Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

3.2  The rights in the ECHR

The ECtHR seeks to give a practical and effective interpretation to ECHR rights. The purpose is to try to give an individual full enjoyment of the ECHR rights, in so far as this is possible. Limitations and qualifications to ECHR rights do, however, exist and can be used, for example, in times of national emergency.

The rights in the ECHR are expressed as broad principles which are potentially open to a wide range of interpretations and not all the rights in the ECHR are absolute. It is recognised that some rights may be limited where that is necessary to achieve an important objective. The precise objectives for which limitations are permitted are set out in each Article. They include things like protecting public health or safety, preventing crime and protecting the rights of others. For example, Article 5 of the ECHR is expressed in general terms: everyone has the right to liberty and security of the person. It goes on to say that no one shall be deprived of their liberty save in the following exceptions and in accordance with the law, and then provides a long list of exceptions to the general right. This does not mean that these rights are seen as less important, nor does it mean that it is enough simply to claim that an action falls within the exceptions provided by the ECHR. Those who infringe rights or try to limit them must also be able to prove that their actions are necessary according to the law, are pursuing a legitimate aim and are proportionate. You should now watch the following video which contains a short overview of the rights in the ECHR.

Video 2 Rights contained in the ECHR
Interactive feature not available in single page view (see it in standard view).

Box 3 contains the headings to the respective rights and freedoms set out in the ECHR. It is necessary to look to the actual wording of each Article as set out in the ECHR to gain a clearer picture of what is encompassed within the particular right or freedom.

Box 3 Examples of the work of the ECtHR

Article Summary of Article Example
Article 2 the right to life This did not originally prohibit the death penalty. The death penalty in times of peace was abolished by Article 1 of Protocol 6. Article 1 of Protocol 13 abolished the death penalty in time of war and provides an example of how the ECHR has responded to social and political change. In Pretty v UK [2002] 35 EHRR 1 141, which concerned a woman who was terminally ill and wanted to end her own life early before she was unable to and her suffering became too great, the ECtHR ruled that the right to life did not imply a corollary right to die, with the assistance of either a third party or a public authority.
Article 3 the prohibition of torture Case law here has considered the use of hooding, deprivation of sleep, the use of prolonged assaults, deportation, and serious and prolonged mistreatment of children who were in local authority care.
Article 4 the prohibition of slavery and forced labour The ECtHR has rarely considered this Article and no violation has ever been found. Cases which have been considered include individuals who have complained about the work they were required to do whilst they were in detention.
Article 5 the right to liberty and security This has been an area where many cases have been considered. It covers matters such as bail pending trial, the review of life sentences and parole, and the detention of terrorists or suspected terrorists.
Article 6 the right to a fair trial This is one of the fundamental principles of the ECHR as it relates to the fair administration of justice. Case law here has covered the meaning of a criminal charge, access to legal advice, evidence and procedural impartiality.
Article 7 the right not to be punished without law This requires that punishment can only follow from proper proceedings.
Article 8 the right to respect for family and private life Case law here has been wide ranging and has included the right to choice in sexual relations, press intrusion, prisoners’ letters, police surveillance, the refusal of planning permission, noise pollution, adoption, and punishment of children.
Article 9 freedom of thought, conscience and religion Case law here has covered limitations on the practising of religion in prison. This right does not include a right to be free from criticism.
Article 10 freedom of expression Case law here has included injunctions against the printing of stories in newspapers, the seizure of film and pre-trial publicity.
Article 11 freedom of assembly and association Case law here has generally involved union membership, closed shops and a ban on joining unions.
Article 12 the right to marry The ECtHR has been reluctant to interfere with domestic laws that regulate marriage, although it has done so in cases involving same-sex couples, transsexuals and prisoners.
Article 13 the right to an effective remedy The remedy of judicial review has been challenged under this Article. This Article was not incorporated by the HRA 1998.
Article 14 the prohibition of discrimination in relation to other Convention rights This is only applicable to other ECHR rights and does not provide a general right not to be discriminated against.

Case law, in the form of the decisions made by the ECtHR, which sits in Strasbourg, further defines the application and scope of the Articles of the ECHR. It is not possible to simply think in terms of a breach of an Article. It is also necessary to examine the substantial body of case law (frequently referred to as ‘the Strasbourg jurisprudence’ or ‘the ECHR jurisprudence’) which has been built up over the years. To state the law in this area with any certainty, therefore, reference needs to be made to the wording of the Article in the ECHR, the case law of the ECtHR and the decisions of Scottish courts.

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