ARTICLES 3 AND 8 ECHR
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Deirdre Fottrell March 2005 - All rights
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Key Provisions of the European
Convention on Human Rights
Article 8 (1) (see below)
ü
Right to ‘respect’ for family and private life, home
and correspondence
ü
Any
interference constitutes a violation of Article 8
(1)
Article 8(2)
ü
Court/Tribunal engages in a four stage test – to
ascertain whether the interference was justified
–
-
In accordance with the law
-
Necessary
in a democratic society
-
In pursuance of a legitimate aim – ie
protection of national security, public safety,
economic well being of the country, for the
prevention of disorder or crime, for the
protection of health or morals, for the protection
of rights and freedoms.
-
Measures taken are proportionate to the
pursuance of that aim.
Article 12
ü
Right to marry and found a family
Article 3
ü
No
one shall be subject to torture, inhuman and
degrading treatment or punishment.
Article 6
ü
Right to fair trial in the determination of ‘civil
rights or obligations’
ü
Article 6 (1) requires that decisions be made by a
fair and impartial tribunal
ü
Includes judicial and administrative stages of the
proceeding
Article
14
ü
Prohibition of discrimination in relation to the
substantive rights in the Convention – no
freestanding application
ü
List of protected categories – includes race, sex,
religion etc
ü
Non
exhaustive list
HRA General Obligations
ü
Section 3 – Obligation on the Courts to interpret
domestic legislation
ü
S.6
– unlawful for a public authority to act in a way
which is incompatible with the Convention – includes
tribunals, courts, decision makers at all levels
ü
Presumption of compatibility
Article 3 in the Context of Immigration and Asylum
Claims
ü
ECHR case law around the issue of extra territorial
application of Convention principles
ü
Soering v UK 1986
– violation of the Convention to extradite a person
if he faces treatment which would contravene Article
3 in the returning State – in this case the ‘death
row’ phenomenon.
ü
Chalal v UK
– applies to applications for asylum – onus is on
the Applicant to demonstrate that there is a ‘real
and substantial risk’ of being exposed to treatment
on return which violates the Convention – ie must be
foreseeable
ü
D v
UK
– removal or expulsion can invite the protection of
the Convention even where as in this case the
Applicant never legally entered the country –
convicted of importing narcotic drugs – receiving
treatment for HIV/AIDS – at the late stages of his
illness – no equivalent treatment available in his
country of origin – removal would violate Article 3.
ü
Note – Article 3 threshold is high and very
difficult to meet in the context of domestic
applications – however treatment which does not
reach the Article 3 threshold come within the ambit
of ‘private life’ under Article 8 (see below)
Continued
