Human Rights Flashcards
1
Q
How can proceedings be commenced?
A
a. State applications -another signatory state
b. Individual petitions-individuals who allege convention rights breached as a result of domestic law
2
Q
What must be shown when commencing a claim?
A
*Domestic remedies have been exhausted
*Within 4 months of domestic judgement
3
Q
What are the 2 stages in the process?
A
- Admissibility stage-Single judge declares if app inadmissible if obvious from outset
- Merits stage-case heard by 3 member committee or chamber of judges
4
Q
Can you appeal ECHR decision?
A
- . Admissibility stage=no
- . Merits stage=can ask case to be referred to grand chamber within 3mo (before chambers judgment final), Grand chambers judgement final
5
Q
Remedies
A
a. Compensation
b. Requiring states to change law BUT decisions are only binding as matter of international law NOT domestic law
6
Q
Meaning of ECHR being a living instrument
A
Generously interpreted, as understanding of HR may change with evolving social conditions
=NO strong system of precedent
7
Q
Types of rights
A
*Absolute-CANT be interfered with
*Limited-Can only limit in defined situations
*Qualified-can interfere if prescribed by law, Pursuant to legitimate aim, proportionate (necessary in a democratic society)
8
Q
Qualified rights: what is the meaning of Prescribed by law
A
*domestic law, written or unwritten
*must be accessible (in published form) and sufficiently precise
9
Q
Qualified rights: what is frequently specified in convention as legitimate state aims?
A
□ National security
□ Economic well-being of country
□ Prevention of disorder/crime
□ Protection of health/morals
□ Prevention or disclosure of info received in confidence
□ Maintaining authority and impartiality of the judiciary
□ Public safety
□Protection of rights/freedoms of others
10
Q
Qualified rights: what does a democratic society include?
A
tolerance of minority opinions/lifestyle
11
Q
Qualified rights: what is the proportionality test?
A
- Does the aim justify the interference?
- Is the measure is rationally connected to the objective?
- Could a less intrusive measure have been used ?
- Need to strike a balance between the rights of the individual and interests of the community.
12
Q
When can states derogate from the ECHR?
A
in time of war or other public emergency threatening the life of the nation
13
Q
What rights CANT be derogated from?
A
- 2 life (EXCEPT deaths resulting from lawful acts of war)
- 3 torture, etc
- 4(1) slavery
- 7 retrospective criminal offences
14
Q
What is article 2?
A
Life
Absolute (with exceptions defining its scope)
15
Q
What is article 3?
A
Freedom from Torture, Inhumane or Degrading Treatment
Absolute, no limitations or exceptions
16
Q
What is article 4?
A
Prohibition of Slavery and Forced Labour
Absolute
17
Q
What is article 5?
A
Liberty and Security of the person
Limited
18
Q
What is article 6?
A
Fair Trial
Absolute as to fair trial
Limited in relation to trial being in public
19
Q
What is article 7?
A
No punishment without law
Absolute
20
Q
What is article 8?
A
Right to Respect for Private and Family Life
Qualified
21
Q
What is article 9?
A
Freedom of thought, conscience and religion
Absolute in relation to thought, conscience and religion (in atheists)
Qualified in relation to manifestation of freedom in worship, teaching, practice or observation.
22
Q
What is article 10?
A
Freedom of Expression
Qualified
23
Q
What is article 11?
A
Freedom of (peaceful) Assembly and Association
Qualified
24
Q
What is article 12?
A
To Marry
Absolute but according to national law (if restrictions aren’t arbitrary)
25
What is article 13?
Right for an effective remedy before national authorities for violations of rights under the Convention
26
What is article 14?
Protection from discrimination
27
What is article 15?
Derogation
28
What is article Art 1 Protocol 1
Protection of property
Qualified
29
What is Art 2 Protocol 1
to education
30
What is Art 3 Protocol 1?
right to free elections
absolute
31
What is art 1 protocol 13?
Abolition of death penalty
32
What is the effect of a right to life?
It:
□ Prohibits state from taking life
□ Places positive duty on state to protect life
33
Does a2 (life) prohibit the death penalty?
No but UK law does-cant be reintroduced except for acts committed in time of war/imminent threat of war
34
A2: when may force resulting in death be used?
If no more than absolutely necessary:
1) To lawfully quell a riot/insurrection
2) In defence of any person from unlawful violence
3)To effect lawful arrest/prevent escape of lawfully detained
35
Does a2 (life) protect Embryos/foetuses?
No
36
Is the right to die read into the right to life?
no
37
A2: what is the duty to investigate?
* Requires state to carry out a full and thorough investigation into alleged breach of A2
* By people independent of those implicated in events
38
A3: what is 'torture'?
deliberate inhumane treatment causing very serious and cruel suffering'
39
a3: what is 'Inhumane treatment'
treatment/punishment 'likely to cause actual bodily injury or intense physical and mental suffering
40
a3: what is 'Degrading treatment'
'treatment which humiliate or debases an individual showing a lack of respect for, or diminishing his/her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individuals moral and physical resistance'
41
How does a2/3 relate to deportation?
Violation of art 2/3 if individual deported/removed/extradited to country where there was a real risk they might be killed, tortured or treated in any other way that would violate art 2/3.
42
a4: what is NOT forced/compulsory labour?
1. work ordinarily done by convicted prisoners as part of sentence;
2. compulsory military service
3. work required in an emergency or calamity threatening the life or wellbeing of the community
4. work forming part of normal civic obligations
43
a4: what is slavery?
'the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised'
44
a4: what is servitude?
an obligation on the part of the person who is the ‘serf’ to live on the property of another, and an inability for that person to change that condition.
45
a4: what is Forced/compulsory labour and what is considered when deciding what is?
work or service that an individual is forced to do against their will (circumstances must be considered inc. type of work, penalty if not carried out, level of hardship/oppression)
46
does human trafficking fall within a4 (slavery)?
Yes
47
a5: when can the state detain?
1)after conviction of criminal offence
2) ensure compliance with court order
3) Arrest on reasonable suspicion of having committed a criminal offence/prevent from committing an offence/prevent fleeing after having committed an offence
4) Minor for educational supervision
5) Mentally ill for own/others protection
6) In connection with asylum, deportation, extradition
48
a5: requirements for arrest and detention to be lawful?
1. breach/reasonable suspicion of breach of known law
2. give reasons for arrest and charge (promptly in language they understand)
3. Prompt and fair trial
4. JR available to challenge legality of detention
5. right to compensation for breach of a5
49
a5: what are the Requirements to prevent deprivation of liberty from being arbitrary?
1. carried out in good faith (closely linked to purposes)
2. necessary (less sever measures have been considered and rejected)
3. Length shouldn’t exceed whats reasonably required for purpose
4. Proper records of reason kept
5. Detention lawful in terms of national law of state
50
a5: what restrictions on movement DON’T engage article 5 bc don’t deprive individual liberty?
*Anti-Social Behaviour Order
*Football Banning Order
51
a5: can someone be deprived of their liberty without prison?
Yes but need:
1. significant element of physical confinement
2. AND significant restrictions on life that can be lived when not confined
52
a5: what is the 'Kettling' of protesters' and when has it been held to not be a breach of a5?
Containing group in area for limited period in interests of public order.
Whilst the coercive nature, duration and effect of the containment suggested a deprivation of liberty, the context was significant:
*Police had no alternative and kept under review
*Dangerous conditions necessitating corden existed throughout
53
a6 (fair trial): how do you determine if something amounts to a criminal charge?
1) Does national law classify as criminal (rather than disciplinary or administrative)?
2) Court determines if the proceedings are similar to criminal trial? (eg. Finding of guilty/innocence/purpose is punishment)
54
What does A6(1) provide?
fair and public hearing within reasonable time by independent court (for civil and criminal)
55
What does a6(2) provide?
Presumed Innocent until proven guilty (crim offences)
56
What does a6(3) provide?
Min rights if charged with criminal offence
57
What does a6(1) (fair and public hearing within reasonable time by independent court) provide for criminal offences
□ Individual should have **access to the court**
□Court should be **independent and impartial**
□ Trial in **public** and decision pronounced publicly
□ Trial should take place within a **reasonable time**
□ Trial should be **conducted in a fair way**
58
What does a6(1) mean by 'the court should be independent and impartial?
*No political motive
* Judges should have no personal interest in outcome of case
Direct interest=bias presumed
Indirect interest=no presumption
59
a6(1) when can the press can be excluded from all/part of a trial?
1. Interests of **morality, public order or national security**
2. Interests of **juveniles** or the protection of the **private life** of the parties
3. **Special circumstances** that, in the opinion of the court, would prejudice the interests of justice.
60
a6(1) what is the time limit for a criminal trial to be held within a 'reasonable time'?
Shouldn’t be held in custody over 182d (6mo) before trial
61
What does a6(1) mean by the 'trial should be conducted in a fair way'?
D should have effective participation (be present, understand proceedings
62
a6(1) can you include illegally obtained evidence in a criminal trial?
Yes, unless:
□ circumstances make it unreliable
□ Breach of a3 (obtained thru torture)
□Obtained thru oppressive police behaviour (s76 PACE) (inc. inducement to confess
63
a6(2) can the Right to remain silent can be read into presumption of innocence?
Yes BUT drawing adverse inferences from silence doesn’t breach a6(2)
64
Do strict liability offences breach a6(2) (presumption of innocence)?
No if reasonable
65
a6(3) what are your minimum rights if charged with a criminal offence?
1. Be **informed** promptly and fully the detail of the case against them in language they understand ( Inc police on arrest and prosecution disclosing evidence )
2. Sufficient **time and facilities** to prep defence
3. **Defend self** personally/have legal representation provided by state if needed
4. Call/cross-examine **witnesses**
5. Free **interpreter** if needed
66
Does withholding witness identity for national security breach a6?
No
67
What is included within a7: no punishment without the law?
○ Cant be charged with criminal offence for conduct that wasn’t a crime when it was committed (No retrospective criminal offences)
○Court cant impose a higher penalty than was applicable at time offence was committed.
68
What does article 7 NOT preclude?
trial and punishment of acts that are criminal according to general principles recognised by civilised nations (eg. Prosecution of nazi war crimes)
69
What is covered within article 8(right to respect fort private and family life)
Everyone has the right to respect for his private life, family life, home, correspondence
70
a8: what does 'private life' include?
□ Bodily integrity (forced medical treatment)
□ Personal autonomy (decisions)
□ Sexuality
□Personal info (holding/disclosure)
71
Does retaining Fingerprints and DNA breach a8?
Protection of Freedoms Act 2012 now requires deletion of some DNA profiles as was held to be a disproportionate interference with the applicants’ right to respect for private life
72
a8: what does 'family life' include?
relationship with close family/ inc. couple who aren't married but live in stable relationship.
73
a8: for deportation, removal and extradition, how is consequences to health relevant?
a8 could be engaged where the main issue was the consequence for their mental/physical health of removal.
High threshold-have to show violation of rights would be flagrant (not just healthcare standards not as good)
74
a8: what factors are considered when deciding if deportation, removal or extradition would breach a8 in relation to family ties?
a) Length of time in country
b) Seriousness of offences
c) Time between offence and conduct during that period
d) Family circumstances
e) Ages/interests of kids
f) Seriousness of difficulties fam may experience I receiving country
g) Nature of individuals ties with expelling/receiving country
75
How does a8 relate to climate change litigation?
a8 inc right of effect to effective protection by State authorities from serious adverse effects of climate change on their life, health, well-being, and quality of life
76
What has held to have been a breach of a9 (thought, conscience, religion) in the workplace?
Not allowed to work for BA wearing Christian cross visibly
77
What has held to have NOT been a breach of a9 (thought, conscience, religion) in the workplace?
1. Couldn’t wear cross nursing (for protection of health)
2. Dismissed for refusing to register civil partnerships
3. Dismissed for refusing to provide marriage counselling to same sex couples
78
Case example for article 8 (thought, conscience, religion) in schools?
Girl expelled for wearing jilbab
Not breach of rights-attended school outside catchment, no evidence of difficulty attending school in catchment that permitted jilbab and had worn shalwar kameez for first 2y of school. Uniform rules acceptable to mainstream Muslim opinion
79
What are the restrictions on a10 (expression)
1. Can interfere in the interests of national security
2. Ban on political advertising
3. Whilst political free speech has high degree of protection, even if offensive, shocking or disturbing, Outright racist views not protected by art 10
80
What does a10 (expression) not protect (from case law)?
views incompatible with values underpinning ECHR eg. Tolerance, respect, non-discrimination
81
a10: what offence/defence does the Public Order Act 1986 create in connection with racial, religious and sexual hatred.
Offence to use threatening/abusive words or behaviour, or to display any writing, sign or other visible representation that is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress by such actions.
Defence: show that their conduct was reasonable.
82
What was considered when deciding if a conviction under POA for threatening/abusive behaviour is proportionate?
◊ did behaviour go beyond legitimate protest;
◊ was behaviour part of an open expression on an issue of public interest but had been disproportionate and unreasonable;
◊ could views have expressed their views in another way;
◊ the knowledge of the individual of the likely effect of their conduct upon those who witnessed it
◊ whether the use of any object – in this instance a flag – had no relevance to the conveying of the message of protest and had been used as a gratuitous and calculated insult.
83
Conditions for a11 to protect freedom of assembly and what does 'assembly' inc?
Must be a 'peaceful assembly'
Inc, priv meetings and meetings on puvlic highways, static meetings, public processions.
84
Explain how a11 creates a positive right to freedom of assembly
*May breach if state does not take positive measures to protect the exercise of the right and to protect protesters from those wishing to stop their protest or attack them
* BUT no absolute obligation to facilitate peaceful protest, so it may be lawful for the authorities to restrict protest if it is provoking/ likely to provoke, others to respond violently.
85
a11: meaning of 'freedom of association with others'?
-participate with others in organised way in pursuit of a common aim (eg. Pressure groups, political parties, religious organisations)
86
a11: can the state proscribe (ban) party/organisation under freedom of expression?
Yes
87
What does a12 (marry) include?
○ Men, women and transexual ppl (as of 2002) of marriageable age have the right to marry and start a family
88
a12: does the right to marriage always have to include same sex marriage
no
89
Why did prohibiting marriage of father in law to daughter in law violate a12?
Because restrictions must not be arbitrary
90
What does a14 (protection from discrimination) include?
○ All rights/ freedoms in ECHR must be protected/applied without discrimination on any grounds such as sex, race, colour, language, religion, political/other opinion, national/social origin, association with a national minority, property, birth or other status.
91
Is the right under a14 (protection from discrimination) 'free standing'?
No, victim must show that the discrimination has affected their enjoyment of one or more of the other rights in the Convention
92
Does a14 cover both direct and indirect discrimination?
Yes
93
Art 1 Protocol 1 what is included and when will it be engaged?
○ Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
○ Will only be engaged if interference affects the **financial value** prop (ie, not nuisance)
94
What are the restrictions on Art 1 Protocol 1 (possessions)?
* Can interfere if Lawful and necessary for public interest
* Generally, 'deprivation of property' not in public interest unless owner receives compensation
* Must balance interests of prop owner and pub as whole (compensation key)
95
Does a public authority enforcing taxes or fines breach right to property?
No
96
What rights are protected under Art 2 Protocol 1 (education)
* Right of access to educational institutions existing at a given time (does not require the Government to provide or subsidise any particular type of education)
* Right to official recognition of the studies a student has successfully completed.
97
Does using a school admission policy breach a2 pro 1(education)
No so long as they are objective and reasonable.
98
a2 pro 1(education): can parents expect their religious/philosophical beliefs are respected
Yes BUT not absolute guarantee: curriculum may be determined by state if consistent with requirements of objectivity and pluralism and respect the parents’ different religious and philosophical convictions.
99
Can you challenge exclusion from school under a2 pro 1(education)
Usually cant evoke this right for exclusions due to disruptive behaviour
100
What does Art 3 of Protocol 1 (free elections) cover?
States must hold **free elections** at **reasonable intervals** by way of **secret ballot**.
Can decide what electoral system
101
Art 3 of Protocol 1 (free elections): how are prisoners affected?
UK prisoners cant vote
BUT blanket ban on all prisoners voting breached=prisoners released on temporary licence/home detention curfew can vote
102
Does Art 1 protocol 13-abolition of death penalty include crimes committed during a war or when the threat of war is imminent?
yes
103
s1 HRA 1998
Incorporates gives effect to Convention Rights
104
s2 HRA 1998
domestic courts must **'take into account'** judgements of ECtHR but aren't bound to follow them.
105
s3 HRA 1998
Past and future domestic leg must be read in a way compatible with convention rights (So far as is possible to do so)
106
s4 HRA 1998
High Court and above may declare AoP incompatible with Convention rights
107
Does a declaration if incompatibility under s4 affect the validity, operation or enforcement of an AoP?
No, just puts political pressure on gov
108
s6 HRA 1998
unlawful for pub authority to act in way incompatible with convention rights
109
What is an exception to s6 HRA (unlawful for pub authority to act in way incompatible with convention rights)
*authority couldn’t have acted differently
*OR is giving effect to/enforcing provision of an Act which are incompatible with the Convention s6(s)
110
Are Public body and public authority synonymous for s6 and what is the effect of this?
Yes (=can use JR to set aside incompatible delegated legislation)
111
Effect of a6 HRA on delegated legislation
*Courts MUST apply incompatible AoP
*BUT can use JR to set aside incompatible delegate legislation
112
s7 HRA 1998
if bringing proceedings under s6, must be a 'victim of the unlawful act'
113
What does it mean to be a 'victim' under s7?
○person/organisation must be directly and personally affected
○ 'Person=individuals, NGOs eg. Companies, political parties, trade unions NOT pressure groups
○ SOMETIMES close relatives of v (eg. For breach of art 2/3)
114
s8 HRA 1998
can award damages in civil proceedings if public authority infringes right if its necessary 'to afford just satisfaction' to injured party.
115
is s8 HRA power to award damages used often?
No, mostly not needed as there will be a common law cause of action
116
s10 HRA 1998
If decleration of incompatability made under s4, the Minister who introduced the leg can make a 'remedial order' to amend legislation
117
s11 HRA 1998
Minister introducing future legislation must make a written **‘statement of compatibility’** or that, although they are unable to make a statement of compatibility, the Government wishes to proceed with the bill.
118
What can a 'remedial order' under s10 do?
amend or repeal the offending legislation
119
can a s10 remedial order change the common law?
no
120
alternative to remedial order under s10?
Government may submit a bill to Parliament to amend or repeal the offending legislation
121
What is Horizontal effect
*Means HR can be enforced between priv bodies/individuals *can bring a case based on an existing cause of action, (eg.tort) and thecourt, as a public authority under s 6 of the HRA 1998, is then under a duty to act compatibly with Convention rights when deciding the case.
122
What happens if theres a conflict between an absolute and a qualified right
absolute will be given priority (subject to context)
123
Conflict: what right does the HRA say courts should have particular regard to?
Freedom of expression
Where proceedings relate to journalistic, literary or artistic material, the court must consider the extent to which the material is already in the public domain, whether publication would be in the public interest and any relevant privacy code.
124
What factors should be taken into account when deciding whether to grant injunction protecting identity (Mary Bell)
(a) X’s fragile mental health;
(b) the young age at which she committed the offences
(c) the length of time that had expired since offences were committed; and
(d) the serious risk of potential harassment and possible physical harm
125
Conflict: what is the proportionality test for conflict of qualified rights
1. Is the article engaged? ie 'reasonable expectation of privacy? (objective)
2. Balancing exercise between conflicting claims of a8/10
126
Conflict: when deciding if theres a reasonable expectation of privacy, what should be considered?
All circumstances inc:
◊ Attributes of c
◊ Nature of activity being engaged in
◊ Place where it happened
◊ Nature and purpose of intrusion
◊ Absence of consent
◊ Effect on clamant
◊ The way/purpose for which the info reached the publisher
127
Conflict: what should be looked at for the balancing exercise in stage 2?
1. comparative importance of the actual rights being claimed'
2. justifications for interfering with or restricting each of those rights.
3. 'applying the proportionality test to each..'
128
Conflict: What types of free speech have priority?
◊ Political/artistic speech>stories about intimate details of priv life
129
Conflict: what did the court hold in Campbell?
Newspaper entitled to 'set the record straight' BUT photo of leaving treatment priv/might deter from further treatment/lack of compelling evidence why public needed this info=breach of a8
130
Conflict: in Von Hannover 1, regarding photos, what was a decisive factor in striking a balance?
whether the publication contributed to a debate of general public interest?
131
Conflict: what principles for photos came from Murray?
□ For proportionality/balancing act: the question of whether the publication of those private facts would be considered highly offensive to an objective, reasonable person might be relevant.
□ generally law should protect children of public parents from intrusive media attention
132
Conflict: principle from Mosley (Nazi- themed sado- masochistic orgy)
"it is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law"
133
Conflict: principle from Ferdinand (football captain)
since Ferdinand had stated that he was a family man, there was a public interest in demonstrating that this image was false, particularly since he was by then captain.
134
Conflict: principle from Hutchenson
□ those who chose to conduct their quarrels publicly took the risk that they might not be able to subsequently insist on clear boundaries between what was public and what was private (regardless if public figure or not)
135
In general, do individuals being investigated for a criminal offence have a reasonable
expectation of privacy?
Yes
136
Is there a new tort of invasion of privacy?
Yes, may have now been developed by courts
137
Does the state have a positive duty to uphold absolute rights?
Yes
