human rights Flashcards
ECHR
main treaty in europe, accepted by council of europe 1950 an legally binding
accepted by all 46 MS, lists many rights and freedoms from UN treaties - some additional protocols (legally binding) add more rights and other additional protocols amend the core treaty e.g. abolition of death penalty
protocols to the european convention
protocols are international agreements and additional rights e.g. education, electoral rights
states must accept various protocols
other protocols change the EC - these need agreement from all states which accept convention
protocol 15 to the ECHR
august 2021 - important to the UK - focused on issues like power of court and some aspects of case law - keen on inserting clauses limiting the impact of the convention/court
key issue: principle of subsidiaries formally recognised - decisions can be taken at subregional or subnational level
margin of appreciation formally mentioned - doctrine that evolved through functions of court, issues from how to handle cases and deal with backlog of cases many with identical issues by different ppl
european court of human rights
established by convention to consider cases - originally a separate commission - therefore convention gives all info on judges and court
rules of procedure provide technical details for bringing cases
one judge per country (article 20 and 21) must act independent of their/any country and appointed by agreement of all countries
issue binding decisions (article 46)
understanding HR
law should be clear and prospective so gov knows what they are doing is right and know when rights have been breached
treaty is a living instrument
scope of rights and freedoms change over time - interpreted and applied to reflect general societal attitudes e.g. LGBTQIA+
tyrer v UK 1978 - involved corporal punishment and convicted of offence in due course with law and punishment were strokes of the breach - court case argued that corporal punishment was humiliating and violation of article 3 - brought to ECHR that this was degrading - court held 6-1
rights can be redifined by case law and treaties - new issues arise which arent foreseen when treaty drafted e.g. internet
courts can reverse own decisions
various types of rights and freedoms
absolute rights - article 3 - prohibition of torture, inhumane or degrading treatment
limited rights - states can in some circumstances breach the right and it is justifiable - article 2 (right to life - depreciation of life by self defence or use of force by police) and 5 (restrictions on deprivation of liberty - can detain ppl)
McCann, farrell and savage V UK 1995 - shooting ans killing of suspected IRA terrorists reached ECHR, whether violation of article 2 to have SAS kill man when sure going to carry out terrorist attack - court = not a violation to article 2 but violation that UK knew they were driving through spain so could have stopped them earlier
qualified rights: specific balances between rights and freedoms and ways you can satisfy interference, series of checks carried out - has there been interference with enjoyment of the rights and freedom is yes then is it justified? (legitimate aim by law and is it necessary to democracy) article 8 and 11
what infringement justified - article 8 and 11
decided on case basis on all the circumstances of each case
hatton v UK - concerned nights landing and heathrow airport - contrary to article 8 - right to family and home life and gov said matter of public policy and an economic necessity to have larger airport
mosley V UK 2011 - news headline ‘F1 boss has sick nazi orgy with 5 hookers’ - paired with secret video footage - mosley stated against privacy as no consent to photographs - whether press have full freedom of expression or not - stated no as there was public interest so lost case
balancing rights and freedoms of others
often case specific
press freedom of expression v privacy of individual/family rights
Mosley V UK
campbell V mirror group newspapers ltd - Naomi Campbell photographed going to anonymous meeting and not previously discussed in public she had an addiction - privacy shouldve been respected as she was seeking treatment
HRH duchess of sussex v associated newspapers - meghan markle suing newspaper for publishing letters to her father
article 15 - ‘derogations’ from treaty
opt out from treaty or derogate - few technical requirements in article 15 (time of war)
UK - lawless v ireland (no.3) Ser A - detention in NI
brogan and others v UK - whether derogations going too fair and could detain ppl
covid 19 - many countries didnt put in derogations despite many rights being infringed some did e.g. georgie, albania, estonia
subsidiarity
UK gov = keen on incorporating into CoE and UN as concerned with cases passed by courts
comes about as states are primary obligees in terms of convention - ensures R/F are protected european court has a supervisory role - reviewing state action - Q whether this respects national sovereignty
handyside v UK 1976 - says courts points out that the machinery of protection is subsidiary to the national system safeguarding HR and convention leaves to each state the security - up to government and courts are just overlooking to see if they have gone overboard
must exhaust domestic remedies - give the gov every opportunity to remedy position before case taken to ECHR
democratic resolution through committee of ministers - try encourage gov to try remedy violation found
margin of appreciation - in protocol 15 - flexibility in interpreting and applying provisions
rules which evolved through court by which recognition that government is the right position to make decisions on certain aspects relating to HR and not for court to do anything - state = some discretion in context of national situation e.g. national security
handyside case - concerned the little red school book and caught under obscene publications in UK but acceptable in other countries in europe - court states article 10 para 2 - margin of appreciation given to domestic legisaltion and courts responsible for observing states engagement and give ruling whether restriction is reconcilable with freedom of expression - domestic margin or appreciation is hand in hand with european supervision
Specifically, it is the principle whereby the EU does not take action (except in the areas that fall within its exclusive jurisdiction), unless it is more effective than action taken at the national, regional or local level.
bringing a case to the european court
look at treaty for the answers
article 35 - admissibility - requirements before bringing to courts - before a single judge (art. 27) and time limit which is 4 months and have to exhaust domestic remedies
article 38 and 40 - consideration of case - before a committee (3 judges) chamber (7) and grand chamber (17), admissibility again, facts, merits and judgements are here
article 42-45 - judgements - judgements = final though there may be a referral before that to the grand chamber
results from taking a case to strasbourg
article 39 - friendly settlement - between gov and individual can be negotiated
article 44 - decisions against state
article 41 - ‘just satisfaction - not always damages given
monitoring by committee of ministers of implementation
comm can return a case if considered that the state has no complied with judgement - article 46(4) - kavala v turkey
