rules, theories and protections of the ECHR

• what are human rights?

  refers to the states obligation to provide the individual with basic needs of human life
• what are civil liberties?


  refers to lists of civil and political rights, e.g. those in the ECHR and the human rights act 1998. obligations on the state NOT to interfere
• liberties and rights - rule of law

  under the rule of law, law should be open, clear, with equal application to all and great emphasis on due process. it states that the government should not interfere in an arbitrary way.
• protection of social and economic rights 


  not usually offered the same level of protection as civil and political rights. however, both sets of rights are fundamental even though they may be enforced differently
• the european convention on human rights (ECHR)

  drawn up by council of europe - UK signed in 1951 and ratified in 1953. council of europe is seperate to the EU and covers more countries as its aim is to uphold and protect human rights in europe. due to society and therfore human rights evolving, the ECHR is considered to be a living instrument.
• article 1


  imposes obligation on state to secure the rights within their own country
• article 2

  right to life
• article 3 


  right not to be subjected to torture or inhuman or degrading treatment
• article 4

  freedom from slavery and forced labour
• article 5

  right to liberty and security of the person
• article 6

  right to a fair trial
• article 7 


  law should not act retrospectively
• article 8 


  right to privacy
• article 9

  freedom of thought, conscience and religion
• article 10

  freedom of expression
• article 11

  right to peaceful process and assembly
• article 12 


  right to marry and have a family
• article 13 


  the country must have a court system where the person complaining against the breach of rights can have their case heard
• article 14 


  rights heard in the convention are enjoyed free from discrimination
• the rights in the convention are not absolute, all the articles contain exceptions (not 3 and 6). you can enforce the rights of the convention only against public bodies. you SUE for a breach of human rigths
• who can you enforce your rights against?

  against public bodies, including government departments, courts, councils, police, prisons, NHS. etc
• what are absolute rights?

  strongest rights , state cannot deviate from these and they can never be legally breached. e.g. article 6
• what are limited rights?

  state can deviate from these rights but only in prescribed limitations laid down in the right
• what are qualified rights?

  most human rights are qualified and can be removed when 'prescribed by law, necessary and proportionate in a democratic society in order to fulfill a legitimate aim'. they may be restricted to protect the rights of others or for the public interest and often involve balancing one human right against another
• margin of appreciation

  the ECHR was signed by 47 states with varying cultures, histories and legislation. to reflect their distinct legal frameworks, there is an element of discretion into ways the ECHR are given effect. this is known as the 'margin of appreciation. this was seen in the case of Handyside v UK (1976) where the ECHR held that the UK had the right to interfere on Handysides article 10 right regarding freedom of expression
• what is the ECtHR?

  final appeal court for european citizens who feel their human rights have been violated. primary enforcer of the ECHR and the UK can be brought before it by individuals that allege their rights have been breached. before the HRA 1998, UK citizens had to seek individual petition to appeal to the ECtHR, e.g. McCann v UK (1995). the ECtHR did declare that the UK did normally respond positively to judgements from the court despite having no legal obligation
• human rights act 1998


  biggest reforming legislation of the 20th century. the biggest change to UK law since the 1688 bill of rights. lays down legal framework, giving everyone the right to legally challenge the government and public authorities. it legally incorporates the ECHR into UK law
• s2


  leeds city council v price (2006) demonstrates that if there is conflicting UK and ECtHR precedent, UK precedent will be used. if there is no UK precedent then EctHR should be used as seen in Ullah (2004)
• s3

  states that acts of parliament has to be interpreted in a way which respects human rights and is compatible with the convention