Summary
Summary SQE1 | HUMAN RIGHTS
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INTRODUCTIONABSOLUTE RIGHTS 2,3,4,7 No derogation is permitted
LIMITED RIGHTS 5,6,12 Derogation is permitted during a
public emergency
QUALIFIED RIGHTS 8,9,10,11,15 Derogation is permitted under
much wider terms of the article
itself.
Contracting states can derogate from ECHR and the protocols under the following conditions:
a) there is a public emergency threatening the life of the nation
b) The measure is strictly required by the exigencies of the situation
c) The measure is consistent with any other obligations under international law
d) There has been timely written notification to the Secretary-General of the Council of Europe
Derogation orders are secondary legislation and can be struck out by domestic courts.
EUROPEAN COURT OF HUMAN RIGHTS
- it confers on individuals the right of petition, once domestic remedies have been exhausted
- The judgements are not binding on national courts, they are binding on national governments.
However, the ECtHr does not prescribe the remedy or how it should be implented ; the
necessary steps must be taken by the national authority to remedy the circumstances that led
to the judgement
The following conditions must be satisfied before individuals may bring a complaint directly to the
ECtHR about an alleged convention breach:
1. The compliant must be founded on a right mentioned in the convention or its protocols
2. It must have been committed by a public authority
3. Applicants must have directly suffered the violation of which they are complaining
4. Applicants must have exhausted all domestic remedies before applying to the ECtHR
5. Applications must be submitted no later than 6 months after the final decision by the highest
competent national authoirty
The convention distinguishes between two kinds of application to the ECtHR:
A) inter-state applications under Art.33
B) Applications from individuals under Art.34
• The complaining person need not be a citizen or even be domiciled in the contracting
state being complained against
• Class action suits are not permitted
The ECtHR scrutinises the facts and decides whether the application fulfils the essential criteria
contained in the Convention. If these are not established, the application will be rejected. The
decision on admissibility is final and is not subject to appeal.
• Initially examined by a single judge who may declare the case inadmissible or strike out
the application, where such a decision can be taken without further examination
, • if the single judge does not declare an application inadmissible or strike it out, that judge
shall forward it to a Committee who, by a unanimous vote, may declare it inadmissible or
strike it out, where such decision can be taken without further examination, or declare it
admissible and render at the same time a judgment on the merits, if it is already the
subject of well- established case-law of the court.
•
Doctrine of positive obligations -> A contracting state may still be open to a claim if it did
not take steps to prevent violations.
CASE FACTS CONCLUSION
a man was able to sexually If the contracting state did
assault a mentally impaired not have adequate
girl and he could not then domestic legislation in
be convicted because the place to deter violators, it
X & Y v Netherlands Netherlands did not have would in breach.
laws in place to ensure his
conviction.
This doctrine is only applied in relation to specific convention rights (art.2 and art 8).
ENFORCEMENT
The committee has a number of options open in order to enforce judgements:
- adopt interim resolutions
- Set provisional timetable forthe changes to be underaken
JUDICIAL PRINCIPLES
PRINCIPLE
Contracting states may restrict convention rights based on poltical,
social and cultural traditions with which they are likely to be more
MARGIN OF
closely attuned. It describes those cases where Strasbourg recognises
APPRECIATION that the domestic authorities are in the best position to decide on
measures in a particular area.
It is designed to give respondent states autonomy of choice vis a vis
SUBSIDIARITY the method by which they meet their obligations under the ECtHR.
It only affects ECtHR when it is appropraite to introduce a legislative
measure at EU level. It is a search for a fair balance between the
PROPORTIONALITY demands of the general interest of the community and requirements of
the protection of the individual’s fundamental rights.
If the court finds that there have been violations of the Convention, the
JUST SATISFACTION court shall if necessary afford just satisfaction to the injured party.
PURPOSIVE The ECtHR must be intepreted as a living documents.
INTERPRETATION
It can neither quash decisions of national courts nor repeal laws of
national governments. It does not intervene directly in aid of individual
RULINGS AND EXECUTION complainants with the national authority which is the subject of the
complaint.
- 47 judges -> one for each contracting state
- They are elected from nominees proposed by national authorities
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