The European Convention on Human Rights Flashcards
What is the ECHR?
ECHR is separate from EU law
International treaty signed by 46 states – Russia ceased to be a contracting party in 2022
UK is bound as a matter of international law
The rights and freedoms were incorporated into UK law by the HRA 1998
Who can bring proceedings under the ECHR?
Can be brought:
(1) By one state against another
- Proceedings brought by another signatory state
(2) By an individual petitioning to the ECtHR
- Domestic remedies must have been exhausted first
- Petition must be made within four months of the final decision by the domestic courts
- Applicants must, personally and directly, be victims of violations of the ECHR, and must have suffered a significant disadvantage.
What are the possible remedies for a claim to the ECHR?
Remedies include compensation or requiring the state to change its domestic law
Individual decisions are only binding as a matter of international law under the ECHR and have no direct binding force in domestic law
ECtHR relies on state willingness to accept its judgments
What are the 3 broad categories of rights under the ECHR?
- Absolute – can never be interfered with
- Limited – can be limited in clearly defined situations
- Qualified – may be interfered with to protect an important general interest or the rights of others
Which Articles are absolute rights?
Article 2 (right to life)
Article 3 (freedom from torture, inhuman and degrading treatment)
Article 4 (freedom from slavery)
Article 6 (fair trial)
Article 7 (punishment according to existing law)
Article 9 (freedom of thought)
Article 12 (right to marry)
Which Articles are limited rights?
Article 5 (limited by exceptions re lawful arrest and detention)
Article 6 (limited in relation to trial in public)
Which Articles are qualified rights?
Article 8 (respect for private and family life)
Article 9 (freedom in worship, teaching, practice or observation)
Article 10 (freedom of expression)
Article 11 (freedom of assembly and association)
Article 1 of Protocol 1 (right to peaceful enjoyment of possessions)
If a Convention right is qualified in any way, there are various requirements to the qualifications. What are these (in overview only)?
Any qualifications must be express – must be contained within the convention itself
Any restrictions must be prescribed by law, have a legitimate aim and be necessary in a democratic society
What does it mean for a qualification to be ‘prescribed by law?’
It means that state law must provide for the particular qualification
What does it mean for a qualification to have ‘a legitimate aim?’
All qualifications must be justified by reference to the aims specified for each article right
Convention sets out various legitimate aims (reasons a state could interfere with qualified rights):
- National security; public safety and economic well-being
- Prevention of disorder or crime
- Protection of health or morals
- Protection of rights or freedoms of others
- Article 10 (freedom of expression) - Prevention or disclosure of information received in confidence
- Maintaining the authority and impartiality of the judiciary
What does it mean for a qualification to be ‘necessary in a democratic society?’
Must be a pressing social need for the restriction and it must be proportionate (state cannot go further than necessary in trying to achieve its aim)
Proportionality test – relevant to necessary in a democratic society
- Objective of the interference must be sufficiently important to justify that interference
- Objective of the interference must be rationally connected to the objective
- Was there a less intrusive measure to achieve the objective?
- Whether a fair balance has been struck between rights of the individual and the interests of the community
Explain Article 2 - right to life
Absolute right
Prohibits the state from taking life
Places a positive duty on the state to protect life
No derogation possible, except where lives are lost because of lawful acts of war
Are there any exceptions to Article 2?
Article 2(2) exception – permits the use of force that results in deprivation of life if certain conditions met + use of force is no more than absolutely necessary:
- Defence from unlawful violence to effect a lawful arrest
- Prevent the escape of a detained person
- Quelling a riot
Blanket ban on assisted suicide is a necessary and proportionate interference with Article 8 but relates to Article 2
Recent NI COA case upheld a judgment that provisions in a NI Act grant immunity from prosecution for Troubles-era crimes that breached Articles 2 and 3
Explain Article 3 - freedom from torture, inhuman and degrading treatment
Absolute right, with no limitations or exceptions
Torture = ‘deliberate inhuman treatment causing very serious and cruel suffering’
Inhuman treatment - ‘treatment or punishment likely to cause actual bodily injury or intense physical and mental suffering’
Violation of Article 2 and or 3 to deport, remove or extradite someone to a country where there was a real risk they might be killed, tortured etc
Explain Article 4 - freedom from slavery
Absolute right
Article 4(3) exceptions
- Work ordinarily done by prisoners as part of their sentence
- Compulsory military service and work required, in an emergency
Forced labour occurs where someone is forced to work against their will and an essential element is exploitation
Explain Article 5 - right to liberty and security
Limited right
Aims to ensure that no one is deprived of their liberty in an arbitrary fashion
Right to liberty can be lawfully interfered with in six ways (main ones below)
- Arrest and detention by the police
- Imprisonment after conviction
- Detention in the context of asylum and deportation
Detention must be in good faith, necessary, only for a length of time required for the purpose pursued
Detention must be properly recorded and lawful
Explain Article 6 - right to a fair trial
Absolute right
Individuals should have:
- Access to the court
- Independent and impartial court – no bias towards prosecution
- Trial should be in public, and decision should be made public
- Trial should be conducted within a reasonable timeframe
- Trial should be conducted fairly
Presumption of innocence until proven guilty for criminal charges
Minimum rights for those charged with a criminal offence:
- Right to be informed of nature and cause of accusation
- Must be given adequate time to prepare a defence
- Right to legal representation
- Right to call and cross-examine witnesses
Explain Article 8 – Right to respect for private and family life
Guarantees respect for a person’s:
- Private life
- Family life
- Home
- Correspondence
Issues around this arise in cases relating to deportation and extradition
Explain Article 9 – Freedom of thought, conscience and religion
Absolute right in terms of thought
However, right to manifest religion or belief is a qualified right
- Wearing something discreetly with a work uniform to signify religion may be OK, provided there is no issue of health + safety
Explain Article 10 – Freedom of expression
Qualified right
Freedom to hold opinions and to receive and impart information and ideas without interference by public authority
Interference is permitted in some circumstances, such as where issues of national security are concerned or in relation to hate speech and in relation to contempt of court
- Views which undermine others (racism) may be interfered with, as they are incompatible with the values underpinning the ECHR (tolerance, respect, non-discrimination)
Explain Article 11 – Freedom of assembly and association
Peaceful assembly is protected, but violent protests are not
Ensures a state cannot ban opposition political parties and movements which it doesn’t approve of
What are some of the other Articles of note?
Article 12 – right to marry; no requirement for a state to accept same-sex marriage
Article 13 – right to an effective remedy
Article 14 – protection from discrimination
Protocol rights were signed up to after original convention was drafted
- Article 1 of First Protocol – protection of property (peaceful enjoyment of possessions and personal property)
- Article 2 of First Protocol – the right to education
- Article 3 of First Protocol – right to free elections
- Article 1 of Protocol 13 – abolition of the death penalty
