This outline summarises all content from a first year Law module on Rights and Accountability. It includes key cases with full references, tables for visual aids and bullet pointed lists to make information easy to read.
Absolute rights = cannot be legally departed from e.g. Article 3; prohibition of torture
Qualified rights = can be legally departed from e.g. Article 2; right to life
UN established post-WW2 to help foster peace and promote cooperation
● Universal Declaration of Human Rights 1948
ECHR 1953
● full title: Convention for the Protection of Human Rights and Fundamental
Freedoms
● Drafted by Council of Europe
● 47 contracting states, covering 800 million people
● Intended to serve as an alarm for future HR violations
The ECtHR
No relation to the CJEU (EU law only)
This court can receive applications from any individual, NGO or organisation claiming to
be a victim of an HR violation
Note: all domestic remedies must be exhausted first
Section 1 contains the most basic civil & political rights found in the UDHR
Outline of rights
Article 1: obligation to respect human rights
Article 15: derogation in times of war
In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this
Convention to the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under international law.
The Living Instrument Doctrine
Interpretation of convention rights - societies’ values change over time, which can lead
to controversy between states’ w/regards to interpretation of convention rights
It should be interpreted from a modern perspective due to the amount of change society
has undergone in the past decades e.g. different views on religion, gender, sexuality,
race
,Golder v United Kingdom [1979-80]
Golder was imprisoned for 15years, and once in prison denied access to legal
representation by the Home Sec
Golder argued - this was an unlawful breach of his fair trial rights
UK argued - the right to a fair trial did not constitute the right to access to a trial
ECtHR held in Golder’s favour
Tryer v United Kingdom [1978]
Isle of Man was still practicing corporal punishment in schools - complaint that ‘birching’
was a violation of Article 3 right (to not be tortured)
ECtHR looks at the values of all states collectively - this was widely seen as negative
Judgment - “the Court cannot but be influenced by the developments and commonly
accepted standards in the penal policy of the member States…”
Young, James and Webster v United Kingdom
British rail workers who declined to join a specific trade union as they did not agree
w/their political aims
Absolute Rights
Article 3: No one shall be subjected to torture or inhuman or degrading treatment of
punishment
● X in-built exceptions
● X degradation allowed
● Protects everyone regardless of conduct (Mavronicola 2012)
Ireland v UK 1978
14 suspected terrorists selected for ‘deep interrogation’
Held at Ballykelly army base for 7 days
5 techniques of sensory deprivation
● Hooding
● White noise
● Wall-standing in stress positions
● Sleep deprivation
● Food & water deprivation
1971, Ireland applied to ECtHR
Arts. 2,3,5,6 & 14 = basis of Ireland’s application
,ECtHR judgment
Art 3 violation downgraded to ‘inhuman and degrading treatment’ rather than torture
Art 5 & 6 derogations compatible w/Art 15 - derogation in times of emergency
The ‘Hooded Men’ & activists maintain that torture took place
2014: Irish gov requested revisial of judgment - Court refused
2018: Vs took a JR in the High Court
Gäfgen v Germany 2011
● D killed a child & delivered ransom note to parents
● Police (assuming V still alive) threatened D w/considerable suffering if he didn’t
reveal V’s location
● Gäfgen confessed & disclosed location of V’s body
● Confession x allowed as it was extracted under duress
● Evidence obtained at site declared admissible
● ECtHR: Art 3 violated, but not Art 6
Article 4 ECHR: prohibition of slavery & Article 7 ECHR: no punishment without
forced labour law
1. No one shall be held in slavery or No one shall be held guilty of any criminal
servitude offence on account of any act or omission
2. No one shall be required to which did not constitute a criminal offence
perform forced or compulsory under national or international law at the
labour. time when it was committed. Nor shall a
(NB; this does not include: work required heavier penalty be imposed than the one
to be done in the ordinary course of that was applicable at the time the
detention compatible with Article 5 ECHR; criminal offence was committed.
military service; any service extracted in
case of an emergency or calamity
threatening the life or well-being of the
community; any work or service which
forms part of normal civic obligations)
Qualified Rights
Article 10: Freedom of Expression
1. Everyone has the right to freedom of expression
2. May be curtailed ‘in the interests of national security, territorial integrity of public
safety’
, The Proportionality Test
Is there an interference with the right?
1. Does the measure pursue a legitimate aim?
2. Is the measure rationally connected to the legitimate aim?
3. Does the measure constitute the minimum interference necessary to attain the
legitimate aim?
4. Has a fair balance been struck between the rights of the individual and interests
of the community
Margin of Appreciation; mechanism which can keeps ‘a tight or slack rein … on state
conduct’ (Harris 2014, 17)
Handyside v UK 1979-1980
Right to private life
Gillan and Quinton v UK (2010) 50 EHRR 45
● On police powers to stop & search w/o reasonable suspicion for items which
could be connected with terrorism
● Yes; interference to right to private life
Dudgeon v UK (1982) 4 EHRR 149
● Criminalisation of homosexual acts in NI interfered w/private life
● ECtHR found interference unnecessary & not proportionate
Positive Obligations
- Duties to take action
- Most rights encompass both neg & pos obligations
O’Keefe v Ireland App no 35810/09 (ECtHR, 28 January 2014)
● Article 3: duty to protect children from and provide redress for sexual abuse
occurring in National Schools
Osman v UK (2000) 29 EHRR 245
● Article 2: in some circumstances there is a duty to take reasonable steps to
protect individuals from imminent risk to their life
Under Art. 2 & 3 ECHR, pos obligations include;
● Investigative duties
● Duties to enshrine & enforce laws
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