The ECHR (L28)

Question 1

What is the scope of the ECHR; what is protected?

Answer 1

Various rights and freedoms. Various prohibitions.

No torture and inhuman or degrading treatment or punishment (A3).
No slavery and forced labour (A4).
No punishment without law (A7).
No discrimination in the enjoyment of the rights and freedoms secured by the Convention (A14).

Question 2

What is A9 of the ECHR, and what is it an example of?

Answer 2

Freedom of thought, conscience and religion.
“Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

A QUALIFIED RIGHT.

Question 3

What is A3 of the ECHR, and what is it an example of?

Answer 3

Prohibition of torture.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

AN ABSOLUTE RIGHT.

Question 4

A15 of the ECHR contains derogations… What is 15.1?

Answer 4

“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.”

Question 5

A15.2 of the ECHR lists Articles from which derogation is NOT allowed… What does it say?

Answer 5

“No derogation from Article 2 [right to life], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [no torture or inhuman/degrading treatment], 4 (paragraph 1) [no slavery or servitude] and 7 [no punishment without law] shall be made under this provision.

Question 6

Who may bring a case to the ECtHR?

Answer 6

Cases can be brought against one contracting state by another (A33) or by “individual petition” (A44).

HOWEVER, individuals must exhaust domestic remedies before they can apply to the ECtHR (A35).

Question 7

Are ECtHR cases binding?

Answer 7

States are bound by ECtHR judgments in cases to which they are a party (A46).

Question 8

Which Article states that the ECtHR may award financial compensation?

Answer 8

A41.

Question 9

How is the ECHR to be interpreted?

Answer 9

Convention rights are set out in very general terms.
Convention rights allow for a margin of appreciation.

The convention is to be interpreted…
- As a “living instrument”.
- And according to its “object and purpose”.

Question 10

What does the case of Ireland v The United Kingdom (1978) illustrate?

Answer 10

Finds breach of Article 3. Illustrates both absolute and non-derogable rights.

Question 11

What was the issue in the case of Ireland v The United Kingdom (1978)?

Answer 11

Claim brought by Ireland to court on behalf of several men from Northern Ireland who had been detained by security forces and subjected to extreme interrogation methods (the so-called “five techniques”).

Did these methods breach A3 right against “torture and inhuman and degrading treatment”?

Question 12

What was the decision in the case of Ireland v The United Kingdom (1978)?

Answer 12

ECtHR finds there was inhuman and degrading treatment, but not torture (in 2021, UKSC finds that this was torture).

THERE IS NO SCOPE HERE FOR QUALIFICATION OR DEROGATION FROM A3.

Question 13

What does the case of Dudgeon v The United Kingdom (1981) illustrate?

Answer 13

Finds breach of Article 8. Illustrates “margin of appreciation” and proportionality analysis of qualified Convention rights.

Question 14

What was the issue in the case of Dudgeon v The United Kingdom (1981)?

Answer 14

A8 allows the right to be qualified “… in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

UK relies on “margin of appreciation” and argues this law is “necessary” for the “protection of morals” in NI.
Argues morals are different and more conservative in NI.

Question 15

What was the decision in the case of Dudgeon v The United Kingdom (1981)?

Answer 15

ECtHR says this is a breach of A8:
“Margin of appreciation” varies with the case: it must be assessed by the Court in light of the severity of the interference with the Convention right (not just the aim of the interference); the margin of appreciation is not unlimited.

“Necessary” in this context implies the existence of a “pressing social need” for the interference in question. There was no such need here that could justify the interference with Dudgeons A8 right.

Question 16

Why was there a wide margin of appreciation in the case of A, B and C v Ireland (2010)?

Answer 16

“The acute sensitivity of the moral and ethical issues raised by the question of abortion”.

Even though Ireland’s laws were more restrictive than the European norm, there was no legal or scientific consensus on when human life begins (and therefore the Court should not second guess how contracting states weigh competing values and interests at stake.

Question 17

What does the case of Tyler v The United Kingdom (1978) illustrate?

Answer 17

Finds breach of Article 3. Illustrates the “living instrument” doctrine of interpretation.

Question 18

What was the issue in the case of Tyler v The United Kingdom (1978)?

Answer 18

Is this a violation of A3, even though corporal punishment was prevalent throughout Europe at the time the Convention was drafted and the UK signed up?

Question 19

What was the decision in the case of Tyler v The United Kingdom (1978)?

Answer 19

ECtHR finds a violation, based on “living instrument” doctrine:
“The Court must also recall that the Convention is a living instrument, which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the 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.”

Question 20

What does the case of Soering v The United Kingdom (1989) illustrate?

Answer 20

Finds breach of Article 3. Illustrates the “object and purpose” doctrine of interpretation.

Question 21

What was the issue in the case of Soering v The United Kingdom (1989)?

Answer 21

Does a state breach A3 if they deport someone to another country where that person might be executed?

Question 22

What was the decision in the case of Soering v The United Kingdom (1989)?

Answer 22

ECtHR says yes, depending on the circumstances. Why?
“… the object and purpose of the Convention, as an instrument for the protection of individual human beings, require that its provision be interpreted and applied so as to make its safeguards practical and effective.”

In this case, there was a breach of A3 because of the circumstances (length of ‘death row’; poor prison conditions; “ever present and mounting anguish of awaiting execution of the death penalty”; Soering’s age and mental state at the time of the offence).

Question 23

What does the case of Smith and Grady v The United Kingdom (1999) illustrate?

Answer 23

Finds breach of Article 8. Illustrates proportionality analysis and limitations of UK common law rights.

Question 24

What was the issue in the case of Smith and Grady v The United Kingdom (1999)?

Answer 24

Both applicants were discharged from the RAF on the sole ground that they are gay/lesbian, pursuant to Gov policy.

Can this policy be justified as necessary in a democratic society?

UK Gov argues that this policy is justified by “a practical assessment of the implications of homosexuality for fighting power.”

Question 25

What was the decision in the case of Smith and Grady v The United Kingdom (1999)?

Answer 25

Strasbourg Court says [“a practical assessment of the implications of homosexuality for fighting power”] is not a sound justification.