Human Rights Flashcards
The UK has a dualist system and therefore, international law can only be enforced against the UK state where either…:
- A claim is made against it to an international court. Before the HRA 1998, persons wishing to enforce their rights under the ECHR against the UK had to take their case to the European Court of Human Rights (‘ECtHR’);
or
- The UK has incorporated international law rules into its domestic law by passing a statute. If this is done, UK domestic courts are able, and duty bound to enforce those rules.
The protected ECHR rights can be divided into 3 categories which the HRA incorporated into UK law, what are they (+Article no.)
ABSOLUTE RIGHTS - rights that cannot be legitimately interfered with by the state.
=> Article 3: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
=> Article 4: Prohibition on slavery and forced labour; it applies in relation to human trafficking.
=> Article 7: Provides that there shall be no punishment without lawful authority, with particular regard to retrospective criminalisation
and punishment.
LIMITED RIGHTS - rights that can, in certain prescribed circumstances contained within the
articles themselves, be legitimately interfered with by the state.
=> Article 2: the right to life
=> Article 5: the right to liberty
=> Article 6: the right to fair trial and fair legal process
QUALIFIED RIGHTS - where a balance has to be struck between individual rights and the wider public interest.
=> Article 8: right to respect for private and family life
=> Article 9: freedom of thought, conscience, and religion
=> Article 10: Freedom of expression
=> Article 11: freedom of assembly and association
why was the concept of positive obligation developed by the ECtHR?
in response to situations where the violating activity has been committed or could be committed not by the state, but by private individuals.
Under this principle, the state can, in certain circumstances, be under a duty to prevent the violation of human rights being carried out by the
relevant non-state actors.
Which one of the following statements is INCORRECT?
A. The right to life in article 2 is limited by prescribed circumstances contained in the article itself.
B. The right to liberty and security of person contained in article 5 of the ECHR is a qualified right because the state can, in certain circumstances, interfere with that right.
C. As article 3 is an absolute right the state cannot justify either interfering with a person’s article 3 rights or seeking to derogate from its obligations with respect to this article.
D. Article 8 is a qualified right as, subject to the requirements of article 8(2) being met, the state can justify interfering with the right to respect for private and family life.
E. The state can, in principle, justify interference with the right to freedom of expression because it is a qualified right.
B. Article 5 is a ‘limited’ right not a ‘qualified’ right and there is a clear distinction between these two forms of rights.
What are the only three exceptions to ARTICLE 2 ECHR (right to life)?
- self-defence
- lawful; arrest
- quelling a riot
what are the two positive obligations that can be imposed by Article 2?
- to conduct an investigation into situations in which a public body has directly taken a life
- a positive duty to refrain from unlawful killing
what is Article 3 and what is the threshold
Article 3 - prohibition of torture and inhuman or degrading treatment or punishment (IDT)
it is an absolute right
HIGH THRESHOLD
- psychological techniques (inhuman treatments, degrading treatment, and torture)
- being handcuffed, stopped naked, regularly beaten and electrocuted
- being raped, beaten and spun around at a rapid speed
what is the meaning of slavery and forced labour under Article 4 (prohibition of slavery and forced labour)
SLAVERY means “the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”
FORCED LABOUR means “work or service exacted” ie forced or required involuntarily
what is the exception Article 5 (right to liberty and security)?
cases of lawful arrest, and in accordance with procedure prescribed by law
In which cases does Article 6 (right to a fair trial and the presumption of innocence) apply to?
applies in cases determining “civil rights and obligations and any criminal charge” the determination must be by “an independent and impartial tribunal established by law.
in CIVIL cases, the matter must have been determined before Article 6 may be relied on, whereas in CRIMINAL cases Article 6 is engaged as soon as an individual is charged.
A fair trial must follow a fair procedure and safeguards which must be followed. Give examples.
- legal advice should be free where the Applicant cannot afford it and the interest of justice requires it
- court will look at the complexity of the law when deciding whether a trial can be fair when one party is unrepresented.
- it is unlawful to deny access to legal advice
what is Article 7?
No punishment without law - an obligation not to create penal laws with retroactive effect ie not later criminalising activity with was not AT THE TIME prohibited.
What is the key to ensuring Article 7 is not violated?
it must be reasonably foreseeable that the new situation falls within the prohibition imposed by the pre-existing law.
what is the key objective of Article 8 (right to private life and family life)?
a qualified right to protect individual citizens against arbitrary interference in their private life.
How are the parameters of the the protection of private and family life defined in case law (Art 8)?
Private life - includes physical and moral integrity
+ includes image rights (rg for public figures)
sexual orientation - it was held to be a breach to expel service personnel from the Army for being homosexual.
Searches of the person - must have a degree of seriousness before Art 8 right are engaged.
Family life - the right to respect for family life will be important in cases and disputes involvIng spouses, partners and children.
