Lecture 14: The European Convention of Human Rights (ECHR) Flashcards
What does the ECHR protect and how does it operate?
The ECHR mainly protects civil and political rights.
Under Article 1, states must ensure these rights for everyone.
People can take cases to the ECtHR, which can give compensation
What are negative and positive state obligations under the ECHR?
States must avoid harming rights (negative duty) and sometimes protect them (positive duty), like in X and Y v Netherlands 1986 , where Article 8 (right to private life) requires states to protect individuals even from private parties.
What are absolute, limited, and qualified rights under the ECHR?
Absolute rights such as Article 3, prohibition of torture cannot be limited.
Limited rights such as Article 5, right to liberty can be restricted in defined situations.
Qualified rights such as Article 10, freedom of expression require a balance between individual rights and public interest.
What is derogation under Article 15 ECHR?
Article 15 allows states to suspend some rights during an emergency threatening the nation. Some rights cannot be derogated:
Article 2 (right to life, except lawful war),
Article 3 (torture),
Article 4 (slavery),
Article 7 (no punishment without law).
In Lawless v Ireland 1979, the Court said an emergency must affect the whole population.
How does the ECtHR interpret the ECHR’s purpose?
The Court sees the Convention as a living document, adapting to current times, (Goodwin v UK 2002).
It aims to protect real rights (Airey v Ireland 1979) and support democracy and human rights (Handyside v UK 1979.
What is subsidiarity and the margin of appreciation?
Under Protocol 15, subsidiarity means states have the main duty to protect rights with a margin of appreciation,
but the ECtHR still checks if restrictions are justified (Handyside v UK, 1979
What is proportionality under the ECHR?
Proportionality means limits on rights (Articles 8–11)
must balance public needs and personal freedoms
without being unfair
What are the steps in a proportionality analysis?
Was there interference?
Was it prescribed by law? – must be clear law (Malone v UK, 1985
Was the aim legitimate? – e.g., public safety or health
Was it necessary in a democratic society? – “pressing social need” (Sunday Times v UK 1979
What remedies does the ECHR provide?
ECHR provides Two main remedies:
Friendly settlement after admissibility (Article 39)
Just satisfaction (compensation) if violation is found (Article 41)
