Introduction to Human Rights
Procedure to bring a case before the European Court of Human Rights
State applications
o Proceedings may be brought by another signatory state.
o Recent cases concern allegations by Ukraine that Russia is authorising targeted assassination
operations against perceived opponents of the Russian state in both Russia and on the territory
of other states.
Individual petitions to the ECtHR
o Individuals who allege that their Convention rights have been breached may start their own
proceedings against the MS in Strasbourg.
o It must be shown that any domestic remedies which exist have first been exhausted.
o There is also a time limit. The petition must be made within four months of the final
domestic decision which will usually be of the highest court having jurisdiction.
o The individual can sue a private company for example in domestic courts and following all
appeals, apply to sue the MS in the ECtHR for not protecting her Convention rights.
Two stage process
The admissibility stage:
o Refers to the formal requirements that your complaint must satisfy before the
relevant committee can consider its substance.
The merits stage:
o The substance, on the basis of which the committee decides whether or not your
rights under a treaty have been violated.
Remedies
Court can award compensation or requiring the state to change its law.
Individual decisions are only binding as a matter of international law under the
Convention and have no direct binding force in domestic law.
The Court relies on the willingness of states to abide by the Convention and accept its
judgments.
The Committee of Ministers of the Council of Europe is responsible for ensuring that states
comply with judgments of the ECtHR.
General Principles under the ECHR
Subsidiarit States that human rights should primarily be protected at national level and the
y system under the ECHR is subordinate to this.
Reflects the fact that national authorities are in principle better placed than the
ECtHR to evaluate local needs and conditions.
Means where MS may legitimately reach different conclusions on a particular
issue, the ECtHR will respect the judgment of a MS as to what the public interest
requires.
However, the state’s margin of appreciation is subject to the supervision of the
ECtHR.
Margin of The ECtHR held the UK had not breached Art 10 (freedom of
appreciati Handyside v
expression) when its obscenity laws prohibited publication of a sex
on UK (1979)
education manual for children.
C challenged a ban on wearing clothing designed to conceal the face
in public on the basis that this breached the right to respect for
SAS v France private life (Art 8) and the right to manifest religion or belief (Art 9).
(2014) The ECtHR stated that, as views on this could differ in a democratic
society and as there was little agreement on this subject within MS,
the state had a wide margin of appreciation.
Living The EHCR has to be interpreted in the light of its aim of protecting human rights,
, the understanding of which may change with evolving social conditions.
instrumen
The content of the rights may change over time - the ECtHR does not operate a
t
strong system of precedent.
Convention right Absolute Limited Qualified
Absolute. Deprivation of life
resulting from the use of no
more force than is absolutely
Art 2 – right to life necessary in defined
circumstances does not
constitute an interference with
this right.
Art 3 – freedom from Absolute.
torture, inhuman and
degrading treatment.
Absolute. Certain activities are
excluded from the scope of
Art 4 – freedom from
compulsory labour and so do not
slavery, etc constitute an inference with this
right.
Limited –exceptions
Art 5 – liberty and
in relation to lawful
security of the person arrest and detention.
Absolute as to fair trial. Limited in relation to
Art 6 – fair trial the trial being in
public.
Art 7 – punishment Absolute. Does not preclude the
according to existing trial and punishment of acts that
law are criminal.
Art 8 – respect for Qualified.
private and family life
Art 9 – freedom of Absolute in relation to freedom Qualified in relation to
thought of thought. manifestation.
Art 10 – freedom of Qualified
expression
Art 11 – freedom of Qualified.
assembly and
association.
Absolute, but according to
Art 12 right to marry. national law governing the
exercise of the right.
Art 1 Protocol 1 – right Qualified
to peaceful enjoyment
of possessions.
→ Article 14 requires that all of the rights and freedoms set out in the ECHR must be
protected and applied without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.
→ Article 14 is not ‘free-standing’. To rely on this right, a victim must show that the
discrimination has affected their enjoyment of one or more of the other rights in the
Convention.
→ Article 14 covers both direct and indirect discrimination.
Derogations
→ Article 15 of the ECHR, a state may derogate from part of the Convention ‘in time of war or
other public emergency threatening the life of the nation’.
→ Any derogation must only strictly necessary.
, → No derogation is possible in respect of Articles 3 (torture, etc), 4(1) (slavery), or 7
(retrospective criminal offences), or from Article 2 (right to life) except in respect of deaths
resulting from lawful acts of war.
→ S 14 HRA 1998 creates a statutory procedure for enacting a derogation as UK law.
→ s 1 states that Convention rights are to be read subject to any derogation. A UK court will
not be able to enforce Convention rights where a derogation is in operation.
The Human Rights Act 1998
Incorporates and gives effect to the Convention rights. These are Articles 2–12 and 14 ECHR,
s1
Articles 1–3 of the First Protocol and Article 1 of the Thirteenth Protocol.
Domestic courts must ‘take into account’ judgments of the ECtHR but are not bound to
s2
follow them.
‘So far as it is possible to do so, legislation must be read and given effect in a way which is
s3 compatible with the Convention rights.’
Applies to past and future legislation.
Provides that the High Court and higher courts may declare an Act of Parliament to be
incompatible with Convention rights. Such a declaration does not affect the validity,
s4 continuing operation or enforcement of the provision in question, and does not bind the parties
to the proceedings (s 4(6)). However, it does put political pressure on the Government to
change the law.
It is unlawful for a public authority (including a ‘court’) to act in a way which is incompatible
s6 with Convention rights (unless giving effect to an incompatible statute).
NB: the court is a public authority, therefore has a duty to apply the Convention.
A person who claims that a public authority acted contrary to s 6 may ‘bring proceedings
s7 against the authority’ or ‘rely on the Convention right ... in any legal proceedings’. The person
must be a ‘victim of the unlawful act’
A court in civil proceedings may award damages where a public authority unlawfully infringes
s8
a Convention right, if it is necessary ‘to afford just satisfaction’ to the injured party
Creates a ‘fast-track’ procedure for changing legislation. Where UK legislation breaches
Convention rights, the Government may, if there are ‘compelling reasons’ to do so, make a
s
‘remedial order’ changing UK law.
10
This is delegated legislation which has to be approved by Parliament under the ‘affirmative
procedure’.
A Minister introducing future legislation must make a written statement of compatibility or
s
that, although they are unable to make a statement of compatibility, the Government wishes to
19
proceed with the bill.
R (on the application of Beer) v Hampshire Farmers Market Ltd [2003] held that the
terms ‘public body’ and ‘public authority’ are synonymous i.e. if a decision-maker is a
public body under the principles of JR then it will also be a ‘public authority’ for the
purposes of a decision which breaches a Convention right.
Note that the court is a public authority within the meaning of s 6 of the HRA 1998.
It therefore has a duty to apply the Convention.
The effect is referred to as ‘horizontality’, as it means that Convention rights can
affect relations between private citizens (or companies) and not merely relations
between state and citizen.
In A v Secretary of State for the Home Department [2004], the HOL quashed delegated
legislation made under s 14 of the 1998 Act.
S 7 of the HRA 1998 - a person can bring proceedings if they are a ‘victim’ i.e. must be
directly and personally affected.
, A ‘person’ will include individuals and NGOs such as companies, political parties or
trade unions.
Pressure groups will not be victims under s 7 and therefore cannot bring claims (R
(Adath Yisroel Burial Society) v HM Coroner for Inner North London [ 2018]).
Pressure groups may bring a JR claim if they have ‘sufficient interest’ and raise
breach of Convention Rights for the court to abide by.
Cases may be brought by close relatives of the victim, e.g. where the victim is dead or
has disappeared in the custody of the state.
Procedure to bring a case before the European Court of Human Rights
State applications
o Proceedings may be brought by another signatory state.
o Recent cases concern allegations by Ukraine that Russia is authorising targeted assassination
operations against perceived opponents of the Russian state in both Russia and on the territory
of other states.
Individual petitions to the ECtHR
o Individuals who allege that their Convention rights have been breached may start their own
proceedings against the MS in Strasbourg.
o It must be shown that any domestic remedies which exist have first been exhausted.
o There is also a time limit. The petition must be made within four months of the final
domestic decision which will usually be of the highest court having jurisdiction.
o The individual can sue a private company for example in domestic courts and following all
appeals, apply to sue the MS in the ECtHR for not protecting her Convention rights.
Two stage process
The admissibility stage:
o Refers to the formal requirements that your complaint must satisfy before the
relevant committee can consider its substance.
The merits stage:
o The substance, on the basis of which the committee decides whether or not your
rights under a treaty have been violated.
Remedies
Court can award compensation or requiring the state to change its law.
Individual decisions are only binding as a matter of international law under the
Convention and have no direct binding force in domestic law.
The Court relies on the willingness of states to abide by the Convention and accept its
judgments.
The Committee of Ministers of the Council of Europe is responsible for ensuring that states
comply with judgments of the ECtHR.
General Principles under the ECHR
Subsidiarit States that human rights should primarily be protected at national level and the
y system under the ECHR is subordinate to this.
Reflects the fact that national authorities are in principle better placed than the
ECtHR to evaluate local needs and conditions.
Means where MS may legitimately reach different conclusions on a particular
issue, the ECtHR will respect the judgment of a MS as to what the public interest
requires.
However, the state’s margin of appreciation is subject to the supervision of the
ECtHR.
Margin of The ECtHR held the UK had not breached Art 10 (freedom of
appreciati Handyside v
expression) when its obscenity laws prohibited publication of a sex
on UK (1979)
education manual for children.
C challenged a ban on wearing clothing designed to conceal the face
in public on the basis that this breached the right to respect for
SAS v France private life (Art 8) and the right to manifest religion or belief (Art 9).
(2014) The ECtHR stated that, as views on this could differ in a democratic
society and as there was little agreement on this subject within MS,
the state had a wide margin of appreciation.
Living The EHCR has to be interpreted in the light of its aim of protecting human rights,
, the understanding of which may change with evolving social conditions.
instrumen
The content of the rights may change over time - the ECtHR does not operate a
t
strong system of precedent.
Convention right Absolute Limited Qualified
Absolute. Deprivation of life
resulting from the use of no
more force than is absolutely
Art 2 – right to life necessary in defined
circumstances does not
constitute an interference with
this right.
Art 3 – freedom from Absolute.
torture, inhuman and
degrading treatment.
Absolute. Certain activities are
excluded from the scope of
Art 4 – freedom from
compulsory labour and so do not
slavery, etc constitute an inference with this
right.
Limited –exceptions
Art 5 – liberty and
in relation to lawful
security of the person arrest and detention.
Absolute as to fair trial. Limited in relation to
Art 6 – fair trial the trial being in
public.
Art 7 – punishment Absolute. Does not preclude the
according to existing trial and punishment of acts that
law are criminal.
Art 8 – respect for Qualified.
private and family life
Art 9 – freedom of Absolute in relation to freedom Qualified in relation to
thought of thought. manifestation.
Art 10 – freedom of Qualified
expression
Art 11 – freedom of Qualified.
assembly and
association.
Absolute, but according to
Art 12 right to marry. national law governing the
exercise of the right.
Art 1 Protocol 1 – right Qualified
to peaceful enjoyment
of possessions.
→ Article 14 requires that all of the rights and freedoms set out in the ECHR must be
protected and applied without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.
→ Article 14 is not ‘free-standing’. To rely on this right, a victim must show that the
discrimination has affected their enjoyment of one or more of the other rights in the
Convention.
→ Article 14 covers both direct and indirect discrimination.
Derogations
→ Article 15 of the ECHR, a state may derogate from part of the Convention ‘in time of war or
other public emergency threatening the life of the nation’.
→ Any derogation must only strictly necessary.
, → No derogation is possible in respect of Articles 3 (torture, etc), 4(1) (slavery), or 7
(retrospective criminal offences), or from Article 2 (right to life) except in respect of deaths
resulting from lawful acts of war.
→ S 14 HRA 1998 creates a statutory procedure for enacting a derogation as UK law.
→ s 1 states that Convention rights are to be read subject to any derogation. A UK court will
not be able to enforce Convention rights where a derogation is in operation.
The Human Rights Act 1998
Incorporates and gives effect to the Convention rights. These are Articles 2–12 and 14 ECHR,
s1
Articles 1–3 of the First Protocol and Article 1 of the Thirteenth Protocol.
Domestic courts must ‘take into account’ judgments of the ECtHR but are not bound to
s2
follow them.
‘So far as it is possible to do so, legislation must be read and given effect in a way which is
s3 compatible with the Convention rights.’
Applies to past and future legislation.
Provides that the High Court and higher courts may declare an Act of Parliament to be
incompatible with Convention rights. Such a declaration does not affect the validity,
s4 continuing operation or enforcement of the provision in question, and does not bind the parties
to the proceedings (s 4(6)). However, it does put political pressure on the Government to
change the law.
It is unlawful for a public authority (including a ‘court’) to act in a way which is incompatible
s6 with Convention rights (unless giving effect to an incompatible statute).
NB: the court is a public authority, therefore has a duty to apply the Convention.
A person who claims that a public authority acted contrary to s 6 may ‘bring proceedings
s7 against the authority’ or ‘rely on the Convention right ... in any legal proceedings’. The person
must be a ‘victim of the unlawful act’
A court in civil proceedings may award damages where a public authority unlawfully infringes
s8
a Convention right, if it is necessary ‘to afford just satisfaction’ to the injured party
Creates a ‘fast-track’ procedure for changing legislation. Where UK legislation breaches
Convention rights, the Government may, if there are ‘compelling reasons’ to do so, make a
s
‘remedial order’ changing UK law.
10
This is delegated legislation which has to be approved by Parliament under the ‘affirmative
procedure’.
A Minister introducing future legislation must make a written statement of compatibility or
s
that, although they are unable to make a statement of compatibility, the Government wishes to
19
proceed with the bill.
R (on the application of Beer) v Hampshire Farmers Market Ltd [2003] held that the
terms ‘public body’ and ‘public authority’ are synonymous i.e. if a decision-maker is a
public body under the principles of JR then it will also be a ‘public authority’ for the
purposes of a decision which breaches a Convention right.
Note that the court is a public authority within the meaning of s 6 of the HRA 1998.
It therefore has a duty to apply the Convention.
The effect is referred to as ‘horizontality’, as it means that Convention rights can
affect relations between private citizens (or companies) and not merely relations
between state and citizen.
In A v Secretary of State for the Home Department [2004], the HOL quashed delegated
legislation made under s 14 of the 1998 Act.
S 7 of the HRA 1998 - a person can bring proceedings if they are a ‘victim’ i.e. must be
directly and personally affected.
, A ‘person’ will include individuals and NGOs such as companies, political parties or
trade unions.
Pressure groups will not be victims under s 7 and therefore cannot bring claims (R
(Adath Yisroel Burial Society) v HM Coroner for Inner North London [ 2018]).
Pressure groups may bring a JR claim if they have ‘sufficient interest’ and raise
breach of Convention Rights for the court to abide by.
Cases may be brought by close relatives of the victim, e.g. where the victim is dead or
has disappeared in the custody of the state.
