HR - ECHR overview

What organisation established the European Convention on Human Rights?

The Council of Europe.

What does ECHR stand for?

The European Convention on Human Rights.

When did the United Kingdom ratify the European Convention on Human Rights?

The United Kingdom ratified the ECHR on 4 November 1950.

When did the European Convention on Human Rights come into force?

The ECHR came into force on 3 September 1953.

Into how many sections is the European Convention on Human Rights divided?

The ECHR is divided into three sections.

What does Section I of the European Convention on Human Rights contain?

It contains the substantive rights and freedoms protected by the Convention.

What obligation does Article 1 ECHR impose on contracting states?

Contracting states must secure to everyone within their jurisdiction the rights and freedoms defined in the ECHR.

Which ECHR provisions principally list the protected rights and freedoms?

Articles 2–14.

What do Sections II and III of the European Convention on Human Rights contain?

They contain procedural provisions governing the operation of the ECHR.

Which ECHR provisions principally address the Convention’s procedural operation?

Articles 19–57.

What are the three broad categories of ECHR rights incorporated through the Human Rights Act 1998?

Absolute rights, limited rights and qualified rights.

What is an absolute ECHR right?

An absolute right is one with which the state cannot legitimately interfere.

Which ECHR right prohibits torture and inhuman or degrading treatment or punishment?

Article 3.

What does Article 3 ECHR protect against?

Torture and inhuman or degrading treatment or punishment.

Can the state legitimately interfere with Article 3 ECHR?

No. Article 3 is an absolute right.

Which ECHR provision prohibits slavery and forced labour?

Article 4.

What does Article 4 ECHR prohibit?

Slavery and forced labour.

To what modern issue may Article 4 ECHR apply?

Human trafficking.

Which ECHR provision establishes that there shall be no punishment without lawful authority?

Article 7.

What does Article 7 ECHR protect against?

Punishment without lawful authority, particularly retrospective criminalisation and punishment.

What is retrospective criminalisation under Article 7 ECHR?

Treating conduct as criminal after it was committed when it was not criminal at the time.

What is retrospective punishment under Article 7 ECHR?

Imposing a criminal penalty retrospectively without lawful authority existing when the conduct occurred.

What is a limited ECHR right?

A limited right is one that may be interfered with only in the particular circumstances prescribed within the relevant Article.

Which ECHR rights are identified in the notes as limited rights?

Articles 2, 5 and 6.

What right is protected by Article 2 ECHR?

The right to life.

What right is protected by Article 5 ECHR?

The right to liberty and security of person.

What right is protected by Article 6 ECHR?

The right to a fair trial and fair legal process.

What is a qualified ECHR right?

A qualified right may be interfered with where the state satisfies the prescribed legal and proportionality requirements.

What three requirements must generally be met for legitimate interference with a qualified ECHR right?

The interference must be prescribed by or in accordance with law, pursue a legitimate aim, and be necessary in a democratic society.

What does it mean for interference with a qualified ECHR right to be “prescribed by law”?

The interference must have a lawful basis and comply with the relevant law.

What does the legitimate-aim requirement ask in relation to a qualified ECHR right?

It asks whether the interference pursued an aim recognised as capable of justifying restriction of the right.

What does “necessary in a democratic society” mean when restricting a qualified ECHR right?

The interference must be proportionate.

Which ECHR provision protects respect for private and family life?

Article 8.

What does Article 8 ECHR protect?

The right to respect for private and family life.

Which ECHR provision protects freedom of thought, conscience and religion?

Article 9.

What does Article 9 ECHR protect?

Freedom of thought, conscience and religion.

Which ECHR provision protects freedom of expression?

Article 10.

What does Article 10 ECHR protect?

Freedom of expression.

Which ECHR provision protects freedom of assembly and association?

Article 11.

What does Article 11 ECHR protect?

Freedom of assembly and association.

Which ECHR provision applies to derogations?

Article 15.

What is the function of Article 15 ECHR?

It governs derogations from certain Convention obligations.

Which ECHR provision applies to reservations?

Article 57.

What is the function of Article 57 ECHR?

It governs reservations made by contracting states.

What court supervises compliance with the European Convention on Human Rights?

The European Court of Human Rights.

What does ECtHR stand for?

The European Court of Human Rights.

What duty does section 2 of the Human Rights Act 1998 impose on UK courts?

UK courts must take relevant ECtHR case law into account when interpreting ECHR rights.

Must UK courts consider the principles developed by the European Court of Human Rights?

Yes. Section 2 HRA requires them to consider relevant ECtHR case law and principles.

What key ECtHR principles are identified in the notes?

Positive obligations, the margin of appreciation and proportionality.

What is a negative human-rights obligation?

It is the state’s primary duty to abstain from interfering with protected rights.

What is a positive human-rights obligation?

It is a duty on the state to take action to prevent or respond to Convention violations, including violations by private individuals.

How may a state satisfy a positive obligation concerning private wrongdoing?

By enacting and applying laws that prohibit, deter and punish conduct violating Convention rights.

Can the ECHR require a state to protect individuals from non-state actors?

Yes. Positive obligations may require protection against violations committed by private individuals.

What did X and Y v The Netherlands establish about positive obligations under Article 8 ECHR?

X and Y v The Netherlands held that the state breached Article 8 by failing to provide an effective criminal sanction for the sexual assault of a child with learning difficulties.

What factual gap in criminal law caused the breach in X and Y v The Netherlands?

The absence of a specific criminal sanction allowed the offender to evade conviction for the sexual assault.

Which Convention right was breached in X and Y v The Netherlands?

Article 8 ECHR.

What positive obligation may Article 2 ECHR impose concerning criminal acts by private individuals?

The state may have to take preventative operational measures to protect a person whose life is at real and immediate risk.

What test applies to the positive operational duty to protect life under Article 2 ECHR?

The authorities must have known or ought to have known of a real and immediate risk and failed to take measures within their powers that might reasonably have avoided it.

What level of risk is required to trigger the Article 2 operational duty?

A real and immediate risk to life.

Must the authorities actually know of the risk for the Article 2 operational duty to arise?

No. It is sufficient that they knew or ought to have known.

What type of preventative measures does the Article 2 operational duty require?

Measures within the authorities’ powers that might reasonably have avoided the risk.

Is the Article 2 positive obligation unlimited?

No. It must be balanced against imposing an excessive burden on public authorities.

What did Osman v United Kingdom establish about the positive duty to protect life?

Osman v United Kingdom held that no Article 2 breach occurred because the police could not have known that the Osman family faced a real and immediate risk to life.

Why was there no Article 2 breach in Osman v United Kingdom?

The police did not know, and could not reasonably have been expected to know, that the family’s lives were at real and immediate risk.

What positive obligation may Article 2 impose in a healthcare context?

Healthcare authorities may have to take reasonable steps to protect a patient from a known or foreseeable risk to life.

What did Rabone v Pennine Care NHS Trust establish under Article 2 ECHR?

Rabone v Pennine Care NHS Trust held that a hospital breached Article 2 by failing to detain a suicidal patient whose life was at real and immediate risk.

Why did the NHS trust owe a positive Article 2 duty in Rabone?

The trust had assumed responsibility and control over the patient after admitting her while she faced a suicide risk.

What measure should the hospital have taken in Rabone v Pennine Care NHS Trust?

It should have detained the patient under the Mental Health Act 1983 when she insisted on leaving.

What harm materialised in Rabone v Pennine Care NHS Trust?

The patient died by suicide after leaving the hospital.

Which court decided Rabone v Pennine Care NHS Trust?

The UK Supreme Court.

Can Article 8 ECHR impose positive obligations relating to climate change?

Yes. States may be required to adopt and apply measures capable of mitigating existing and potentially irreversible future climate effects.

What did Verein KlimaSeniorinnen Schweiz v Switzerland establish under Article 8 ECHR?

Verein KlimaSeniorinnen Schweiz v Switzerland recognised a positive duty to adopt and apply effective regulations and measures addressing climate change.

What was the focus of the positive climate obligation in Verein KlimaSeniorinnen Schweiz?

The state’s commitment to adopting and applying effective mitigating measures rather than prescribing one specific method.

Which court decided Verein KlimaSeniorinnen Schweiz v Switzerland?

The European Court of Human Rights.

What is the margin of appreciation?

It is the discretion allowed to contracting states when deciding how to protect or restrict Convention rights within their local context.

Why are contracting states given a margin of appreciation?

National authorities generally have better knowledge of local conditions, needs and values than an international court.

Which institutions have primary responsibility for protecting ECHR rights?

The contracting states and their domestic authorities.

What role does the European Court of Human Rights play under the margin-of-appreciation doctrine?

It has a subsidiary role in protection and an ultimate supervisory role in deciding whether state action complies with the Convention.

What does it mean to say that the ECHR system is subsidiary?

Domestic authorities bear primary responsibility for protecting rights, while the ECtHR supervises compliance.

What two considerations must be balanced under the margin-of-appreciation doctrine?

The superior local position of national authorities and the ECtHR’s responsibility to ensure compliance with the Convention.

Why may national authorities be better placed than the ECtHR to assess a restriction?

They are better placed to assess the exact local requirements and necessity of the restriction or penalty.

What remains the ECtHR’s responsibility despite the margin of appreciation?

It must ensure observance of the Convention and give the final ruling on whether a restriction is compatible with the relevant Article.

What did Handyside v United Kingdom establish about the margin of appreciation?

Handyside v United Kingdom explained that domestic discretion goes hand in hand with European supervision.

Which Convention right was considered in Handyside v United Kingdom?

Article 10 freedom of expression.

In which areas do states generally receive a broader margin of appreciation?

Morality and religion, public emergencies, national security, and social, economic and environmental policy.

Why may states receive a broader margin in matters of morality and religion?

These matters often depend heavily on local values and social conditions.

Why may states receive a broader margin in national-security cases?

Domestic authorities are generally considered better placed to assess local security needs and risks.

Why may states receive a broader margin in social and economic policy?

Such decisions often involve broad policy choices and allocation of resources.

When is a narrower margin of appreciation generally applied?

Where measures significantly affect individual rights such as identity, existence, liberty or legal rights.

Does the European margin-of-appreciation doctrine apply directly in domestic Human Rights Act cases?

No. It applies to ECtHR supervision of contracting states, not as a domestic UK doctrine under the HRA.

What principle performs a related role in domestic UK human-rights cases?

Domestic courts apply proportionality rather than the European margin of appreciation.

What is proportionality under the ECHR?

It is the balancing of the community’s interests against an individual’s fundamental rights.

Which case is identified with the general principle of proportionality under the ECHR?

Soering v United Kingdom.

What did Soering v United Kingdom establish about proportionality?

Soering v United Kingdom recognised the need to balance the general interests of the community against the protection of individual fundamental rights.

Is proportionality applied identically under every ECHR Article?

No. It is multi-faceted and operates differently depending on the Article concerned.

In which ECHR rights is proportionality expressly built into the interference test?

The qualified rights in Articles 8–11.

How does proportionality feature under Article 2 ECHR?

It forms part of the test for whether state action affecting the right to life is justified within the Article’s limited exceptions.

How does proportionality relate to Article 6 ECHR?

It provides a standard for assessing whether limitations on fair-trial rights are justified.

What broad question does proportionality ask in an ECHR case?

Whether the state has struck a fair balance between its legitimate objective and the individual’s protected right.

How do positive obligations and proportionality interact?

The court must balance the need for effective protection of rights against the risk of imposing an excessive burden on the state.