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38 Cards in this Set
- Front
- Back
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What are the 2 different ways an case can be brought before the ECt HR?
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1) Inter-state cases: Article 33 ECHR: Any high-contracting party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High-contracting party.
2)Individual Applications: Article 34 ECHR: The court may receive applications form any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting parties of the rights set forth in the convention. |
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How many hurdles of admissibility are there?
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8
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What is the first hurdle of admissibility?
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1) Domestic remedies must be exhausted- the state must prove that a remedy does exist to stop the claim, and the individual must prove that it doesn't or would be ineffective.
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What are not excuses for not exhausting domestic remedies?
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-Ignorance of an effective remedy
-Faulty legal advice -Insufficient means/resources -doubts about success of the remedy |
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What IS an excuse for not exhausting a domestic remedy?
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If the remedy would not be effective i.e. if there appears to be no chance of it being effective on legal opinion/it is a repetition of a previous complaint that the state has not remedied.
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What are the relevant cases for exhaustion of domestic remedies?
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-Selmouni v France
-Akdivar v Turkey |
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What is the second hurdle of admissibility?
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The application must be submitted within 6 months of the final domestic decision.
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What is the reason for the time constraint?
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State parties must not be left in uncertainty about whether or not they are in violation.
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What is the third hurdle of admissibility?
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The complaint must not be anonymous.
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What if the fourth hurdle of admissibility?
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The application must not be the same as one already submitted- not factually the same- new facts would make it admissible.
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What is the fifth hurdle of admissibility?
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It must not be an abuse of the right of application (RARELY USED)
e.g. if the applicant is consistently abusive or the application if intentionally misleading. |
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What case concerns the abuse of right to application?
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Mcfeely- had it been purely to make a political propaganda point, it would have been likely to have been dismissed.
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What is the sixth hurdle of admissibility?
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The application must not be manifestly ill-founded- the facts must evidently show a violation.
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What happened in the case of Pendragon v UK
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-a group were banned from holding a ceremony at stonehenge, the question was whether it violated the ECHR? They were allowed 20 people- this was seen as necessary to prevent disorder- therefore the state was not in breach.
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What is the seventh hurdle of admissibility?
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The application must be compatible with the terms of the convention.
a)The applicant must be a victim and the defendant must be a state party to the ECHR. b)The facts must be within the time period for which the state ha accepted the obligation, but continuing obligations may be considered even though they began before. c)It must be with respect to the territorial area accepted by the state. d)The right claimed to be violated must be one protected by the ECHR. |
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What are the consideration surrounding a "victim?"
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-There is no requirement of citizenship- Ahmed v Austria.
-There can be a violation of a right without the victim suffering an actual detriment. |
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What is the eighth hurdle of admissibility?
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The applicant must have suffered a significant disadvantage.
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What are the 3 practical hurdles to bringing a case?
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1) Time/delay
2)Cost 3) Effect of backlog. |
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What is the margin of appreciation doctrine?
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The doctrine that allows the European Court on Human Rights to give a degree of discretion to the member states, as to the measures needed to protect a particular interest
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What happened in the case of Handyside v UK?
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-The case concerned freedom of expression under article 10 ECHR.
-The little red school-book contained chapters on masturbation, sex and abortion and was prosecuted in the UK for encouraging early sex. -The ECHR held that in cases concerning the protection of morals, 'state authorities are in a better position than the international judge to give an opinion on the 'necessity' of a 'restriction' or 'penalty.' -They held that any restriction must be 'proportionate to the legitimate aim pursued.' -A WIDE MARGIN OF APPRECIATION was granted to the state, and the court subsequently found that there had been no breach of article 10. |
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What happened in Sunday Times v UK?
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-The court observed that "state authorities are in a better position than the international judge to give an opinion on the exact content of the requirements of morals."
-Furthermore, a law must be "formulated with sufficient precision to enable the citizen to regulate his conduct. He must be able to foresee, to a degree that is reasonable in all the circumstances, the consequences that a given action may entail." |
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What happens during the court hearing?
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-The procedure consists of a written stage followed by an oral hearing.
-There is a degree of flexibility, within the rules, the court is free to decide on a procedure which can be tailored to the nature of a particular application. |
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What remedies are available if a case is successful?
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1) Under article 41 of the convention, the court can award compensation. The purpose is to put the applicant in the position he would have been in had the violation not taken place.
-Compensation may include costs (unless received legal aid), loss of earnings, travel costs, fines and costs unjustly awarded against the applicant. Also available for non-pecuniary loss such as loss of opportunities, unjust imprisonment, stress or loss of personal integrity. |
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What does the Committee of Ministers do?
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Under article 46, it is charged with supervising the execution of the Court's judgement- on merits and compensation
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What are the 6 ABSOLUTE convention rights, of which there is no lawful justification for infringement?
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Article 3- freedom from torture.
Article 4- freedom from slavery Article 6- right to a fair trial Article 7- non-retroactivity in criminal law Article 13- right to a domestic remedy Article 14- freedom from discrimination (only operates in the context of another right) |
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What 2 rights are subject to specified, narrow limitations?
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Article 2- right to life- the only exceptions are if lethal force is no more than "absolutely necessary" in the 3 specified situations which are to be strictly construed.
Article 5- right to liberty- specific exceptions include lawful imprisonment, detention for deportation purposes etc. (any restrictions must be "prescribed by law" and fall into one of the specified categories of exceptions) |
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Which rights are subject to a range of general exceptions?
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Article 8- right to respect for private and family life.
Article 9- freedom of though, conscience and religion. Article 10- freedom of expression. Article 11- freedom of peaceful association and assembly. |
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What are the general exceptions to articles 8-11?
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National security, protection of health or morals, prevention of crime or disorder, protecting the rights of others and public order. NOTE- ONLY THE FREEDOM TO MANIFEST RELIGIOUS BELIEFS IS RESTRICTED, THE RIGHT TO FREEDOM OF THOUGH, CONSCIENCE AND RELIGION IS ABSOLUTE.
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What are the stages that must be fulfilled to justify and interference with article 8-11 rights?
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1) The interference must be "prescribed by law"
2) It must serve a "legitimate aim" 3) It must be "necessary in a democratic society" to restrict the right. This is broken down into a) Was there a "pressing social need" and b) Did the action go further than necessary? (application of the proportionality test) |
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Which right is subject to the broadest exception of all?- Strasbourg will not interfere unless the national laws destroy the essence of the right.
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Article 12- the right to marry.
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What is necessary for the fulfilment of the prescribed by law test?
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-The national law must allow the interference.
-The law must be of a certain quality- sufficiently clear and precise to allow the regulation of conduct. -It must not create the 'chilling effect'- citizens must know what they are allowed to do/say. |
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What cases show the application of the 'prescribed by law' test?
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Sunday Times v UK- a law must be formulated with 'sufficient precision to enable the citizen to regulate his conduct.'
Hashman v Harrup- the "prescribed by law" test was failed as the law was unsatisfactory/not sufficiently clear. -The court found that the behaviour of the protesters was 'contrary to a good way of life', which the ECtHR held was TOO BROAD. |
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Is the prescribed by law test usually easily met?
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Yes.
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What is necessary to fulfil the requirement of a 'legitimate aim?'
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The interference must fulfil one of the aim's set out in the convention article i.e. protection of morals/national security etc.
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Which cases display examples of a 'legitimate aim?'
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Handyside v UK- the aim was the protection of morals.
Otto-Preminger- the aim was to protect the rights of others/religious rights of others. |
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What is required for an action to be 'necessary in a democratic society?'
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a) There must be a 'pressing social need' to interfere
b) The interference must satisfy the test of proportionality. |
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Which case implies the existence of a pressing social need?
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Sunday Times v UK
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What would make a measure disproportionate?
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If it went further than was necessary to achieve the aim. The question that must be asked, is whether a less intrusive measure could have achieved the same aim.
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