Principles of Human Rights/the European Convention and Court

Principles and Origins

Social contractarianism origin of rights based society. Developed in 17th and 18th Cs eg Locke. In
return for receiving protection of state, citizens accepted restrictions on their lives, provided the state
upheld certain values. Impetus for French and American revolutions.
Importance of human rights came to fore after WWII, expressed in United Nations Universal
Declaration of Human Rights.
European Convention for the Protection of Fundamental Rights and Freedoms drafted in 1949 and
agreed through the Council of Europe.
Agreed and ratified in 1950. Many social rights not included, while rights relating to property and
education later incorporated.
Convention v US Constitution E less emphasis on importance of individual freedom, stronger
recognition of need for government to interfere (necessary in democratic society).
Mainly civil and political, though now more circs where economic and social rights can be asserted
through the ECHR.
Majority rule balanced by human rights.

Structure and Institutions of the European Convention

Means of enforcement through judicial structure. Largely designed to allow one signatory state to lay a
complaint against the other eg Denmark v Greece (1969) Art 5 of Danish citizens infringed by
Greece. Individuals must now also be allowed to bring petitions (Art 34 ECHR). Convention
established 3 bodies to monitor and enforce where it could:
The European Commission of Human Rights (abolished 1998)
The European Court of Human Rights
The Committee of Ministers
Now a single court which deals with all applications from the start. Bodies enforcing and supervising
the Convention still come under auspices of the Council of Europe.

Jurisdiction and right to claim

ECHR applies to anyone within territory of state which has ratified the Convention (may include
territories for which theyre responsible).
Art 1 not dependent on nationality or status.
ECHR requires applicant to exhaust all domestic remedies before apply to ECtHR and apply within 6
months of exhausting the national remedies. Only applies to actually available remedies, so where legal
aid refused fro an appeal, that appeal is not available.
Claim must be brought by victim (includes companies) ie not by pressure groups.
Dudgeon v UK homosexual was victim even though had not been prosecuted. Threat of prosecution
enough to breach Art 8 right to private life.

Principles of interpretation of the Convention

Object and purpose
As a treaty, Convention interpreted by ECHR in light of its object and purpose (protection of
individual rights).
Effectiveness principle
Not theoretical and illusory, but practical and effective. Broad, purposive interpretations.
Airey v Ireland No right to legal aid under Art 6, but requirement read in so practical & effective.
Autonomous concepts
Interpretation of Convention terms independent of jurisprudence of legal systems of Contracting states,
so states cannot undermine efficacy of C rights.
Umlauft v Austria Refused breath test Art 6(1) applied despite charge not criminal under Austrian
law (administrative sentence order). Nature of conduct and penalty imposed looked at.
Living Instrument
Will review concepts and decisions in light of social change.
Tyrer v UK juvenile sentenced to be birched. Inhuman and degrading punishment contrary to Art 3
as was 1976, not 1950s.
Selmouni v France (2000) dragged along by hair, beaten up, threatened, made to run down corridor
where was tripped up. Deemed to = torture Art 3. Ireland v UK (1979-80) would prob be decided
differently today (inhuman interrogation techniques).
Own decision reversed on whether trans-sexuals have right to marry and associated rights under Art 8.
Denied in Cossey v UK and Sheffield & Horsham v UK as recently as 1998. Reversal in Goodwin & I v
UK (2002): the Court must have regard to changing conditions within the respondent State and within
Contracting States generally and respond.
UK since passed Gender Recognition Act 2004 to conform to change in law.
Margin of Appreciation
Hard for central court to reach decision which correctly reflects values in signatory states in 2 mains:
i) Where issue at hand is primarily moral, social or ethical, rather than political eg
Handyside, Otto-Preminger court deferred to individual states
ii) Re derogations under Art 15. Brannigan court accepted UK authorities better informed
and able to assess what situation required.
Relates predominantly to qualified rights. Strasbourg will exercise restraint when judging actions of
national govs = more or less area of freedom of action and exercise of executive discretion for states.

Types and classification of Convention rights 3 separate classes

Unconditional rights eg Art 3. Can never be infringed. Issue only of interpretation (UK v Ireland).
Conditional rights eg Art 2 right to life stated unconditionally, but specific circs set out in which it
is considered that the state has not infringed the right.
Qualified rights eg Art 10 broad right, broad restriction. In determining if has been infringed,
consider specific text of Art, though 4-stage test often used:
i) Is there, prima facie, an infringement of the right?
Close examination of scope and rationale of right
ii) Is the infringement prescribed by law?
ie imposed by clear and accessible legal rule. Malone v UK internal code of conduct governed phone
tapping no law allowing it, so infringement not prescribed by law.
Hashman and Harrap v UK Common law power to bind over to be of good behaviour was
insufficiently certain to count.
iii) Is the restriction imposed for one of the specified aims in the Article?
Read article. Eg Art 9 right to manifest religion or belief subject to restrictions imposed only in
interests of public safety, protection of public order, health or morals etc
iv) Is the restriction necessary in a democratic society?
Articulated in Sunday Times v UK:
Did the interference correspond to a pressing social need?
Was it proportionate to the legitimate aim pursued? (sledgehammer used to crack a nut?)
Were the reasons given by the national authority relevant and sufficient?
Handyside v UK publisher of Little Red Schoolbook successfully prosecuted under Obscene
Publications Act due to sex and drugs passages. H tried to use Arts 10, 14, 18 ECHR. UK restriction on
Art 10 allowed - public morals at risk. Art 10 one of most important in democratic society, but book
went too far.

Convention rights further issues

Vertical and horizontal effect Convention has vertical effect. No direct horizontal effect, but could
be indirect eg A v UK CA subsequently rewrote common law no reasonable chastisement.
ECHR has been interpreted so as to impose positive obligation on states eg Platform Aertze fr das
Leben v Austria Art 10 Gov not done enough to allow this.
Conflicting rights eg Hello v Douglas and Otto-Preminger Anstalt v Austria film offensively
satirising aspects of Catholicism banned in Austria.
Derogations
Permitted by Art 15, applies to only certain rights (eg not Arts 2 & 3).
Brogan v UK detention under anti-terrorist legislation for up to 6 days breached Art 5. UK said
necessary on security grounds.
Brannigan v UK derogation
Specific convention rights
Right to life (Art 2) negative right to life established. State must show death caused by its agents is
within limits of exceptions to right to life McCann, Farrell & Savage force necessary to protect
others.
Positive duty to protect life state under duty to investigate deaths and must do all thats reasonably
expected to avoid loss of life eg Osman v UK.
Freedom from torture (Art 3) unqualified right. High threshold deliberate inhuman treatment
causing very serious and cruel suffering. Includes inflicting mental suffering eg Ireland; Selmouni.
Take into account age, gender and other features of victim.
Inhuman activity is a step below. Applies to extradition where fate awaiting victim will be inhumane
Soering v UK. If breach anyway, state will still argue whether torture or not, given the opprobrium.
Degrading treatment or punishment the most flexible concept.
Liberty and security (Art 5) often read with right to fair trial (Art 6)
Liberty can only be withheld in defined circs & by judicial process which respects national and ECHR
standards - Winterwerp v Netherlands.
Role of Home Secretary in sentence confirmation and parole held to contravene Art 5 Thompson &
Venables v UK; R v SSHD ex parte Anderson.
Must be prompt hearing. Length depends on nature of charge. Brannigan 4-6 days.
Art 6
Only applies to criminal matters and civil rights. Also demands prompt trial. Trial must be open and
public (unless in interests of others). Independent and impartial tribunal. Certain principles of fairness
in respect of proceedings have been developed by the ECtHR:
No self-incrimination strong presumption but not absolute right eg Saunders v UK.
Equality of arms
Presumption of innocence and burden of proof - Salabiaku v France can reverse within
reasonable limits
Privacy (Art 8)
Covers right to privacy, family life, freedom from search of home, dignity, autonomy, freedom from
intrusion. Seems to confer positive obligation Douglas v Hello.
Sexual activity also covered (Dudgeon). Smith and Grady v UK: gay Cs dismissed from RAF. ECtHR
found legitimate interference with Art 8 (national defence), but government fell down on: not necessary
in a democratic society.
Environmental issues Hatton v UK.
Interception of communication Halford v UK calls from office fell within 8(1). Denied effective
domestic remedy breach of Art 13.
Freedom of expression (Art 10)
Right is heavily qualified. Narrow margin of appreciation.
Hierarchy of types of expression established by ECtHR:
Political speech. Powerful aspect of democracy, provides informed debate.
Eg Sunday Times v UK not necessary in democratic society to find article on Thalidomide in
contempt.
Other social expression subject to wider margin eg Otto-Preminger, Handyside.
Commercial expression and expression which involves press intruding into private lives of
individuals has the least protection.
Freedom of association (Art 11)
Wilson & Others v UK UK govs failure to require employers to recognise trade unions breach Art11.
Free enjoyment of property (Protocol One, Art 1)
Heavily qualified. Sporrong & Lonnroth v Sweden Sweden exercising excessive control over land
ordering form of compulsory purchase.
James et al v UK gov brought in option to buy houses beneath market value. Not breach, as trying to
eliminate social justice. Necessary in democratic society.
Prohibition on discrimination (Art 14)
Rights shall be enjoyed without discrimination, but is not a free-standing right against discrimination
does not guarantee equal treatment. To show it has been infringed, must show facts of case come
within scope of another Art 14??? Eg Abdulaziz and others v UK: breach of Art 8 for women not to be
able to bring husbands with them, when H could bring Ws. NO, as immigration rules needed in
democratic society, but this infringed Art 14 as was discrimination.