assessment of whether treatment will engage article 3 is based only on objective factors such as the manner of the treatment and its duration.

Case law has established that torture is an aggravated, deliberate and cruel form of treatment or punishment.

Answer 51

Assessment of whether treatment will engage article 3 is based only on objective factors such as the manner of the treatment and its duration.

Correct. Whilst it is correct to say that these are factors which will be considered, subjective factors, such as the psychological effects on the individual person concerned, will also be taken into account (see R (B) v Responsible Medical Officer, Broadmoor.)

Question 52

Which one of the following statements is incorrect?

In Ireland v UK, the ECtHR stated that it was the intention that the Convention should attach a particular stigma to deliberate inhuman treatment causing very serious and cruel suffering.

In the case of Spinks, the Court of Appeal concluded that, for a breach of article 3 to be successful argued, the conduct by the state must be of a serious and wholly unacceptable kind.

In assessing whether the threshold for inhuman and degrading treatment has been met the court will consider such factors, as the nature and context of the treatment, the manner of its execution, its duration, and its physical and mental effects.

In Soering, the ECtHR established that article 3 would not be engaged where the positive obligation on the state arose through the individual’s intended removal to a non-ECHR member state.

In Napier, the ECtHR found that prison conditions which had a detrimental effect on the applicant’s physical health could amount to inhuman or degrading treatment.

Answer 52

In Soering, the ECtHR established that article 3 would not be engaged where the positive obligation on the state arose through the individual’s intended removal to a non-ECHR member state.

Correct. Soering did not limit the application of the positive obligation of the Convention to cases where the removal would be to an ECHR member state. Soering was able to successfully argue that if the UK extradited him to the USA, it would breach its positive obligation under article 3.

Question 53

True or false: Whilst it is the case that the negative obligation on the state under article 3 is an absolute one, the positive obligation is not.

Answer 53

True

This accurately describes the differing natures of the negative and positive obligations under article 3. Whilst there is an absolute duty on the state to refrain from causing torture or inhuman and degrading treatment, the extent to which the positive obligation applies depends upon the facts and the overall context of each situation. Refer to Soering v UK.

Question 54

True or false: Control measures used by the police, such as keeping opposing supporters apart at a football match in order to prevent violence, will not amount to a deprivation of liberty under article 5 provided they are proportionate and not imposed arbitrarily.

Answer 54

True

Question 55

Which one of the following statements is incorrect?

In the case of Engel, the ECtHR stated that the starting point for distinguishing between deprivations of liberty and mere restrictions is the objective of the state and the purpose of the measures.

In Fox, Campbell and Hartley, the ECtHR found that, in order for the requirements of article 5(1)(c) to be met, an arresting authority would need to have evidence which would satisfy the objective observer that the person may have committed the offence.

In Sunday Times, the court held that the legal basis of an interference must be adequately accessible, and formulated with sufficient if not absolute precision, to allow citizens to regulate their conduct and to reasonably foresee the consequences of their actions.

In S, V & A v Denmark, the Grand Chamber held that the detention of a person under article 5(1)(c) could permit the short-term detention of a person outside criminal proceedings for the purpose of preventing a concrete and specific offence.

In Ostendorf, the ECtHR held that the detention of a person under article 5(1)(c) must be for the purpose of bringing him before a competent legal authority.

Answer 55

In the case of Engel, the ECtHR stated that the starting point for distinguishing between deprivations of liberty and mere restrictions is the objective of the state and the purpose of the measures.

Question 56

True or false: If a court decides that the detention of a person is not legally justified, article 5(4) requires that that individual should be released by order of the court.

Answer 56

True

Question 57

True or false: Even if the arresting authority does not immediately inform the individual of the reasons for their arrest, there may not be a violation of article 5(2) if, in the course of subsequent questioning, the reasons for the person’s arrest with reference to specific offences become sufficiently clear within a reasonable time period.

Answer 57

True