Human Rights and the ECHR

Question 1

Name the five origins of human rights

Answer 1

1. The common law – you had the right to do whatever was not specifically prohibited – negative approach (Dicey’s approach – a residual approach to rights).
2. legislation
3. EU law (Charter of Fundamental Rights)
4. International Law – United Kingdom required to uphold, but only enforceable in international law courts unless Parliament has legislated (dualist system).
5. The ECHR

Question 2

Name three ways rights can be distinguished, develop where possible.

Answer 2

1. Absolute and qualified
2. Political and Civil - argued that these are better enforced by Courts
3. Economic and Social - argued that these are better enforced politically

Question 3

What is the main human rights document internationally?

Answer 3

The Charter of the United Nations (UN Charter) 1945

Question 4

What was the point of the Universal Declaration of Human Rights 1948? Name the two human rights instruments that followed.

Answer 4

Attempting to set out a preliminary of human rights that the members could agree on. This would then be further set out and made legal by further instruments. There was no agreement after this until 1966 because of the Cold war. By 1966 it was stated that human rights were needed because of decolonisation.

1. International Covenant on Civil and Political Rights 1966 - supported by the West
2. International Covenant on Economic, Social and Cultural Rights 1966 - supported by the East

Question 5

When was the ECHR adopted? When did it come into force?

Answer 5

1. 1950

2. 1953

Question 6

Briefly talk about the judgments of the European Court of Human Rights.

Answer 6

Contracting States are obliged to abide by the final judgment of the European Court of Human Rights. When Member States refuse to abide it becomes an outstanding decision. The formal oversight of implementation is conducted by the Committee of Standards of the Council of Europe. The consequence for non-compliance is expulsion from the Council of Europe.

Question 7

How do you join the ECHR? - use legislation

Answer 7

Article 59 ECHR: Signature and Ratification
1. This Convention shall be open to the signature of the members of the Council of Europe. It shall be ratified. Ratifications shall be deposited with the Secretary General of the Council of Europe.

Question 8

How do you leave the ECHR? - use legislation

Answer 8

Article 58 ECHR: Denunciation

1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.
2. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.

Question 9

What is Article 2 ECHR?

Answer 9

Right to life

Question 10

What is Article 3 ECHR?

Answer 10

Prohibition of torture and degrading treatment

Question 11

What is Article 4 ECHR?

Answer 11

Prohibition of slavery and forced labour

Question 12

What is Article 5 ECHR?

Answer 12

Right to liberty and security

Question 13

What is Article 6 ECHR?

Answer 13

Right to a fair trial

Question 14

What is Article 7 ECHR?

Answer 14

No punishment without law

Question 15

What is Article 8 ECHR?

Answer 15

Right to respect for private and family life

Question 16

What is Article 9 ECHR?

Answer 16

Freedom of thought, conscience and religion

Question 17

What is Article 10 ECHR?

Answer 17

Freedom of Expression

Question 18

What is Article 11 ECHR?

Answer 18

Freedom of assembly and association

Question 19

What is Article 12 ECHR?

Answer 19

Right to marry

Question 20

What is Article 14 ECHR?

Answer 20

Prohibition of discrimination

Question 21

What is Article 1 Protocol 1 ECHR?

Answer 21

Protection of Property

Question 22

What is Article 2 Protocol 1 ECHR?

Answer 22

Right to Education

Question 23

What is Article 3 Protocol 1 ECHR?

Answer 23

Right to Free Elections

Question 24

What is Article 1 Protocol 13 ECHR?

Answer 24

Abolition of the death penalty

Question 25

The ECHR has ___ contracting States and covers over ___ _____ people.

Answer 25

47, 800 million

Question 26

What is Article 1 ECHR?

Answer 26

Obligation to respect human rights:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in…this Convention.

Question 27

What is Article 15 ECHR?

Answer 27

Derogation in time of emergency
1 In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

Question 28

Explain the living instrument doctrine using case law and academic opinion

Answer 28

This is a principle of evolutive interpretation: ‘the Convention is a living instrument which…must be interpreted in the light of present-day conditions’ ‘Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field’. (Tyrer v UK (1979-1980)).
It is linked to the principle of effectiveness of the ECHR – i.e. The ECtHR seeks to give the ECHR ‘the fullest weight and effect consistent with the language used and with the rest of the text and in such a a way that every part of it can be given a meaning’ (Merrills, The Development of International Law by the European Court of Human Rights, 1988).

Question 29

What case reaffirmed that Article 3 ECHR is an absolute right?

Answer 29

Ireland v UK (1979-80)

Question 30

What three characteristics does Mavronicola assign to absolute rights?

Answer 30

1. no in-built exceptions
2. no derogation allowed
3. protects everyone irrespective of conduct

Question 31

Summarise the case of Gäfgen v Germany (2011) and analyse the decision.

Answer 31

Mr Gäfgen kidnapped an 11-year-old boy and demanded substantial ransom money from the boy’s parents. Three days after the kidnapping Mr Gäfgen received the ransom and was arrested by authorities. Unbeknownst to the authorities at the time of his capture, Gäfgen had suffocated the boy and disposed of his body. The police officers involved, thinking that the boy may still be alive and facing life-endangering conditions and great suffering in an unknown location, threatened Gäfgen with torture with the aim of finding the boy, at which point Gäfgen confessed to the killing, ten minutes after the threat of torture.
In a landmark judgment on the case, the European Court of Human Rights (Grand chamber) affirmed that the police officers’ actions were in breach of Article 3 ECHR and therefore conclusively unlawful. It stated that: ‘The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of art.3.’
The Court held that Article 3 does not cover all ill-treatment but for the ill-treatment to fall within its scope there must be severe. In this case the threats lasted approximately ten minutes, considerable fear was caused, but no physical harm was proven. The Court held this was enough to fall under Article 3 but not as torture. Therefore, the Court split Article 3 up into two categories: torture and cruel, inhumane and degrading treatment. It was also held that Article 3’s philosophical basis does not allow for any exceptions or justifying factors or balancing interests.
I think Gäfgen was decided correctly. Torture is an absolute right and should never be acceptable. The horrific act of torture is that awful that even threats of it should not be acceptable. Furthermore I believe there isn’t any difference between threats of it and happening, the same feelings are there and it aims to achieve the same outcome. Another argument in favour is the rule of law – consistency of treatment.

Question 32

Name three absolute rights

Answer 32

1. Article 3
2. Article 4
3. Article 7

Question 33

Describe qualified rights

Answer 33

The term ‘qualified rights’ (also ‘limited’ or ‘limitable’ rights) can be used to describe rights which can be subject to lawful interference.
Lawful interference: An action which infringes the right but is found: lawful under the terms of the right itself (e.g. Article 10 (2) ECHR), or lawful through derogation (Article 15 ECHR)
There is a general formula: where the limits are by law and provided the limit is necessary in a democratic society.

Question 34

Explain the test when deciding whether something is unlawfully infringing a qualified right. Name six Articles this test is applicable to.

Answer 34

1. Is there an interference with the right?
2. Is the measure prescribed by law?
3. The proportionality test
   Applicable to Article 6, Article 8(2); Article 9(2); Article 10(2); Article 11(2), Article 14

Question 35

What is the proportionality test for the ECHR?

Answer 35

(1) does the measure pursue a legitimate aim?
(2) is the measure rationally connected to the legitimate aim?
(3) does the measure constitute the minimum interference necessary to attain the legitimate aim?
(4) has a fair balance been struck between the rights of the individual and interests of the community?

Question 36

Stricter tests have been applied to which two qualified rights? Explain

Answer 36

Article 2(2) and Article 15 - they need to be strictly necessary

Question 37

Explain the Margin of Appreciation

Answer 37

The doctrine depends on whether there is consensus amongst the Council of Europe, of if there is not – then the State will have a degree of discretion. The doctrine is premised on the idea that national authorities will sometimes be in a better position than the ECtHR to determine which measures are appropriate in the national context, because of their ‘direct and continuous contact with the vital forces of their countries’ (Buckley v UK (1996).
The ECtHR emphasises that MoA goes hand in hand with its supervision of State action for compatibility with ECHR.
Nonetheless, the doctrine entails that ECtHR may exhibit some restraint in its assessment and accept that there is a range of ECHR-compatible options to deal with a national issue.
Thus, the MoA allows for a space of disagreement amongst States subject to the ECHR as to the appropriate way to protect rights under the ECHR.
It is applicable primarily in relation to the proportionality test.

Question 38

Give an example of where the margin of appreciation has been applied.

Answer 38

1. Handyside v UK (1979-1980)

Question 39

What are the exceptions to compliance with Article 2 (given within the Article).

Answer 39

deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
A in defence of any person from unlawful violence;
B in order to effect a lawful arrest or to prevent the escape ofa person lawfully detained;
C in action lawfully taken for the purpose of quelling a riot or insurrection.

Question 40

Define negative and positive obligations. Which one are most rights?

Answer 40

Negative obligation: duty to refrain from certain action.
Positive obligations: duties to take action.
Most rights encompass both negative and positive obligations.

Question 41

Give two examples of positive obligations arising under the ECHR stating the Article they involve.

Answer 41

1. O’Keeffe v Ireland (2014) (Article 3): duty to protect children from and provide redress for sexual abuse occurring in National Schools
   Osman v UK (2000) (Article 2): in some circumstances there is a duty to take reasonable steps to protect individuals from imminent risk to their life

Question 42

Name three positive obligations that arise from Article 2 and 3 ECHR

Answer 42

1. investigative duties
2. duties to enshrine and enforce relevant laws to protect the right
3. duties to take operational measures to protect specific persons facing imminent risk of attack

Question 43

Talk about positive obligations in rights other than Article 2 and 3.

Answer 43

Positive obligations under the rest of the ECHR rights comprise less stringent duties and are subject to a more fluid reasonableness assessment and can be displaced through the proportionality test.

Question 44

The UK and the ECHR have a history. Describe briefly what happened in each of the following years: pre 1950, 1950, 1951, 1953, 1966, 1998, 2000.

Answer 44

Pre 1950 - UK participation in drafting of the ECHR
1950 - UK signs ECHR
1951 - UK ratifies ECHR - using royal prerogative
1953 - ECHR comes into force
1966 - UK grants right of individual petition – individuals from UK can go to Strasbourg
1998 - UK passes Human Rights Act 1998 “incorporating” the ECHR into domestic law
2000 - Human Rights Act 1998 comes into force

Question 45

What are human rights? Are they a good tool towards achieving accountability and/or empowerment? Why/why not?

Answer 45

Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death. They apply regardless of where you are from, what you believe or how you choose to live your life. They can never be taken away, although they can sometimes be restricted. They exist by virtue of being human, there is no requirement, and they are entitlements that you can assert to your benefit.
Human rights are good for empowerment. The rights empower you – for example, if you disagree with a decision you can challenge it in Court. The Courts are better for challenging these decisions because they have a neutral political stance.
Human rights allow the courts to analyse, and make the best decisions. They strike a balance between the interests of the public and the interests of the legislature.
Human rights coupled with proportionality achieves accountability. It makes decision-makers explain themselves unlike Wednesbury reasonableness.
Arguments that human rights are bad are often because they interrupt business and politics and are used by criminals.

Question 46

Do you think the convention covers all key human rights?

Answer 46

In theory, the ECHR does not cover all key human rights. There are three generations (types) of human rights: 1. Liberty – civil and political rights, which are negatively constructed and largely protect the individual against the state; 2. Legality – socio-economic rights which are supposed to guarantee equal conditions and which are positively constructed; and 3. Fraternity: collective/developmental rights which deal with the rights of people and groups against the state. The ECHR is largely concerned with the first generation of rights – civil and political rights – and has little to say on socio-economic rights.