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Introduction to Human Rights I - ECHR (Convention for the Protection of…
Introduction to Human Rights I - ECHR
Background
Natural law
Influence on revolution
USA 1776
France 1789
Enlightenment - liberalism
Post WWII
Nuremburg Trials
Universal Declaration of Human Rights - 1948
Article 1 - All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
European response - Council of Europe - 1949
47 member states (all except Belarus)
Governing body for ECHR and ECtHR
Not the same as EU
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR/"the Convention")
Significant British involvement
Drafted 1950
Came into force 1953
Jurisdiction - Article 1 - "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section1"
Al Skeini & Others v UK (2011) - death of six Iraqis heled to breach of Article 2 - occupation of Basra held to be sufficient control by UK forces
Relates to degree of control
R (Jason Smith) v MOD (2010)
Smith, Ellis and Allbutt v MOD (2013)
Derogation - Article 15
No derogation possible at all from Article 3 - prohibition of torture or inhuman and degrading treatment
No derogation possible at all from Article 2 - right to life, unless lawfully in war
With other Articles, derogation possible if...
i) In time of war or other public emergency threatening the life of the nation
ii) When strictly required by the exigencies of the situation
A & Others v SOS Home Dept (2005)
Ireland v UK (1978)
Standing - Article 34
Any person, non-governmental organisation of group of individuals claiming to be a victim of a violation
Sunday Times v UK (1979)
Klass v Germany (1978) - victim - any person or group etc. directly affected by personal violation
Articles
Articles 2-14 - key rights and freedoms
Most involve "presumptive" rights with some degree of qualification or limitation
e.g. Articles 8-11 - qualified rights
Article 5 - limited right
Exception - Article 3 - complete prohibition on torture or inhuman and degrading treatment - absolute right
Key convention principles
Positive obligation
X and Y v Netherlands (1986)
Chahal v UK (1997)
Soering v UK (1989)
Osman v UK (2000)
Margin of appreciation
Interpretive principle
Changing values?
Convention as a "living instrument" - purposive interpretation to give effect to fundamental aims of the ECHR
Strasbourg conscious of national and regional traditions
Note difference at international level and "deference" at a domestic level
R v DPP ex p Kibelene (1999) - "an area of judgement within which the judiciary will defer on democratic grounds" - Lord Hope
Handyside v UK (1976)
ABC v Ireland (2010)
Proportionality
"Inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights" - Soering v UK
Does the interference answer "a pressing social need" and is it proportionate to the legitimate aim pursued? - Handyside v UK (1976)
"De Freitas test"
Adopted in R v SoS Home Dept ex p Daly (2001) - by Lord Steyn
Is the legislative objective sufficiently important to justify limiting a fundamental right?
Are the measures designed to meet this objective rationally connected to it?
Are the means used to impair the right no more than is necessary to accomplish the objective?
Bank Mellat v HM Treasury (No 2) (20013) - Lord Reed
Human Rights Act 1998)
Need for HRA?
International law - "dualism"
Right of UK citizens to petition ECtHR - 1966 - Malone v UK
Pressure to incorporate ECHR - Lord Lester/Lord Scarman
Treaty obligation
1997 Human Rights Bill
"Rights Brought Home" - effective 2000 (earlier in Scotland)
S1 HRA
Incorporation of ECHR into UK law
Comparable to ECA 1972 (s2)
Except Article 13 - "providing adequate remedies"