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Con & Ad > The European Convention on Human Rights > Flashcards

The European Convention on Human Rights Flashcards

1
Q

What are the two ways in which proceedings may commence regarding the ECHR?

A
  1. State applications (1 state to another)
  2. Individual petitions to the ECtHR
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2
Q

What are the requirements for individual petitions to the ECtHR?

A

Must be shown that an domestic remedies that exist have been exhausted

Petition must be made within 6 months of final decision in domestic court

Applications must personally and directly be victims of violations of the ECHR and must have suffered a significant disadvantage

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3
Q

What are the remedies available for an individual petitioning to the ECtHR?

A

Compensation

Require state to change its law - however, no binding force on domestic law

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4
Q

What are the two stages in cases brought before the ECtHR?

A

Admissibility stage and merits stage

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5
Q

Is there a right of appeal against a case deemed inadmissible?

A

No

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6
Q

What are the three types of convention rights?

A

Absolute, limited and qualified rights

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7
Q

What are absolute rights under the ECHR?

A

Rights which can never be interfered with BY THE STATE in any circumstances

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8
Q

What are limited rights under the ECHR?

A

Rights which can be limited in clearly defined and finite situations

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9
Q

What are qualified rights under the ECHR?

A

Rights that require a balance between the rights of the individual and wider public interest - may be interfered with to protect and important general interest or the rights of others

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10
Q

Which rights are absolute?

A

2, 3, 4, 6, 7, 9, 12

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11
Q

Which rights are limited?

A

5, 6

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12
Q

Which rights are qualified?

A

8, 9, 10, 11, Article of Protocol 1

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13
Q

What are some absolute rights under the ECHR?

A

Right to life (Article 2)
Freedom from torture, inhuman and degrading treatment (Article 3)
Freedom from slavery (Article 4)
Fair trial (Article 6)

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14
Q

What are some limited rights under the ECHR?

A

Liberty and security of the person (Article 5)

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15
Q

When can a restriction on a qualified right be relied upon?

A

It if is prescribed by law, has a legitimate aim and is necessary in a democratic society

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16
Q

What are examples of legitimate aims which are frequently specified in the Convention?

A
  1. Interests of national security, public safety or the economic well-being of the country
  2. Prevention of disorder or crim
  3. Protection of health or morals
  4. Protection of the rights or freedoms of others
  5. Prevention or disclosure of information received in confidence
  6. Maintaining the authority and impartiality of the judiciary
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17
Q

What does it mean to say that qualifications under ECHR must be “necessary in a democratic society”?

A

There must be a “pressing social need” and the interference with the ECHR right must be proportionate

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18
Q

Under Article 15 of the ECHR, when may a state derogate from part of the ECHR?

A

In time of war or other public emergency threatening the life of the nation

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19
Q

What are the key protections under Article 2?

A

Prohibits state from taking life

Places positive duty on state to protect life

20
Q

When is derogation from Article 2 Right to life possible?

A

In respect of deaths resulting from lawful acts of war

21
Q

What two conditions must be met under Article 2(2) in order for the use of force that results in deprivation of life to be permitted?

A
  1. Must be no more than absolutely necessary
  2. Must be in pursuit of:
    - Defence of any person from unlawful violence (and/or)
    - Effect a lawful arrest / prevent escape of person lawfully detained (and/or)
    - Use in action lawfully taken for purpose of lawfully quelling a riot or insurrection
22
Q

What is the procedural element of Article 2?

A

The duty on the state to investigate

23
Q

Can the state derogate Article 3 under Article 15?

A

No

24
Q

For the purposes of Article 3, what is the definition of torture?

A

Deliberate inhuman treatment causing very serious and cruel suffering

25
Q

For the purposes of Article 3, what is the definition of inhuman treatment?

A

Treatment or punishment likely to cause actual bodily injury or intense physical and mental suffering

26
Q

What is the position if the deportation of an individual to another country will result in them facing the death penalty?

A

This is unlawful as it is in contravention to Article 2 rights

27
Q

What is the position if the deportation of an individual to another country will not result in their death but may lead to them suffering other forms of ill-treatment?

A

This is unlawful as it is in contravention to Article 3 rights

28
Q

What are the key protections from Article 4?

A

No one shall be held in slavery and servitude

No one shall be required to perform forced or compulsory labour

29
Q

What 4 types of work set out in Article 4(3) do not constitute forced or compulsory labour?

A
  1. Work ordinarily done by convicted prisoners as part of their sentence
  2. Compulsory military service
  3. Work required in an emergency or calamity threatening the life or well-being of the
    community
  4. Any work or service that forms part of normal civic obligations (e.g. jury service)
30
Q

What constitutes forced labour?

A

Work or service that an individual is forced to do against their will

31
Q

What are the key protections of Article 5?

A

Ensuring that no one is deprived of their liberty in an arbitrary fashion

32
Q

What are the 6 situations listed in Article 5(1)(a)-(f) in which the state may lawfully be deprived of their liberty without a violation of the basic right contained with Article 5?

A
  1. Prison following conviction
  2. Arrest / detention to ensure compliance with court order
  3. Arrest / detention on suspicion of committing a crime
  4. Minor detained for purposes of educational supervision
  5. Detention due to mental illness
  6. Detention in connection with asylum, deportation or extradition
33
Q

What conditions, as defined in Pretty v UK, amount to degrading treatment under Article 5?

A

Treatment which humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity’

34
Q

Under Article 6(1), in what situations is it permitted for the press / public to be excluded from all or part of a trial?

A
  1. Where the exclusion is required in interests of morality, public order or national security
  2. Where the exclusion is required in the interests of juveniles or the protection of the private life of the parties, or
  3. Where there are special circumstances that, in the opinion of the court, would prejudice the interests of justice
35
Q

What are the key rights under Article 6 Right to a fair trial?

A

Access to the court
Independent and impartial court
Trial in public
Trial within a reasonable time
Trial conducted fairly

Right to be informed, adequate time to prepare defence, right to legal representation

36
Q

Do strict liability offences conflict with Article 6 rights?

A

No - strict liability offences are permitted under Article 6 provided that they are reasonable, as per Salabiaku v France

37
Q

What constitutes a “reasonable time” for a trial to be held under Article 6(1)?

A

Should not be held in custody for longer than 6 months

38
Q

What are the key rights under Article 8?

A

Private life
Family life
Home
Correspondence

39
Q

What are the key rights under Article 9? What kind of right is this?

A

Right to manifest religion or belief

Qualified right

40
Q

What are the key rights under Article 10 Freedom of expression?

A

Freedom to hold opinions and receive and impart information and ideas without interference by public authority

41
Q

What are the key rights under Article 11?

A

Freedom of assembly and association

Must constitute peaceful assembly

No protection of violent behaviour

Ensures that a state cannot ban opposition political parties and movements of which it does not approve

42
Q

When can a government lawfully interfere with a qualified right?

A

When the interference is prescribed by law, has a legitimate aim and is necessary in a democratic society

43
Q

What is the purpose of the doctrine or proportionality?

A

It ensures there is a fair balance between pursuing a legitimate aim and the protection of Convention rights

44
Q

When is the proportionality test used?

A

By the courts, when states are seeking to justify interfering with a qualified Convention right

45
Q

What are the 4 parts of the proportionality test?

A
  1. Whether the objective of the measure complained of is sufficiently important to justify the limitation of a fundamental right
  2. Whether the measure is rationally connected to the objective
  3. Whether a less intrusive measure could have been used
  4. Whether a fair balance has been struck between the rights of the individual and the interests of the community
46
Q

When can Article 8 be engaged, regarding deportation, removal and extradition?

A

When the main issue in question is the consequence for the person’s mental or physical health of removal to the receiving country - rather than the issue of severance of the family and social ties that the applicant enjoyed in the expelling country

47
Q

Are judgments of the ECtHR binding on the UK?

A

Yes - as a matter of international law

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