ECHR Art. 2, 3, 5, 6 Flashcards
(18 cards)
Why is Article 2 ECHR not an absolute right?
because 2(2) allows agents of the state to strip people of their right to life e.g. defending a member of public from unlawful violence
For Article 2(2) ECHR, the use of force must be
no more than absolutely necessary
As part of the state’s “negative” obligation to refrain from killing (under Article 2), the state has a duty of
command, control and training of military personnel
Investigative duty under Article 2
imposes a duty on the state to investigate all situations in which the state directly takes a life, including where jurisdiction applies overseas
Investigations under Art. 2 must be
public, independent and involve the full participation of the family
How does Art.2 interact with medical patients seeking assisted suicide?
The courts have to apply a balance between the wishes of the person not to have to die in circumstances that may be ‘inhuman and degrading’ and the state’s obligation to do what is reasonable to preserve life
Threshold to meet ‘inhuman and degrading treatment’ for Art. 3
To show a breach, the conduct on the part of the state must be of a serious and unacceptable kind (R v Spinks)
What is torture?
aggravated, deliberate and cruel form of treatment or punishment
Can the UK remove an individual to a jurisdiction where they would face torture?
No, it would be a breach of the UK’s positive obligation as a Convention state to remove an individual to a jurisdiction where there was a ‘real risk’ he would suffer treatment contrary to the Convention.
refoulement
the forceable return of refugees or asylum seekers to their home country or another where they are at risk of persecution and danger
Article 5 right to liberty is not engaged unless a person is
deprived of their liberty
Can kettling amount to a deprivation of liberty?
Yes but depends on the facts - allowed where kettling is the least intrusive and most effective crowd control measure to avoid a real risk of serious injury or damage to property
Do control orders engage Art 5(1)?
Yes, control orders amount to a deprivation of liberty
To satisfy “prescribed by law” requirement, the law must be:
Adequately accessible
Formulated with sufficient precision to allow a citizen to regulate their conduct accordingly
The law does not have to be absolutely clear and precise
someone who is arrested and detained should be brought
promptly before a judge
max. period for detention after arrest
4 days (Brogan v UK - terrorism suspect)
the victim of an article 5 (deprivation of liberty) breach by a state is entitled to
compensation
threshold for inhuman and degrading treatment
treatment causing intense physical and mental suffering
