HRA/ECHR Flashcards
(32 cards)
ECHR Absolute Rights
Article 3: Prohibition on torture or inhuman or degrading treatment or punishment.
Article 4: Prohibition on slavery and forced labour;
Article 7: no punishment without lawful authority, with particular regard to retrospective criminalisation and punishment.
ECHR limited rights
Article 2: The right to life
Article 5: The right to liberty and security of person
Article 6: The right to a fair trial and fair legal process
What is a qualified right?
a right that can be lawfully interfered with by the state
ECHR qualified rights
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 and association
For the state to interfere legitimately with a qualified ECHR right, what 3 requirements must be met?
1) PBL: prescribed by law
2) in pursuit of a legitimate aim
3) necessary in a democratic society (i.e. proportionate)
A positive obligation with respect to human rights law is an obligation on the part of the state to
prevent the violation of rights being carried out by third party, non-state actors
The positive obligation must not be interpreted in a way that places an
excessive burden on states and public authorities
How had the Netherlands breached its positive obligation under article 8 in X and Y v Netherlands?
The lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties
Margin of appreciation
Contracting ECHR states have some degree of discretion as they have a better knowledge of the political, social, and cultural traditions that influence their countries than the ECtHR does, and this should be respected.
Areas where ECHR affords the state a broader discretion
Morality and religion
Public emergency
National security
Social, economic and environmental policies
Areas where ECHR affords the state less discretion
Where individual rights are affected eg personal liberty and legal rights
How is proportionality applied?
by deciding whether a fair balance has been struck by the state between the general community interests on the one hand, and the protection of individuals’ human rights on the other
It is unlawful for ‘public authorities’ (including courts and tribunals) to act in a way that is incompatible with
Convention rights
Is ECtHR case law binding on domestic courts?
No but domestic courts should follow any clear and consistent jurisprudence unless there are special circumstances
How has the domestic court approach shifted from mirror principle to dialogue?
Domestic courts may may decline to follow Strasbourg judgments in the hope that they may be reconsidered (works both ways, rather than domestic courts always mirroring ECtHR)
Which public authority is excluded from the obligation on ‘public authorities’ to act in a way that is compatible with Convention rights?
Parliament in its legislative roles and any person exercising functions in connection with proceedings in Parliament
S 6 recognises three types of bodies
‘core’ public authorities; ‘hybrid’ or ‘functional’ public authorities; and private bodies (s 6(5))
Aston Cantlow test for whether a body is a ‘core’ public authority
the possession of special powers
democratic accountability
public funding in whole/part
an obligation to act only in the public interest
a statutory constitution
Can a private body be liable under s.6 HRA?
Yes, if it is performing a function of a public nature it may be liable under the HRA in respect of that particular public function
the test for standing under the HRA 1998
the applicant must be a directly affected victim of the unlawful act (this includes “legal persons” eg companies)
An NGO can only bring an action when it can claim that
a state is violating the rights that it enjoys itself as an organisation
Time limit to bring a claim under HRA 1998
within one year of the date of the act complained of
When may the court award an extension to bring an HRA claim?
where it is ‘equitable’ to do so in all the circumstances
If the alleged violation of a right is considered to be a continuing matter, time will start running when
the violation ceases to operate
