Public Law 2 (ECHR & POA) Cheat Sheet (DRAFT) by livjharrison

Contra­cting states cannot derogate from article 2.

Article 2 is not an absolute right.

............Invest­igative Duty...........

There should be some form of effective official invest­igation

The state has a duty to invest­igate all situations where agents of the state, e.g. instit­utions, cause a death.

Invest­iga­tions should be proact­ively pushed by a public authority and not on request.

..........Protec­t/P­reserve Life.........

This requires states to have criminal justice systems that punish and deter homicide.

State author­ities are only liable if they knew or ought to have known that there was a real and immediate risk to life, but failed to take reasonable steps, especially where there is assumed respon­sib­ility and control over the person.

The negative obligation that no one be subjected to torture and/or inhuman or degrading treatment is an absolute right.
Derogation is not permitted.

Only serious ill-tr­eatment or neglect falls within scope.

For a breach, the conduct of the state must be of a serious and wholly unacce­ptable kind.

Torture should be regarded as qualit­atively different from inhuman or degrading treatment or punish­ment.

............Positive Obligation...........

C can raise an article 3 claim where the author­ities knew or ought to have known of particular circum­stances likely to expose C to the risk of article 3 ill-tr­eat­ment.

UK has obligation not to deport on medical grounds, if there are substa­ntial grounds for believing C would face a real risk of being exposed to a serious, rapid and irreve­rsible decline in health resulting in intense suffering or a signif­icantly reduced life expectancy.

An operat­ional duty to conduct a proper invest­igation may fall upon the police.

It contains limited rights from which states can seek to derogate in emergency situations.

The cases cover circum­stances including criminal and immigr­ation arrest and detention.

Depriv­ation of liberty:

Restri­ctions on liberty will not engage article 5.

The type, duration, effects and manner of implem­ent­ation of the measure should be consid­ered.

Kettling:

Placing a cordon around a large crowd for several hours.

Kettling is not a depriv­ation if it is the least intrusive and most effective measure to avoid a real risk of serious injury or damage to property.

Control orders:

Anti-t­err­orism measures designed to control the movements and activities of certain indivi­duals

The periods of physical confin­ement should be consid­ered.

The Sunday Times test: The law must be
(i) adequately accessible (published);
(ii) suffic­iently precise to enable citizens to regulate their conduct; and
(iii) there must be a degree of forese­eab­ility with regards to the conseq­uences of such a violation.

The law must indicate with sufficient clarity the scope of any discretion conferred on the competent author­ities and the manner of its exercise.

A person may be deprived of liberty when lawfully arrested and detained on reasonable suspicion of having committed an offence.

Reasonable suspicion requires evidence of facts or inform­ation which would satisfy an objective observer that the person concerned may have committed the offence.

Previous convic­tions are not evidence enough.

.......5(2): Reasons.......

Simply informing someone that they are being arrested for something is not enough reason.

.......5(3): Length of Detention.......

A detention of 4 days and 6 hours after arrest of terrorism is too long.

Where a person is in preven­tative detention, the promptness should be a matter of hours rather than days.

A person deprived by arrest or detention is entitled to take procee­dings to decide the lawfulness of the detention speedily by a court.

This provides a right to review any detent­ion's lawful­ness.

.......5(5): Compen­sation.......

However, section 8 HRA provides a remedy in UK courts.

The rights and obliga­tions under article 6 do not always fall under one paragraph.

Scope:

A person has the right to a fair and public hearing within a reasonable time by an indepe­ndent and impartial tribunal establ­ished by law.

6(1) only refers to hearings, not necess­arily trials.

The applicant must have been charged with an offence.

Access to justice:

A person must be able to bring procee­dings and have access to profes­sional legal advice and repres­ent­ation.

The severity of the penalty at stake and the complexity of the case is relevant when consid­ering a person's access to justice.

The tribunal must be subjec­tively free of personal prejudice or bias.

Timely process:

Delays which jeopardise the effect­iveness and credib­ility of the admini­str­ation of justice should be avoided.

A delay of 20 months may not be excessive if there is a ongoing thorough invest­igation.

........6(1) & (3): Fair Legal Process.......

Article 6 may be applicable to the prelim­inary invest­iga­tions where the fairness of the subsequent trial could be prejudiced by an initial failure to comply, but ONLY where the suspect is eventually charged.

........6(1) & (2): Right to Silence.......

The courts are permitted to draw adverse interf­erences when the accused fails to mention before or when charged, a fact or material piece of evidence which they later rely upon in their defence.

Silence can be taken into account where there is other suffic­iently strong evidence against them calling for an explan­ation.

........6(1) & (3): Admiss­ibility of evidence.......

A person criminally charged has the right to examin­e/have examined witnesses against him and to obtain the attendance and examin­ation of witnesses on his behalf under the same conditions as witnesses against him.

........6(1): Closed evidence procedures.......

The suspects interests are repres­ented by a special advocate who has been security vetted.

The involv­ement of a special advocate is deemed to be capable of assuaging any disadv­antage flowing from non-di­scl­osure and so does not breach article 6.

........Extra-­ter­rit­orial applic­ation of article 6.......

Article 6 may prohibit the extrad­iti­on/­dep­ort­ation of a person to another state where that person has suffered or risks suffering a flagrant denial of a fair trial/­justice in that state.

This article bans the use of arbitrary power in the criminal law context.

..........Scope.........

Author­ities cannot impose a more serious punishment than was available at the time that the offence was committed.

A person cannot avail themselves of article 7 protection if they have been convicted of an offence which, although not an offence in the contra­cting state, was an offence by intern­ational law at the time it was committed.

Guilty concept:

Article 7 only applies where an applicant has been held guilty of any criminal offence.

The article is not engaged where the case concerns a decision to extradite rather than a criminal law decision.

Criminal liability does not need to be determined in a criminal court.

Criminal offence:

In determ­ining whether a charge is criminal, consid­eration should be had for:
- the classi­fic­ation of the offence in domestic law;
- the nature of the offence;
- the degree of severity of the proposed penalty.

A breach of a military discip­linary measure is not classed as a criminal act.

The Sunday Times Test can be applied.

The law must be accessible.

A law may have been forese­eable if it does no more than continue a percep­tible line of case law develo­pment.

Intern­ational law =
- intern­ational treaties ratified by the contra­cting state;
- customary intern­ational law (e.g. customs of war, crimes against humanity, genocide).

The court will not focus upon the descri­ption of the penalty in domestic law.

Procedural law:

In principle, the rule against retroa­ctivity does not apply to procedural laws.

Where domestic law classified as a procedural provision affects the severity of the penalty, the ECtHR could treat that as substa­ntive criminal law so that article 7 applies.

..........Structure of Article 8.........

The interf­erence must be:
- in accordance with the law (the Sunday Times test);
- in pursuit of a legitimate aim;
- necessary in a democratic society (propor­tionate)

Private life:

Covers a person's physical, mental and moral integrity.

Parliament is inherently better qualified to assess whether the right to die encomp­asses human dignity.

Policies interf­ering with the right to private life of transg­ender people may be incomp­atible unless it is propor­tionate if there are safeguards and comple­xities.

Survei­llance by the state will not be incomp­atible if a clear statutory framework exists and the survei­llance is necessary and propor­tionate.

Any action by a public authority that might disrupt a family unit (e.g. deport­ati­on/­ref­usal) may engage article 8.

There should be a balance between competing family interests.

Home:

This does not give a right to be provided with a home.

Extends to mainta­ining the situation to which a person has become accustomed and the permanence which gives comfort.

Extends to the right to be free of interf­ere­nce­s/n­uis­ances such as noise, smellsor leakages of waste.

Interc­eptions of commun­ica­tions by the police must be in accordance with the law and necessary.

..........Accordance with the Law.........

The Sunday Times test applies: The law must be accessible and suffic­iently precise.

..........Legitimate Aims.........

Control orders have previously engaged article 8.

Balancing budgets and apport­ioning public resources as fairly as possible is in legitimate pursuit of economic well-b­eing.

Blanket and indisc­rim­inate policies may be dispro­por­tionate.

e.g. DNA retention policies may fail to consider the lack of gravity of offences.

e.g. The blanket approach to disclosing convic­tions of paedop­hilia to organi­sations affiliated with the paedophile may be dispro­por­tionate if they do not work with children.

Schemes which discri­minate between the seriou­sness of offences are likely a propor­tionate interf­erence.

Protection of health & morals:

Strip and body searches for visitors of inmates are likely not propor­tionate in preventing crime and protecting prisoner health if they are intimate and poorly regulated.

Monitoring of calls, internet usage, emails etc. by public employers must have a basis in domestic law.

Covers a persons right to express views, whether in public or private.

Article 10 is a qualified right and can be restricted in the same way as article 8.

This article protects:
- political opinion
- journa­listic freedom
- artistic expression
- commercial inform­ation.

It is approp­riate to afford a generous margin of apprec­iation to the state to decide how the integrity of the national democratic system should be upheld with respect to political advert­ising.

..........Legitimate Aims.........

National security measures may not be prescribed by law if there is a lack of adequate safeguards.

Prevention of disord­er/­crime:

There must be an imminent breach of the peace for author­ities to take preven­tative action.

Where rights to protest remain intact in other aspects, like banned only from certain areas, there will not be a violation of article 10.

There is no uniform European concept of morality, so national author­ities are in a better position to assess the necessity of restri­ctions on expression to uphold moral code.

Limits of acceptable criticism are wider for politi­cians than for ordinary citizens.

Protecting the rights of others:

morality; blasph­emy­/of­fence on religious grounds; and racist or terrorist rhetoric.

Restri­ctions on freedom of political speech should be examined rigorously.

The ECtHR provides a lower degree of protection for forms of expression which include racist comment or can be seen as supportive of terrorism unless they promote or form part of a wider public debate.

Journa­lists engaged in proper, critical journalism of racist­/te­rrorist groups should be allowed to play their role of public watchdog without criminal measures.

Where journa­lists lawfully receive confid­ential inform­ation, they are not require to disclose their source.

Mainta­ining the authority & impart­iality of the judiciary:

Sunday Times v UK:
- An article pre-judged the legal issues of a case.
- A preven­tative injunction restri­cting public­ation was imposed: a clear restri­ction on freedom of expression.
- The court justified it as it fell within the aim of 'maint­aining the authority of the judiciary'.
- However, it held that the interf­erence was not necessary in a democratic society.
- UK later amended its law through the Contempt of Court Act.

Freedom of expression can be restrained before it occurs.

Super-­inj­unction:

Restrains public­ation of material.

Restrains even the fact that an order was made.

Copyright laws

Limita­tions on election expend­iture