MindMap Gallery General principles ECHR

General principles ECHR

The European Convention on Human Rights (ECHR) is a significant international treaty that safeguards fundamental human rights and freedoms across Europe. Embedded within the ECHR are a set of general principles that underpin its interpretation and application. These general principles serve as guiding principles for the protection of human rights and provide a framework for the implementation of the Convention. This mind map explores the general principles of the ECHR, delving into their significance and the impact they have on the interpretation of specific rights and obligations. From the principle of subsidiarity and the margin of appreciation to the principle of non-discrimination and the prohibition of torture, this mind map provides a comprehensive overview of the general principles that shape the ECHR.

Edited at 2022-12-19 11:32:24

Marwan Ben Moussa

General principles ECHR

Marwan Ben Moussa

Recommended to you
Outline

General principles

Why ECtHR was not very active in the begining

Convention was unknown, it was seen as symbolic

The commission acted as a cautious gatekeeper under the old procedure of the ECtHR

Golder v. UK (1975)

Facts of the case

Golder was in prison, he was accused of participating in a riot

He wishes to start legla proceedings for libel

However, he could not because he was not allowed to consult a sollicitor

Complaint in Strasbourg

Article 6 ECHR, Right to a fair trial.

UK governement argument = there was no trial so no grounds to make article 6 applicable

guarantees provided by Article 6

Guarantees to both "civil" and "criminal" cases

fair

public hearing

within a reasonable time

by an independant

and impartial

tribunal established by law

judgment pronounced publicly unless....

guarantees applicable to "criminal" only

Presumption of innoncence

Defence rights (legal assistance (etc...)

Why Golder matters ?

interpretation of the judges to give ECHR's provisions a broader meaning than a litteral interpretation would have done

Judges argue that the international legal background is underlining the importance of the rule of law and that HCP agreed to comply with this very rule

Vienna Convention

Statutes of the Council of Europe

Generally accepted principles of International Law

The Court establishes that in Civil matters, the impossibility of having access to court would violate the rule of law

A civil claim must be capable of being submitted to a judge

A HCP that won't give access to court to applicants represents a danger of arbitrary power

"The right of access to Court is an inherent element of Article 6§1"é

Airey v. Ireland (1979)

Facts

Divorce of Ms. Airey

No seperation agreement, attempts to obtain a decree of judicial separation

No legal aid, not in a fiancial position to pay for a lawyer = unable to find a solicitor willing to act for her

Complaints in Strasbourg

Article 6 Violation : Right to a fair trial

irish argument,

No unfair trial since there was no trial at all

BUT: Golder decision

They also say that she could have gone to court by herself

Answer of the Court

Answer of the Court: The Convention is intended to give rights that are practical and effective

it is not realistic to suppose that, in her situation, the applicant could effectively conduct her own case

Ireland argues that Ireland is not responsible for her personal circumstances!

"fulfilment of a duty under the Convention on occasion necessitates some positive action on the part of the State, in such circumstances, the State cannot remain simply passive

They add that the ECHR does not oblige to provide free legal aid- depends on social and economic developments

the Convention must be interpreted in the light of present-day conditions (...) and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals

Engels v. Netherands 1976 = Firs case against the Netherlands) ( not covered in class)

Facts

5 conscript soldiers

offences against military discipline

Commanding officers impose various penalties

Appeal = Supreme Military Court

Complaints in Strasbourg

Article 5 : Deprivation of Liberty

Article 14: different penalties depending on rank

Art. 6 No fair trial ( the SMC hearings are not public)

Article 10 & 11 freedom of expression

Article 1 "Everyone within the jurisdiction of the Contracting States to enjoy without discrmination the rights

Particual characteristics of military life

Tyrer v. UK (1972)x

Facts

Isle of man

15 y.o boy birched

Complaint : Article 3 : no one should suffer, torture inhuman or degrading treatment

UK government argument

They tried to support their practice

Local opinion in favour for maintaining birching

unelected judges that go against the local opinion and prohibit a practice : is it democratic ?

Deterrent effect- law & order

Birching was very useful to avoid crimes, prohibiting it would be counterproductive

Article 63 (now 56) – Territorial application 3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements. (THE IS)LE OF MAN WANTS A LOWER PROTECTION OF HUMAN RIGHTS

Intention of drafters of the ECHR

They argue that the intention of the drafters was not to avoid birching but totalitarian regimes

Strong local opinion

Tyrer wants to withdraw his complaint

The court said NO as soon as they declare your case admissible, it is not your case anymore ( it shows the weak positition of individuals before the ECtHR under the old procedure)

HANDYSIDE v. UK

Importance of freedom of expression

This right is not an absolute right like the prohibition of torture (Article 3)

How to review decisions of national authority

Margin of aprreciation / subsidiarity

No uniform conception, morals vary from time to time and place to place, national authorities are in a better position to judge

Stance of relativists

On moral case it's like a situation where a judge would have to check a docto's prescription, he can check the condition of how the prescription was made he does not have the knowledge to state on the prescription itself

However, it is NOT a carte blance, there is still European Supervision

Answers of the Court

even if law and order in the Isle of Man could not be maintained without recourse to judicial corporal punishment, this would not render its use compatible with the Convention

In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field”

The Court must recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions.

Consensus Priciple / Dynamic Interpretation

Advantage

Gives more flexibility to judges and ECHR

Disadvantages- less certainty on the obligations for the States

concept used by the Court stemming from the evolving nature of the interpretation of the European Convention on Human Rights. As repeatedly stated by the Court, the Convention is a living instrument