ECHR

Question 1

What as the effect of the HRA 1998?

Answer 1

It incorporated the ECHR rights into UK legislation.

The effect is that breaches of such rights can be brought before UK domestic courts.

Question 2

What are the two types of proceedings which can be brought before the ECtHR?

Answer 2

State applicatios; and

Individual petitions.

Question 2

What are state applications?

Answer 2

If a state is in violation of ECHR, proceedings can be brought against it by another signatory state.

Question 3

What are individual petitions?

Answer 3

Individuals alleging their convention rights have been breached as a result of domestic law can start their own proceedings against the state before the ECtHR.

To do so, it must be shown that all domestic remedies in existence have been exhausted.

Applicants must be victims of violations of the ECHR personally and directly, and must have suffered a significant disadvantage.

Question 4

Is there a time limit on brining an individual petition before the ECtHR?

Answer 4

Yes.

Proceedings must be brought within 4 months of the final decision (in the UK this would usually be the decision of the highest UK court having jurisdiction).

Question 5

Are decision by the ECtHR automatically binding on convention states?

Answer 5

No.

Process relies on willingness of its members to enforce judgments.

Question 6

What are the two main stages of proceedings before the ECtHR?

Answer 6

The admissibility stage; and

The merits stage.

Question 7

Summarise the process of brining a claim before the ECtHR.

Answer 7

• single judge will declare claim inadmissible if obvious from the start. No right to appeal in these situations.
• Cases covering well established case law of the court are allocated to three judge committee, giving final decision r judgment.
• Other cases are heard by chamber of judges, giving judgment by majority. Chamber’s judgment becomes final after three months. During this time the applicant or state party can ask for case to be referred to the grand chamber for consideration.
• Grand chamber reconsiders case and holds public hearing if necessary. Their judgment is final.

Question 7

What re the three types of convention rights?

Answer 7

1) Abosolute rights;

2) Qualified rights;

3) Limited rights.

Question 8

What is the purpose of the committee of Ministers of the Council of Europe?

Answer 8

They are responsible for ensuring states comply with ECtHR judgments.

Question 9

What are absolute rights?

Answer 9

Rights which can’t be interfered with in any circumstances whatsoever.

States must uphold them at all times.

Question 10

What are limited rights?

Answer 10

Rights which can only be limited within the scope provided in the section which gives the right.

Question 11

What are qualified rights?

Answer 11

Rights which can be limited by the state if necessary to meet a legitimate aim provided in the particular section.

Question 12

How do you tell the difference between limited and absolute rights?

Answer 12

Rights that list exceptions that help to define the right - these are absolute rights as any conduct falling outside the expiation does not constitute interference with the right.

Rights which list specific and finite situations when they can be interfered with are limited rights as there are set situations where interference is permissible.

Question 13

What are the four absolute rights under the convention?

Answer 13

1) Right to life;

2) Prohibition of torture;

3) Prohibition of slavery;

4) Prohibition of retrospective criminal offences.

Question 14

What are the two limited rights under the convention?

Answer 14

1) Right to liberty;

2) Right to a fair trial.

Question 14

How is it determined whether interference with a qualified right is justified?

Answer 14

Only restrictions expressed in ECHR and used for the purpose they have been prescribed are justified.

The restriction can only be relied upon if:

1) Prescribed by law;
2) Has a legitimate aim;
3) Is necessary in a democratic society; and
4) Is not applied in a discriminatory fashion.

Question 15

What does it mean interference with a qualified right must be prescribed by law?

Answer 15

The state’s law must permit the type of interference (eg phone tapping would not be permitted in the UK).

The law can be written or unwritten, but must be accessible and sufficiently precise to enable citizen to regulate their conduct.

Question 15

List the legitimate aims which make interference with a qualified right potentially justifiable.

Answer 15

1) Its in the interests of national security.

2) Prevention of disorder or crime.

3) Protection of health or morals;

4) Protections of rights and freedoms of others;

5) Prevention or disclosure of information received in confidence.

6) Maintaining authority and impartiality of the judiciary.

Question 16

What does it means that interference of the qualified right must be necessary in a democratic society?

Answer 16

1) There must be a ‘pressing social need’;

2) The interference must be proportionate.

Question 17

What is the margin of appreciation?

Answer 17

Where a member state legitimately reaches a different conclusion on a particular issue, ECtHR respects judgment of member state as to what the public interest requires.

Effectively, it is some leeway left up to the member state to determine what is a necessity.

Question 18

What does it mean that the qualities of a dmecoratis state include toerlance of minority opinions and lifestyles?

Answer 18

This means the fact the majority in a state opposes something (eg homosexuality) does not mean homosexuality can be criminalised.

Question 19

Explain the article 15 provision of derogation.

Answer 19

A state may derogate from part of the ECHR in time of war or public emergency threatening the life of a nation.

Question 20

Which article rights can never be subject to derogation?

Answer 20

Article 2 (right to life);

Article 3( torture);

Article 4 (slavery); and

Article 7 (retrospective criminal offences).

Question 21

Explain article 2 (right to life).

Answer 21

Absolute right which:

1) prohibits the state taking life; and
2) places positive duty to protect life on the state.

Question 22

Explain the use of force expiation to article 2.

Answer 22

Use of force that results in deprivation of life is allowed where use of the force is absolutely necessary, and one or more of the following conditions are satisfied:

1) force is used in defence of person from unlawful violence;
2) force is used to effect lawful arrest or prevent escape of a person lawfully detained; or
3) force is used in action lawfully taken for the purpose of lawfully quelling riot or insurrection;

Question 23

Do embryos have a right to life?

Answer 23

No.

Question 24

Explain the scope of article 3.

Answer 24

ECtHR has defined torture as being ‘deliberate inhumane treatment causing very serious and cruel suffering.

Inhuman treatment is defined as punishment or treatment likely to cause actual bodily harm or intense physical and mental suffering.

Question 25

Explain the correlation between articles 2 and 3 and deportation.

Answer 25

ECtHR has determined that there is a violation of articles 2 or 3 where an individual is deported to, removed or extradited to a country where there was real risk they may be killed or tortured in a way which violates the articles.

This includes where the individual is likely to receive the death penalty.

Question 26

Define article 4.

Answer 26

Prohibits slavery and forced labour.

Question 27

What does not constitute forced or compulsory labour for the purposes of article 4?

Answer 27

Work ordinarily done by convicted prisoners;

Compulsory military service;

Work required in emergency or calamity threatening life or well being of the community; and

Work or service forming part of normal civic obligations.

Question 28

What is article 5?

Answer 28

Right to liberty and security.

Question 29

What are the 6 situations in which a state can lawfully deprive an individual of their liberty?

Answer 29

1) prison after conviction of crime;

2) arrested or detained to ensure they comply with court order;

3) arrest on suspicion of committing a criminal offence.

4) minor detained for purposes of educational supervision;

5) mentally ill detained for their own wellbeing and protection of others;

6) deletion of individuals connected with asylum deportation or extradition.

Question 30

Explain the formal procure necessary in order to detain someone lawfully without breaching article 5.

Answer 30

Dentition must be carried or in good faith.

Dentition must be necessary;

Length of detention can’t exceed that reasonably required for the purpose.

Proper records of detention must be kept;

Detention must be lawful within the terms of national law.

Question 31

What is article 6 ECHR?

Answer 31

Right to a fair trial.

This applies to both civil and criminal proceedings.

For civil proceedings, article 6 will only be invoked if it relates to an individual asserting substantive legal rights recognised in national law (eg breach of contract, tort claims or employment issues).

Question 32

What amounts to a criminal charge in respect of article 6 (according to the ECtHR)?

Answer 32

If the national law classifies the offence being alleged as criminal it falls under article 6. If not so clearly defined, where there will be a finding of guilt/ innocence and will involve a disciplinary/ punishment of the individual, this likely falls within the definition.

Question 32

What is article 6(2)?

Answer 32

Everyone charged with criminal offence shall be presumed innocent until proven guilty.

Question 33

What is article 7?

Answer 33

The prohibition on retrospective criminal offences.

This is an absolute right.

Question 34

What is article 14?

Answer 34

Prohibition of discrimination.

This is a qualified right.

Question 35

Explain article 10.

Answer 35

Freedom of expression.

Everyone has this right, including freedom to hold opinions and receive info and ideas without interference from a public body.

It can however be limited by law to the extent necessary in a democratic society to achieve national security, territorial integrity, public safety, prevention of disorder or crime and the protection of health and morals.

Question 36

Explain article 11.

Answer 36

Freedom of assembly.

Everyone has right to peaceful assembly and associate with others, but state is allowed to impose restrictions on this right which are necessary to achieve the same legitimate aims as for article 10 (eg national security, prevention of crime and disorder etc).

Question 37

Explain how the qualified rights can be interfered with by the state.

Answer 37

They can be limited to achieve one of the following legiimitate aims:

1) National security;

2) Prevention of disorder and crime ;

3) Protection of health and morality;

4) Public safety;

5) Territorial integrity.

Question 38

List the qualified rights.

Answer 38

Article 8 (Right to respect for private and family life);

Article 9 (Freedom of Thought, Conscience and Religion);

Article 10 (Freedom of expression);

Article 11 (Freedom of assembly);

Article 12 (Right to marry);

Article 14 (Prohibition of discrimination).

Question 39

List the limited rights.

Answer 39

Article 5 (right to liberty and security);

Article 6 (Right to a fair trial).

Question 40

Explain the proportionality test.

Answer 40

Applies to qualified rights which are being limited by the state.

It can be limited if it achieves one of the legitimate aims, and also satisfies the following proportionality criteria:

1) Object of policy and legittimiate aim pursued if sufficiently important to justify limiting a fundamental right;

2) Measure is designed to meet the objective and is rationally connected to it;

3) Interference with the right is no more than necessary to accomplish the objective (ie no less onerous means can achieve the aim).

Question 40

Explain the principle of judicial deference.

Answer 40

Similar to proportionality.

Greater deference is likely to be shown for controversial and national security related matters (ie more likely to be referred back to parliament).

Less deference will be shown where matters is less political/ security based, making it more likely greater evidence is required to show the limitation placed on a qualified right is proportionate.

Question 41

When will a wider margin of appreciation be shown?

Answer 41

When convention states all approaches h a matter differently in a wider array of ways, the margin of appreciation will be wider.

Where they all take similar approaches and this differs to the measure being proposed, the margin of appreciation will be narrower.

Question 42

Explain the living instrument principle.

Answer 42

ECHR is capable of adapting to change snd the following principles help this:

1) Not bound by previous decisions;

2) Consistent approach of contracting states (ie if an approach is consistent across a lot of states the ECtHR may reflect this in their decisions);

3) ECtHR is accessible to all individuals (the convention is to be interpvewted in a practical and accessible manner).

Question 43

Explain article 14 ECtHR.

Answer 43

Freedoms under ECHR shall be achieved without any discrimination on grounds of sex, race, national origin, colour, language, political views, religion, birth, property or other status.

Direct and indirect discrimination are prohibited (having the same application as ion the Equality Act 2010).

Question 44

What is the margin of appreciation granted to states in relation to article 14?

Answer 44

Narrow margin, so states have very little discretion allowing them to treat a person less favourably on basis of one of the protected grounds.