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Flashcards in European Human Rights System Deck (39)
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1

What is EUropean HR system made up of?

Council of Europe
ECHR
European Court of Human Rights

2

What is the CoE??

Committee of ministers from member states
Individual appointed European Commissioner of HRs
Congress of local/regional authorities

3

What kind of rights are protected in the ECHR 1950

LOTS
- some absolute, some qualified
- no hierarchy
- some are derogable, others arent

4

What is an absolute right

- Non-derogable under A15
- Notably A3 = no torture
A4 = no slavery

5

What is a qualified right?

- State can interfere IF:
I) Justifiable
II) Demonstrate interference was LEGAL, LEGITIMATE, NECESSARY and aim was to prrotect a RECOGNISED INTEREST

6

What is the primacy principle

National law must be made compatible -> ECHR is top

Protections provided must be equivalent to ECHR

7

State Obligations?

A1 = guarantee ECHR rights and freedoms to all in jurisdiction

8

Positive state obligations

Provide active protection to an adequate standard
State response must be fast and effective

9

Negative state obligations

Refrain from unlawfully preventing an individual from exercising their convention rights

10

4 main interpretaions of ECHR

1) living instrument
2) generous and purposive
3) margin of appreciation
4) proportionality

11

LIVING INSTRUMENT interpretation

TYRER v UK 1978
- rights in constant development so ECHR must be interpreted in light of present conditions
- standards may change as society does

12

Case living instrument interpretation

TYRER v UK 1978

13

potential issue with living instrument interpretation of ECHR

Gives the ECtHR a role of judicial activism = non democratic

14

GENEROUS AND PURPOSIVE interpretation of ECHR

GOLDER v UK 1980
- 'how can a right be guarenteed without real and practical access to it''
- Protection of rights must have a use
- 'Fair public and expeditious characteristics of judicial proceedings has no value at all if there are no judicial proceedings'

15

case for ECHR being generous and purposive

GOLDER v UK 1980
= whats the point in rights if they cant be easily accessed and enforced?

16

MARGIN OF APPRECIATION view of ECHR

HANDYSIDE v UK 1980
- It is not for the ECHR to set absolute standards for every country in the council of Europe'

17

Case for ECHR having a margin of appreciation?

HANDYSIDE v UK 1980

18

ECHR interpreted with PROPORTIONALITY?

SOERING v UK 1979
- ECHR is a search for a fair balance between general interests of a community VS requiremenet to protect individual fundamental rights

19

s46(1) ECHR

What the ECtHR says goes
LOOKING AT YOU HRA 1999

20

HRA 1999's attempt to make UK domestic law more important?

s2/3(1)/4(1)
= 'take into account'
= 'so far as it is possible'
= 'deceleration of incompatibility

NO -> ECtHR goes. s46(1)

21

Under A3, what is meant by TORTURE

deliberate inhuman treatment causing very serious and cruel suffering
stigma attached

22

Under A3, what is meant by INHUMAN TREATMENT

intense physical or mental suffering

23

Under A3, what is meant by DEGRADING TREATMENT

treatment that may arouse in V fear, anguish and inferiority capable of humiliation and debasement
possibly breaking physical or moral resistance

24

which case held how intense suffering must be to violate A3

IRELAND v UK 1979
torture must be actual bodily injury
otherwise it must be 'severe'

25

case that highlights ABSOLUTE nature of a3

CHALAL v UK 1996

26

CHALAL v UK 1996

- Absolute right to freedom frm torture
- positive obligation to prevent = no deporting

27

How high must the risk of torture be to prevent deportation?

'sufficiently real and probably'
HIRSI JAMA v ITALY 2012

28

Case that stated risk of torture must be 'sufficiently real and probable' to prevent deportation?

HIRISI JAMA v ITALY 2012

29

What is the NON-REFOULMENT principle

A33 Refugee Conv 1951 + A3
'must not return irregular migrants to countries where they would be at risk of HR violations'

30

What is secondary migration?

Returning migrants to non-EU countries that they had only passed through on journey and had no tie to (TURKEY)

31

What agreements has the obligation to avoid secondary migration created?

EU-TURKEY AGREEMENT 2016
EU-AFGHANISTAN AGREEMENT 2016

32

A5 ECHR?

right to liberity -> twofold

33

twofold nature of A5

Freedom from unlawful arresst/detention
Protection from aribitary intereference with liberity

34

Which protocol directly relates to A%5 ECHER?

protocol 4

35

when does protocol 4 state liberty CAN be interfered with

A2(3)
- national security, public safety and maintaince of public order

36

what is the margin of interpretation of the exceptions to protocol 4

STRICT
objective test of legitimacy + reasonableness

37

What is a deprivation of liberty?

serious form of restriction of physical liberty

38

AMMUR v FRANCE 1996

- bbeing held in transit area of airport = violation of A5

39

GILLAN v UK 2010

Stop and search is not a violation of A5
interesting, 'arbitrary' much