Human rights Flashcards
What articles did Ireland v UK 1979-80 breach?
Article 3 - Torture
Article 5 - right to liberty and security
Article 6 - right to fair trial
What is the one body now
European court of human rights
ECHR applies to?
Anyone within territory of state which ratified the ECHR
Article 34?
Requires signatories to allow anyone who alleges a violation of the convention to apply to the ECHR
Dudgeon v UK 1984
D homosexual in NI when being gay illegal
Not prosecuted but alleged right to private life under article 8 infringed
Judgment given in favour
Effectiveness principle
Rights that are guaranteed by convention are not theoretical and illusory but practical and effective
Airey v Ireland 1979
A victim of domestic violence as husband prosecuted but it was not possible to divorce. Told to seek judicial separation but could not afford legal rep
Breach of right to fair trial article 6
ECHR as autonomous and interpretation independent of legal systems
Ensures states can’t undermine convention using legal technology
Such as considering penalty imposed as criminal and subject ti article 6, ECHR will ignore legal label
Umlauft v Austria 1996
Admin sentence order refusing alcohol breath test
Refusal could admit prison for failure to pay fine
Claimed right to fair trial to criminal charge under article 6 infringed
State countered arguing under Austrian law was not criminal thus not applying
ECHR is not static it is
A living instrument and must be interpreted in light of present day conditions
Tyler v UK 1976
Juvenile birched and breach of article 3
Court must recall convention living instrument
Court cannot but be influenced by developments of standards in penal policy
Selmouni v France 1999
S arrested, dragged by hair, run up corrider and tripped, beaten and threatened
Infringed article 3 not as just inhumane and degrading as earlier years would have said but amounted to torture
Selmouni v France 1999
S arrested, dragged by hair, run up corrider and tripped, beaten and threatened
Infringed article 3 not as just inhumane and degrading as earlier years would have said but amounted to torture
Margin of appreciation
Area of freedom of action exercise of executive discretion for states with ECHR cannot interfere
Qualified rights?
They can be restricted
1) Id there an infringement of the right
2) infringement prescribed by law
Malone v UK 1984
M charged stolen goods but had phone tapped and sued police
Breach of article 8 and there was no express law that indicated “with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities.”
Restriction for one or more reasons in article
It is important to check article concerned to ensure that the restriction is made for reason outlined in article
Restriction necessary in democratic society
Requires member state show it meets pressing social need.
ECHR Vertical effect
Convention binds states and individual can rely on it against the state
A v UK 1999
Kid severely beaten which dad got away with parental chastisement
UK in breach of article 3 and failure to protect this article
Positive obligation of the state
Aim to impose positive obligation on states to protect human rights
Chahal v UK 1989
UK violated article 3 by threatening deportation due to national security of C back to india where he was at risk of being tortured
Conflicting rights
Affects qualified right where impact of other rights simply one of the factors to be considered when striking balance
Derogations - Article 15
Times of war or emergency threatening life of nation any high contracting party may take measures derogating from obligations
open to challenge and only derogate from certain rights
Article 2
Right to life - State can only deprive this in necessary and certain circumstances
Article 3
Freedom from Torture, inhumane and degrading treatment - unqualified right
Ireland v UK
Series of article 3 breaches
Inhumane activity
Behaviour falling short of torture
Can apply to extradition and deportation if fate awaiting victim will be inhumane
Article 4
Prohibition of slavery and forced labour
Article 5
Liberty and security
Concerned with right not to be detained without trial and links well with article 6
Article 5 compatible with
Article 15 - derogation at times of national security such as 9/11 terrorist attacks
Article 6
Right to a fair trial - absolute right
Individual elements are not themselves absolute
Article 6(1)
Applies to criminal matters and civil rights not covering all of private law
`Must be in reasonable time
Article 6(2) and (3)
Only apply to criminal charges
Wemhoff v Germany 1968
W broker detained 3 years complained not had hearing in reasonable time 6(1)
Held no violation as he could have suppressed evidence if released
Length determined by complexity of case
Article 7
No punishment without law
Article 8
Privacy and family life
Covers right to privacy, freedom from search of home, family
Failure to prevent intrusion may be covered such as from tabloid
Specifies no interference with its rights by public authorities
Smith and Grady v UK 1999
UK violated Article 8 by prohibiting homosexual members of armed forces from serving openly
Article 10
Freedom of expression - heavily qualified
Article 10 Hierarchy of protection?
Top political speech
Social expression
Bottom commercial expression and those involving press into private lives
Article 11
Freedom of association - qualified
Protects right to freedom of peaceful assembly
Article 12
Right to marry and found a family
Member states granted wide margin and restriction must be reasonable
Article 13
Right to an effective remedy
Article 14
Prohibition on discrimination
Rights shall be enjoyed without discrimination but this is not treated equally
