Lecture 14: The European Convention of Human Rights (ECHR) Flashcards
What is the challenge in deciding which rights or interests to protect under the ECHR?
It is difficult to agree on which rights, liberties, and interests to protect and how, including civil and political rights, socio-economic and cultural rights, and collective rights.
What does ECHR mean?
European Convention on Human Rights
What does ECtHR mean?
European Court of Human Rights
What are the characteristics of international human rights treaties?
They are agreements between states to ‘respect’, ‘protect’, or ‘fulfil’ the rights of citizens, with individual complaints possible.
What is the focus of the ECHR?
The ECHR primarily focuses on civil and political rights, though additional rights are included in its Protocols.
What does Article 1 of the ECHR state about its reach?
Article 1 states that states “shall secure to everyone within their jurisdictions the rights and freedoms” in the convention.
How are claims made under the ECHR, and what are the outcomes?
Claims can be made by states or individuals. The European Court of Human Rights (ECtHR) can “afford just satisfaction”, and its decisions are enforced by the Committee of Ministers.
What does Article 1 of the ECHR require?
Article 1 requires states to “respect human rights,” ensuring that they uphold the rights set forth in the convention.
What right is protected under Article 2 of the ECHR?
Article 2 protects the right to life, ensuring that no one shall be deprived of their life except in certain exceptional circumstances.
What does Article 3 of the ECHR prohibit?
Article 3 prohibits torture, inhuman, or degrading treatment or punishment.
What right is protected under Article 4 of the ECHR?
Article 4 prohibits slavery and forced labour, ensuring individuals cannot be subjected to such practices.
What is guaranteed under Article 5 of the ECHR?
Article 5 guarantees the liberty and security of person, protecting individuals from arbitrary detention or imprisonment.
What does Article 6 of the ECHR ensure?
Article 6 ensures the right to a fair trial, including the right to a public hearing, to be informed of charges, and to have legal representation.
What does Article 7 of the ECHR prohibit?
Article 7 prohibits retrospective criminal punishment, ensuring no one is punished for an act that was not a crime at the time it was committed.
What right is protected under Article 8 of the ECHR?
Article 8 protects the right to respect for private and family life, including home and correspondence.
What does Article 9 of the ECHR protect?
Article 9 guarantees freedom of thought, conscience, and religion, including the freedom to manifest one’s religion or belief.
What right is safeguarded by Article 10 of the ECHR?
Article 10 protects freedom of expression, including the right to hold opinions and to receive and impart information.
What does Article 11 of the ECHR guarantee?
Article 11 guarantees the freedom of association, including the right to join or form trade unions and political parties.
What is the right provided by Article 12 of the ECHR?
Article 12 guarantees the right to marry and found a family, subject to national law.
What does Article 13 of the ECHR ensure?
Article 13 ensures the right to an effective remedy, allowing individuals to challenge violations of their rights.
What does Article 14 of the ECHR prohibit?
Article 14 prohibits discrimination in respect of the rights and freedoms set out in the convention, ensuring equality before the law.
What does Protocol 1, Article 1 of the ECHR protect?
Protocol 1, Article 1 protects the right to peaceful enjoyment of property.
What rights are provided in Protocol 1, Articles 2 and 3?
Protocol 1, Article 2 provides the right to education, and Article 3 provides the right to free elections.
What does Protocol 11 of the ECHR establish?
Protocol 11 establishes the right of individual petition, making it compulsory for states to allow individuals to apply to the ECtHR.
What does Protocol 12 of the ECHR prohibit?
Protocol 12 prohibits general discrimination, ensuring no one is discriminated against in the enjoyment of their rights.
What does Protocol 13 of the ECHR abolish?
Protocol 13 abolishes the death penalty, ensuring no one shall be sentenced to death.
What does Article 15 of the ECHR allow?
Article 15 allows derogation in times of emergency, permitting certain rights to be restricted temporarily during crises.
What does Article 16 of the ECHR limit?
Article 16 restricts political activity by aliens, prohibiting certain political activities by non-nationals.
What does Article 17 of the ECHR prohibit?
Article 17 prohibits the abuse of rights, ensuring that rights under the convention cannot be used to destroy or undermine democracy.
What does Article 18 of the ECHR limit?
Article 18 places limitations on the use of restrictions on rights, ensuring they are not used for purposes other than those allowed by the convention.
What do Articles 19-51 of the ECHR address?
Articles 19-51 focus on the functioning of the ECtHR, including the court’s establishment, jurisdiction, and procedure.
What does Article 34 of the ECHR allow?
Article 34 allows individual applications to the ECtHR, enabling individuals to bring cases before the court.
What is the role of the Secretary General under Article 52 of the ECHR?
Article 52 allows the Secretary General to conduct inquiries into issues related to the ECHR.
What are the two types of state obligations under the ECHR?
State obligations may be either positive (requiring action to protect rights) or negative (requiring the state to refrain from interfering with individual liberty).
Can you provide an example of a positive obligation under the ECHR?
An example of a positive obligation is the protection of privacy. The ECHR held that this may involve measures to secure respect for private life, even in relationships between individuals (e.g., X and Y v Netherlands (1986) 8 EHRR 235).
What are absolute rights under the ECHR?
Absolute rights are rights that must be protected and cannot be limited, such as Article 3, which guarantees freedom from torture.
What are limited rights under the ECHR?
Limited rights are rights that can be restricted under specific and finite circumstances, such as Article 5, the right to liberty. Limitations must comply with the circumstances specified in the article.
What are qualified rights under the ECHR?
Qualified rights require a balance between individual rights and the interests of others, such as Article 10, which guarantees freedom of expression.
What does derogation from the ECHR entail?
Derogation allows states to temporarily suspend certain Convention rights in times of “war or other public emergency threatening the life of the nation,” as outlined in Article 15. The right will not apply during such times.
What are examples of absolute Rights and how would we know?
Article 3 and 4 are examples of absolute rights.
The language used indicates that this is an absolute right, ‘no one’.
What does Article 3 of the ECHR protect?
Article 3 of the ECHR protects against torture, inhuman, or degrading treatment or punishment. It is an absolute right and cannot be limited under any circumstances.
What does Article 4 of the ECHR protect?
Article 4 of the ECHR protects individuals from being held in slavery or servitude. This is also an absolute right and cannot be limited.
What is an example of limited Rights and how would we know?
Article 5 is an example of a limited right.
The language used indicated a limitation on the right to liberty and the nature of that limitation.
What does Article 5 of the ECHR protect?
Article 5 of the ECHR protects the right to liberty and security of person. However, this right can be limited in certain circumstances, such as lawful detention after conviction by a competent court.
How does Article 5 allow for limitations on the right to liberty?
Article 5 allows limitations on the right to liberty, such as lawful detention after a conviction, and requires a procedure prescribed by law. It also ensures the detained person is brought promptly before a judge and trial occurs within a reasonable time or release pending trial.
What is an example of a qualified Right and how would we know?
Article 10 is an example of a qualified right.
The language used shows the content of the right and,
Conditional
qualifications,
The acceptable justifications
differ for each qualified right.
State must meet four
requirements to limit
such right
What does Article 10 of the ECHR guarantee?
Article 10 guarantees the right to freedom of expression, which includes the freedom to hold opinions and receive and impart information without interference by public authority and regardless of frontiers.
Can Article 10 of the ECHR be restricted?
Yes, Article 10 allows restrictions on freedom of expression for reasons such as national security, public safety, prevention of disorder or crime, protection of health or morals, protection of the reputation of others, or maintaining judicial authority. These restrictions must be prescribed by law and necessary in a democratic society.
What is derogation in the context of the ECHR?
Derogation allows states to decide not to be bound by certain Convention rights during “war or other public emergency threatening the life of the nation” (Article 15 ECHR). The rights will not apply during that time.
Can states derogate from any ECHR rights?
No, states cannot derogate from certain rights, including:
Article 2 - right to life (except in lawful acts of war)
Article 3 - prohibition of torture and inhuman treatment
Article 4(1) - prohibition of slavery
Article 7 - no punishment without law
What is the definition of “emergency” in derogation cases?
An “emergency” is an exceptional situation that affects the whole population, constitutes a threat to the community, and disrupts the organised life of the state (Lawless v Ireland (No.3) 1979-80).
Who decides if derogation is justified during an emergency?
The ECtHR recognises the state’s pre-eminence in determining an emergency (Aksoy v Turkey, 1997). However, UK courts emphasize that derogation should only be to the extent strictly required by the situation (A and others v Secretary of State for the Home Department [2004] UKHL 56).
Where can the object and purpose of the ECHR (or ECtHR) be found?
The object and purpose can be found in the interpretation of the main text of the Convention and, in the absence of clear wording, by looking at the Preamble (Golder v UK, A 18 (1975)).
What is the purpose of the ECHR (or ECtHR)?
The ECHR (or ECtHR) aims to guarantee practical and effective human rights, ensuring the protection of individual human rights and promoting the ideals and values of a democratic society (Airey v Ireland, 1979; Soering v UK, 1989; Kjeldsen v Denmark, 1979-80).
How does the ECtHR interpret the Convention?
The ECtHR interprets the Convention dynamically, as a “living instrument” that must be adapted to present-day conditions (Tyrer v UK, 1979-80; Goodwin v UK, 2002).
What is the role of effectiveness in the ECHR (or ECtHR) ?
The effectiveness of the ECHR (or ECtHR) underlies the positive obligations on states, requiring them to secure the rights and freedoms of individuals within their jurisdiction (Article 1 ECHR).
When does the ECtHR consider national laws in its interpretation?
The ECtHR considers national laws when there has been a change in policy or law on a particular issue, and when there is widespread or strong consensus, or a lack thereof, regarding that issue.
What case illustrates the importance of widespread or strong consensus in interpreting national laws?
Marckx v Belgium (1979-80) 2 ECHR 330 highlights the “great majority” view, and S and Marper v UK (2008) 48 EHRR 1169 shows a “strong consensus” against a practice.
What case shows the ECtHR’s approach when there’s evidence of a continuing international trend, but not full consensus?
Goodwin v UK (2002) 35 EHRR 1 shows the ECtHR’s consideration of a “majority” in Europe, but also acknowledges a “continuing international trend.”
Why does the ECtHR look to national standards?
The ECtHR is inspired by national standards and practices to avoid undermining state confidence in the system if the Convention doesn’t reflect those practices.
What does the ECtHR do when there is no clear international or European consensus on an issue?
When there is no clear consensus, the ECtHR may adopt the “lowest common denominator” approach.
What is the formal recognition of the subsidiarity principle in the ECHR?
Subsidiarity was initially a principle developed by the Court. In 2013, it was formally recognized in the Preamble to the ECHR through Protocol 15, Art. 1.
What does subsidiarity mean in the context of the ECHR?
Subsidiarity means that member states (MS) are responsible for securing the rights and freedoms in the ECHR, with some flexibility (“margin of appreciation”) to regulate and restrict ECHR rights according to their own laws and traditions.
What is the “margin of appreciation”?
The “margin of appreciation” is the leeway that member states have to regulate and restrict ECHR rights in line with their laws and traditions, especially concerning qualified rights and the necessity of those restrictions.
Is the “margin of appreciation” unlimited?
No, the “margin of appreciation” is not unlimited. Member states are subject to the Court’s supervision, and the Court determines the minimum level of protection that member states must guarantee. (Handyside v UK ECtHR 7 December 1979, para.19).
Who decides the minimum level of protection that member states must guarantee?
The Court decides the minimum level of protection that member states must guarantee, as outlined in Art. 19 (establishment of the Court) and Art. 32 (jurisdiction of the Court) of the ECHR.
Why is discretion allowed to member states under subsidiarity?
Discretion is allowed because member states, due to their direct and continuous contact with their country’s vital forces, are better positioned to assess the necessity of restrictions or penalties. (Handyside v UK 1979-80, 1 EHRR 737).
What does the principle of proportionality aim to achieve?
The principle of proportionality seeks a “fair balance” between the demands of the general interest of the community and the protection of the individual’s fundamental rights. (Soering v UK 1989, 11 EHRR 439).
What is the test of proportionality in the context of the ECHR?
There must be a reasonable relationship of proportionality between the means employed and the aim sought. A “fair balance” must be struck between the general interest of the community and the protection of individual rights. (Huten-Czapska v Poland 2006-VIII, 45 EHRR 52).
How does proportionality relate to state interference with rights?
Proportionality asks whether the state’s interference with the right results in a “disproportionate and excessive burden” on the individual. (Huten-Czapska v Poland).
Where is the principle of proportionality applied in the ECHR?
Proportionality is applied to qualified rights in Articles 8-11, introduced into Article 14, and also used to assess whether derogation under Article 15 is “strictly required by the exigencies of the situation.”
How does proportionality apply to other rights in the ECHR?
Proportionality is “inherent in the whole of the Convention” and is used to assess the application of various rights, particularly when balancing individual rights and public interests.
What is involved in proportionality?
Proportionality involves justifying state action, using suitable means to achieve aims, and weighing and balancing competing interests.
What must state action be in the context of proportionality?
State action must be justified, meaning it must be reasonable and necessary in achieving the aims.
What is the role of “suitable means” in proportionality?
The means used by the state to achieve its aims must be suitable, meaning they should be appropriate and effective.
How are competing interests handled in proportionality?
Competing interests are weighed and balanced to ensure that the interference with individual rights is not disproportionate to the general interest.
What does Article 10(2) of the ECHR say regarding restrictions on freedom of expression?
Article 10(2) allows restrictions on freedom of expression if they are prescribed by law and necessary in a democratic society, for reasons such as national security, public safety, prevention of disorder, protection of health, morals, or others’ rights.
What are the four key questions for proportionality analysis?
Has there been an interference with the right?
Was the interference ‘prescribed by law’?
Was interference in pursuit of a legitimate aim?
Was the interference necessary in a democratic society?
What does “prescribed by law” mean in proportionality analysis?
It means that the interference must be based on an identifiable domestic law that is accessible and sufficiently precise, as seen in Malone v UK (1985) and Sunday Times v UK (1979-80).
How do courts determine if the interference is in pursuit of a legitimate aim?
The permissible aims are broad, but the court may exceptionally not accept the stated aim as the true one, as seen in Moscow Branch of the Salvation Army v Russia (2007).
What is the key consideration for whether the interference is “necessary in a democratic society”?
The court will consider whether there is a “pressing social need” for the restriction, if it is proportionate to the aim, and if the reasons given are relevant and sufficient, as in Sunday Times v UK (1979).
What is a “friendly settlement” in the context of the ECtHR?
A “friendly settlement” is an agreement between the parties that resolves the case, and can be reached after the case is declared admissible under Article 39 of the ECHR.
What is “just satisfaction” in the context of the ECtHR?
“Just satisfaction” refers to financial compensation awarded by the Court if a violation of the Convention is found and internal law of the state allows only partial reparation, as stated in Article 41 of the ECHR.
