Human Rights 1 Framework and Critiques

What is the ECHR?

The ECHR is an international human rights treaty established by the Council of Europe that ensures the protection of human rights and fundamental freedoms in Europe. It was modelled on the Universal Declaration of Human Rights 1948 and ratified by all 46 member states of the Council for Europe, impacting the legal systems of around 675 million people. It contains Articles that detail core rights (such as the right to life) and led to the formation of the ECtHR (1959; made permanent in 1998 via Protocol 11) which exercises a supervisory role over the states and hears cases on potential violations that are brought to it. The Vienna Convention on the Law of Treaties (VCLT) applies to its interpretation.

What kind of state obligations exist in relation to the ECHR?

• Primary Obligation: to secure the rights and freedoms under the Convention to the people living in their states/in their jurisdiction (Article 1 ECHR)

• Positive Obligations (includes procedural obligations)

• Negative Obligations

Such obligations may have indirect horizontal effect.

What is the margin of appreciation?

The ECtHR grants states some deference on the necessity of an infringement at the justification stage. The margin of appreciation is the degree of discretion the Court allows states when they infringe upon a right/freedom. Whether the Court grants this may depend factors including

• whether an infringement touches on the core (narrow margin) or penumbra (wider margin) of a right

• the existence of a European consensus

The ECtHR recognises that domestic courts are at time better placed to assess local needs, morals and social conditions.

What rights are protected?

Qualified Rights:

• right to life (Article 2),

• liberty and security (Article 5),

• private and family life (Article 8),

• freedom of thought, conscience and religion (Article 9),

• expression (Article 10),

• assembly (Article 11),

• property (Article 1 Additional Protocol I)

Absolute Rights:

• prohibition on torture (Article 3),

• slavery and forced labour (Article 4),

• no punishment without law (Article 7)

• abolition of the death penalty (Article 1 Protocol XIII)

Procedural Rights:

• fair trial (Article 6),

• effective remedy (Article 13)

Addon Rights:

• prohibition on discrimination in the enjoyment of rights and freedoms (Article 14)

Who can bring a case?

Article 33: Any contracting state can make an application for any alleged breach by another contracting state

• Ex: Ireland v UK

Article 34: Any person, NGO or group of individuals claiming to be the victim of a violation by one of the contracting states

• Regulated by requirements of victimhood:

• Not possible to bring an abstract claim for something that hasn’t or isn’t proposed to be done to you

• Individuals must be directly affected by state (in)/action

• May be a potential and future violation (Ex: Soering)

• Victimhood is an autonomous concept interpreted independently from domestic legal concepts

What are interim measures?

Rule 39 Rules of Court: Court may (at the request of a party or of its own motion) indicate to the parties any interim measure which it considers should be adopted. Such measures are applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature would not be susceptible to reparation, restoration or adequate compensation.

Threat of imminent deportation: NSK v UK

• Iraqi asylum seekers challenged UK asylum partnership with Rwanda and their imminent removal to Rwanda. Court issued an interim measure that prevented removal until 3 weeks after a final domestic decision

Threat of imminent execution: Pinner v Russia and Ukraine

• UK nationals who joined Armed Forced of Ukraine surrendered to Russian forces and were sentenced to death by Donetsk People’s Republic. Court issued interim measure requiring Russia to prevent death penalty execution and ensure conditions of detention and necessary medical assistance are provided

McCann v UK

• Intelligence suggested a team of known provisional IRA members were planning a (car) bombing in Gibraltar

• Fearing that they were reaching for their detonators, special forces shot the PIRA members

• It tuned out that they were on a reconnaissance mission and their car had no explosives, nor did they have any detonators

Outcome

• Violation of Article 2 because the UK failed to take alternative steps (ie, preventing suspects from travelling into Gibraltar, making allowances for possibility that their intelligence assessments could be erroneous) and as a result the Court was not persuaded that killing the 3 terrorists constituted proportional force to the threat presented.

• Special forces not held to blame because they were placed in a situation where the only response was to shoot

Liberty and others v UK

• Applicants claimed that between 1990 and 1997, their telephone and electronic communications had been intercepted by the UK government

• Challenges between domestic courts were unsuccessful so they moved on to ECtHR alleging violation of Art 8

Outcome

• Court held that there was not a sufficient basis in domestic law for the infringement

Soering v UK

• Son of a German diplomat based in US and accused for the murder of his girlfriend’s parents in Virginia

• Arrested for cheque fraud in the UK (after fleeing) and faced extradition to US

• Death penalty was available as his sentence - prosecutor wanted to seek it and refused to offer any assurances in the UK against seeking it

• Applicant claimed extradition would result in a breach of Article 2 and Article 3

(protocol 6, abolishing the death penalty as a ground for justifying an Article 2 infringement not yet signed by UK until the next year 1999 so not in force)

Outcome

• Violation of Article 3 because of the long period of time spent on death row amounted to inhuman and degrading treatment