Con & Ad - ECHR

Question 1

ECHR

Could other states bring proceedings against the UK in the ECtHR?

Answer 1

Yes

Question 2

Would a judgment against the UK in the ECtHR be binding?

Answer 2

Yes, as a matter of international law.

Question 3

Two types of proceedings?

Answer 3

1. State applications - i.e. proceedings brought by one state against another
2. Individual petitions

Question 4

Restrictions on bringing an individual petition to the ECtHR?

Answer 4

• Must have exhausted domestic remedies first
• Must be done within the time limit - within four months of the final decision (in the UK this would usually be the decision of the SC)

Question 5

Requirements for an applicant to bring a claim to the ECtHR?

Answer 5

• Must, personally and directly, be victims of violations of the ECHR
• Must have suffered a significant disadvantage

Question 6

Two stage process for cases before the ECtHR?

Answer 6

1. Admissibility stage
2. Merits stage

Question 7

Difference between limited and qualified rights?

Answer 7

Limited: can only be limited in finite and clearly defined situations
Qualified: require a balance between the rights of the individual and the wider public interest

Question 8

What won’t constitute violation of right to life?

Answer 8

Deprivation of life resulting from the use of no more force than is absolutely necessary

Question 9

Is Article 5 (liberty and security of the person) limited or qualified?

Answer 9

Limited

Question 10

Is Article 6 (fair trial) absolute, limited, or qualified?

Answer 10

Absolute

Question 11

What’s article 7? Absolute, limited, or qualified?

Answer 11

Prohibits someone being guilty of a criminal offence which did not exist at the time they committed it (unless the act is criminal according to generally recognised principles).
Absolute

Question 12

Broadly, which articles are absolute and which are qualified?

Answer 12

Articles 2-7 are absolute (5 is limited)
Articles 8-11 are qualified (9 has elements that are absolute)

Question 13

What’s Article 9? Absolute or qualified?

e.g. jewellry

Answer 13

Absolute in relation to freedom of thought/ religion.
Qualified in relation to manifestation of freedom in worship/ observation.

Question 14

What are Articles
6)
8)
10)
11)

Answer 14

6) fair trial
8) private and family life
10) expression
11) assembly and association

Question 15

Qualified rights

Requirements for a restriction to be recognised?

Answer 15

• Only if they are expressed in the ECHR
• Can only be used for the purpose for which they have been prescribed

Question 16

Qualified rights

When can a restriction be relied upon (3 elements)?

Answer 16

If it:
a) is prescribed by law
b) has a legitimate aim
c) is necessary in a democratic society.
Must not be applied in a discriminatory fashion.

Question 17

Qualified rights

Meaning of ‘qualification must be prescribed by law’?

Answer 17

• Qualification must be embodied in law
• Law must be accessible
• Law must be sufficiently prceise to enable citizens to regulate their conduct

Question 18

Qualified rights

Meaning that a qualification must have a legitimate aim?

Answer 18

Must be justified by reference to the aims specified for each right.

Question 19

Qualified rights

Four legitimate aims for qualifying Article 8

Answer 19

a) interests of national security, public safety, or economic well-being of the country
b) prevention of disorder or crime
c) protection of health or morals
d) protection of the rights or freedoms of others

Question 20

Qualified rights

Four legitimate aims for qualifying Article 10

Answer 20

a) prevention of disclosure of information received in confidence
b) prevention of disorder or crime
c) protection of health or morals
d) maintaining the authority and impartiality of the judiciary

Question 21

Qualified rights

Meaning of ‘necessary in a democratic society’?
What are states granted in determining necessity?

Answer 21

• There must be a ‘pressing social need’
• Interference with the right must be proportionate

Margin of appreciation - ECtHR will respect the legitimate judgment of a member state as to what the public interest requires.

Question 22

Qualified rights

Included in the qualities of a ‘democratic society’?

Answer 22

Includes tolerance of minority opinions and lifestyles - fact that a majority in a state opposes homsexuality wouldn’t excuse a law that criminalised it contrary to Article 8.

Question 23

Derogations

When may a state derogate from part of the ECHR? Meaning?

Answer 23

• In time of war or other public emergency threatening the life of the nation
• For the period of the derogation, state is not bound to apply the specific provisions

Question 24

Derogations

Articles that can’t be derogated from?

Answer 24

• No derogation possible in respect of Article 3 (torture), 4 (slavery) or 7 (restrospective criminal offences)
• No derogation from Article 2, except for deaths resulting from lawful acts of war

Question 25

# Derogations Provisions in the HRA re. derogation?

Answer 25

States that Convention rights are to be read subject to any derogation, so a court cannot enforce Convention rights when a derogation is in operation.

Question 26

# Convention rights Two elements to the right to life

Answer 26

Article 2 a) prohibits the state from taking life; and b) places on the state a positive duty to protect life

Question 27

Death penalty under the ECHR?

Answer 27

* Prohibited by Protocol 6 (not by article 2) * Death penalty cannot be reintroduced except for acts committed in time of war/ imminent threat of war

Question 28

When does Article 2 permit the use of force that results in the deprivation of life

Answer 28

1. First must be no more than absolutely necessary 2. Use of force must be either: a) in defence of any person from unlawful violence; b) to effect a lawful arrest/ prevent escape of a person lawfully detained; or c) in action taken for the purpose of lawfully quelling a riot/ insurrection

Question 29

Example of margin of appreciation being applied in respect of Article 2?

Answer 29

Abortion/ decision that embryos have no right to life.

Question 30

Case law on assisted suicide and Article 8?

Answer 30

CoA held in 2018 that Article 8 is engaged by the blanket ban on assissted sucide, but it was held to be a necessary and proportionate interference.

Question 31

Additional duty placed on states by Article 2?

Answer 31

State must carry out a full and thorough investigation where an allegation has been made that there has been a breach of Article 2.

Question 32

# Article 3 Definition of 'torture'? Definition of 'inhuman treatment'? In R v Ireland?

Answer 32

Torture = 'deliberate inhuman treatment causing very serious and cruel suffering' Inhuman treatment = 'treatment or punishment likely to cause actual bodily injury or intense physical and mental suffering'. In R v Ireland, interrogation techniques including sleep deprivation, being made to stand against a wall, etc. were inhuman treatment.

Question 33

# Article 3 Corporal punishment cases?

Answer 33

States have an obligation to ensure that non-state actors do not punish children to a level at which Article 3 will be engaged. Injuries inflicted on a child by his stepfather for 'reasonable chastisement' were found to engage Article 3; found that staet had failed to put in place laws that would protect the rights of children.

Question 34

# Articles 2 and 3 Duty regarding removal/ extradition cases?

Answer 34

Would be a violation of Articles 2 and/or 3 if an individual were to be sent to a country where there was a real risk that their Article 2/3 rights would be violated.

Question 35

# Articles 2 and 3 Extension of the principle re. deportation/removal in relation to Rwanda?

Answer 35

Would be unlawful to send someone to Rwanda if an imadequate asylum system there meant there was a real risk of asylum seekers being returned to a country where their rights would be infringed.

Question 36

# Article 4 What is prohibited under Article 4? What isn't included?

Answer 36

Slavery/ servitude/ forced labour. * work done as part of a criminal sentence * compulsory military service * work required in an emergency/ calamity threatening the life or wellbeing of the community * any work or service forming part of normal civil obligations

Question 37

# Article 4 Definition of slavery?

Answer 37

Staus or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

Question 38

# Article 4 Definition of forced labour?

Answer 38

Work or service that an individual was forced to do against their will

Question 39

# Article 5 Basic principle in Article 5?

Answer 39

Right to liberty and security - no one is to be deprived of their liberty in an arbitrary fashion

Question 40

# Article 5 Article 5 - limitations on the limitation?

Answer 40

Deprivation of someone's liberty must still be carried out through due process of law.

Question 41

# Article 5 Will a sentence that bans someone from entering a specific area breach Article 5? Why not?

Answer 41

No - because doesn't deprive someone of their liberty.

Question 42

# Article 5 Case law on what will constitute a deprivation of liberty?

Answer 42

* Matter of degree based on the circumstances * In Guzzardi, someone obliged ro reside on a small island with multiple restrictions (including limited social contact and limits on when he could leave home) was sufficient to meet the definition in Article 5 * Circumstances will be considered holistically

Question 43

# Article 5 General approach to 'deprivation of liberty'?

Answer 43

* Extends beyond detention in prison * Generally needs to be a significant element of physical confinement, plus significant restrictions when outside of the confinement

Question 44

# Article 5 Kettling sufficient to be a deprivation of liberty?

Answer 44

Depends on the circumstances, during a protest in 2012, people who had been caught up in a police cordon during dangerous conditions. Held that they hadn't been deprived of their liberty.

Question 45

# Article 5 Limitations on Article 5?

Answer 45

1. Criminal offences 2. Detained to ensure compliance with court order 3. On remand having been arrested 4. Minor being detained for educational supervision 5. Mental illness 6. Asylum/ deportation

Question 46

# Article 5 Requirements to be met in order for the limitations to be used lawfully?

Answer 46

* Detention must be in good faith, i.e. closely connected to one of the purposes for limitation * Must be necessary (less severe measures must have been considered/ rejected) * Length must not exceed that reasonably required * Proper records must be kept * Must be lawful within the terms of the national state law

Question 47

# Article 6 What's the right under Article 6?

Answer 47

Right to a fair trial

Question 48

# Article 6 Will be invoked when?

Answer 48

Where a case concerns an individual attempting to assert a substantive legal right that is recognised in national law.

Question 49

# Article 6 Considerations for determining whether something is a criminal charge?

Answer 49

* (In Engel, court found that penalties imposed on conscripted soliders for breaching military discipline did amount to criminal charges) * Does the state classify something as being criminal rather than disciplinary/ administrative? * If not, court will seek to determine whether proceedings against individual are similar to a criminal trial * What's the **purpose of proceedings - is it to impose some sort of punishment?**

Question 50

# Article 6 Requirements for a fair trial?

Answer 50

1. Individual should have access to the court; 2. Court should be independent and impartial; 3. Trial should be in public, and the decision of the court pronounced publicly; 4. Trial should take place within a reasonable time; and 5. Trial itself should be conducted in a fair way

Question 51

# Article 6 Circumstances in which press/ public can be excluded from all or part of a trial?

Answer 51

* where required in the interests of morality, public order, or national security * where exclusion is required in the interests of juveniles or the protection of the private life of the parties; or * where there are special circumstances that, in the opinion of the court, would prejudice the interests of justice

Question 52

# Article 6 Rules around criminal procedure / admissibility of evidence?

Answer 52

Matters for the national law of the states

Question 53

# Article 6 Right to a fair trial/ privacy - bugging device case?

Answer 53

In Khan, evidence was used obtained from a bugging device. Was held to have violated his right to privacy under Article 8 because English law on usage wasn't sufficiently clear, but held to have been no violation of right to a fair trial.

Question 54

# Article 6 Broad approach when considering whether Article 6 rights have been violated?

Answer 54

Court will consider whether the trial as a whole was fair, taking into account domestic law/ rights of appeal, etc.

Question 55

# Article 6 Strict liability offences infirnge on a right to a fair trial?

Answer 55

No - permissible provided that they are reasonable.

Question 56

# Article 6 Right to a fair trial and the drawing of adverse inferences?

Answer 56

Not a breach to draw adverse inferences, as long as D is not convicted solely on the basis of their silence.

Question 57

# Article 6 Additional rights of a defendant to criminal proceedings?

Answer 57

1. Right to be informed 2. Right to have adequate time and facilities to prepare a defence 3. Right to defend themselves/ have legal representation 4. RIght to call and cross-examine witnesses 5. Right to hvae the free assistance of an interpreter

Question 58

# Article 7 Why did applicants in the marital rape case fail to establish violation of Article 7?

Answer 58

ECtHR rules that Article 7 did not preclude gradual clarification of the principle of criminal liability on a case-by-case basis, provided the development could reasonably be foreseen.

Question 59

# Qualified rights When can a government lawfully interfere with a qualified right?

Answer 59

If the interference: a) is prescribed by law b) has a legitimate aim c) is necessary in a democratic society

Question 60

# Qualified rights Test court will use to determine whether a restriction is 'necessary in a democratic society'?

Answer 60

Proportionality test

Question 61

# Qualified rights - necessary in a democratic society What's the test (four parts)?

Answer 61

a) whether objective of the measure complained of is sufficiently important to justify limitation of a fundamental right; b) whether the measure is rationally connected to the objective; c) whether a less intrusive measure could have been used; and d) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck betwen the rights of the individual and the interests of the community

Question 62

# Qualified rights - Article 8 What is guaranteed under Article 8 (four things)?

Answer 62

Respect for someone's a) private life b) family life c) home d) correspondence

Question 63

# Qualified rights - Article 8 Case example in Peck?

Answer 63

* P was standing on the street attempting suicide by cutting his writsts * Wasn't charged with a crime * Captured on CCTV, and the footage was used in a campaign to demonstrate the effectiveness of CCTV in combatting crime * Wasn't proportionate - no attempt to mask his identity/ gain his consent: violation of Article 8

Question 64

# Article 8 - deportation, removal, and extradition Relationship to healthcare?

Answer 64

HoL have held that Article 8 could be engaged where the main issue was the impact of removal on mental/ physical health. High threshold: needs to be something much more extreme than bad healthcare standards in the receiving county.

Question 65

# Article 8 - deportation, removal, and extradition Factors court will consider when considering whether deportation/ removal/ extradition is proportionate

Answer 65

1. Length of time individual has been in the country 2. Seriousness of the individual's offences 3. Details of individual's particular family circumstances (e.g. age of children/ length of relationship) 4. Interests of the children 5. Seriousness of the difficulties that the family may experience in the receiving country 6. Nature of ties that individual has with the two countries

Question 66

# Article 8 Climate change?

Answer 66

ECtHR has held that Article 8 encompasses a right to effective protection by State authorities from serious adverse effects of climate change on health, wellbeing, and quality of life.

Question 67

# Article 9 What is Article 9? Absolute or qualified?

Answer 67

Freedom of thought, conscience and religion **(absolute)** and freedom to manifest religion/ belief **(qualified)**

Question 68

# Article 9 Case examples: Lavelle (Registrar who refused to marry same-sex couples) MacFarlane (counsellor for Relate who refused to provide therapy for same-sex couples) Both faced disciplinary proceedings.

Answer 68

ECtHR held that states had a wide margin of appreciation, and interference hadn't been disproportionate in either case. The legitimate aim was securing the rights of others/ providing a service without discrimination.

Question 69

# Article 9 Begum - schoolgirl who was excluded from school for failing to comply with uniform policy (a shalwar kameez) and choosing instead to wear a jilbab.

Answer 69

Not held to be disproportionate. Court considered extent to which an individual could reasonably expect to be at liberty to manifest their beleifs Relevant factors: * they had chosen a school, outside their catchment area, rather than one inside that would have permitted wearing it * she'd worn a shalwar kameez for the first two yeras at school * school had worked hard to devise a uniform policy that respected beliefs

Question 70

# Article 10 Examples of restrictions which have been found to be proportionate?

Answer 70

* Interim injunction on publishing extracts from a book b a former member of the security services (pending a funal hearing to determine whether book's publication should be allowed) * Ban on political advertising on TV - pursued the legitimate aim of preserving impartiality of broadcasting

Question 71

# Article 10 Extent of free speech protected by Article 10?

Answer 71

Includes that which is 'offensive, shocking, or disturbing' - but not speech which goes beyond that.

Question 72

# Article 10 Factors court will take into account (from American flag case - what was the outcome?)

Answer 72

Her conviction was incompatible with her right to freedom of expression * whether behaviour had gone beyond legitimate protest * whether behaviour had been part of an open expression on an issue of public interest but had been disproportionate and unreasonable * whether individual could have expressed their views on another way; * individual's knowledge of the likely effect of their conduct upon those who witnessed it * **whether use of any object had no relevance to the conveying of the message of protest and had been used as a gratuitous and calculated insult**

Question 73

# Article 10 Hate speech in Norwood (BNP)

Answer 73

* Convicted for an offence after displaying a poster which said 'Islam out of Britain'. * Application to ECtHR rejected because views were incompatible with values of tolerance, respect, and non-discrimination

Question 74

# Article 11 What is Article 11? What is not afforded protection?

Answer 74

Freedom of (peaceful) assembly and freedom of association. Doesn't protect violent behaviour.

Question 75

# Article 11 Obligation on states re. peaceful protest?

Answer 75

State not subject to an absolute obligation to facilitate peaceful protest; may be lawful for authorities to restrict a protest that is provoking, or is likely to provoke, violence.

Question 76

# Article 11 Political party case (the first Turkish one)?

Answer 76

Political party's choice of name could not justify its dissolution in the absence of other relevant and sufficient circumstances.

Question 77

What's unusual about Article 14 - protection from discrimination?

Answer 77

It's not free-standing - to rely on it, victim must show that discrimination affected their enjoyment of one or more of their other convention rights.

Question 78

Additional rights set out in the protocols? (4)

Answer 78

* education * protection of property * free elections * abolition of the death penalty