HRA - Articles 2, 3, 5 and 6 Flashcards
(18 cards)
When is a killing not in violation of Article 2?
If it results from the use of force, which is no more than absolutely necessary (proportionality test), in defence of any person from unlawful violence, to arrest, in order to quell a riot / insurrection.
What is the state’s investigative duty under article 2?
Must fully investigate any cases of state killing - must be public, independent and involve the full participation of the familly
State has a command, control and training duty to security forces to ensure that there is no aimless loss of life
this duty holds if the death has been caused by a third party
article 3: what constitutes ‘inhuman and degrading treatment’?
Only serious ill treatment or neglect - assessment of a minimum level is relative, depending on circumstances of the case
Article 3: difference between torture versus inhuman and degrading treatment?
Torture - aggravated, deliberate and cruel form of treatment or punishment -should have a special stigma above and beyond
To show a breach of article 3, what must the nature of the conduct of the state be?
Of a serious and wholly unacceptable kind
How does the positive obligation with regards to article 3 operate?
Public authorities have a positive duty to take action to prevent individuals being subjected to torture etc
If authorities know about circumstances that can expose an individual to ill treatment, this may be activated - relevant for extradition purposes often - consider if there is a ‘real risk’ of mistreatment?
What is the investigative duty under Article 3?
Must conduct an effective investigation into crimes
What is in Article 5(1) and Article 5(2)?
5(1) - basic, substantive right to liberty
5(2) - additional due process rights to which a detainee is entitled
How does a court distinguish between deprivation as opposed to a restriction of liberty?
Deprivations only come under Article 5(1) - must be a concrete situation
When is kettling article 5(1) compliant?
When it is proportionate and not imposed arbitrarily - done in order to avoid a real risk of serious injury or damage to property
Judging when you can interfere with a qualified right
When considering whether a right is prescribed by law, what is relevant?
If the law has a basis in national statute
must be adequately accessible
have sufficient precision to enable the citizen to regulate his conduct
citizen must be able to foresee the consequences of non-compliance, more or less
domestic law can never be expressed in terms of unfettered discretion - safeguards, necessity - etc
When is there a ‘reasonable suspicion’ to arrest someone under the ECHR? Consider after an offence and also preventatively
Evidence of facts or information that would satisfy an objective observer that the person concerned may have committed the offence
If preventative - must be proportionate detention for preventative purposes only - short term, in order to prevent the committing of a concrete and specific offence
What due process is a detainee entitled to under Article 5(2) ECHR?
informed for reasons of the arrest
brought promptly before a judge
lawfulness of arrest decided speedily
entitled to compensation for any breach of this
What are the three key elements to Article 6 ECHR?
- Basic right to a fair and public hearing in a reasonable time, by an independent and impartial tribunal established by law
- Presumption of innocence
- Minimum set of rights given to everyone charged with a criminal offence - including right to access legal representation
civil / criminal rights
fairness of a process can extend to preliminary investigation beforehand
How is access to justice represented in the courts?
Under Article 6(1) - right of access to courts, effective access, including professional legal advice and representation
How does the ECHR approach the ‘timely process’ element of the right to a fair trial?
Will consider the complexity of the case, the conduct of the defendant, and the manner in which the case has been dealt with by authorities.
When can access to legal advice be restricted under the ECHR?
Only where there is a good reason for doing so
When might article 6 prevent an extradition or a deportation?
If the person will experience a flagrant denial of a fair trial in that state
