5. Right to liberty and right to fair trial

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Due Process ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Right ◽  
Article 5

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the right to liberty and fair trial, which are not qualified rights but can be derogated from in times of war and emergency, and provides an overview of the European Convention on Human Rights’ (ECHR) Articles 5 and 6, the most commonly argued rights before the European Court of Human Rights (ECtHR). Article 5 on the right to liberty and security of person protects individuals from unlawful and arbitrary detention, whereas Article 6 protects the rights to fair trial in both criminal and civil cases (with added protection in criminal cases). The ECtHR has expanded protection of Article 6 through its interpretation of ‘fair’ hearing and ‘civil’ rights and obligations. The chapter examines due process rights as part of UK law, including the Human Rights Act 1998 (HRA).

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

scholarly journals Deprivation of liberty and intensive care: an update post Ferreira

2017 ◽  
Vol 19 (1) ◽  
pp. 35-42 ◽  
Author(s):  
Behrad Baharlo ◽  
Daniele Bryden ◽  
Stephen J Brett
Keyword(s):  
Intensive Care Unit ◽  
Human Rights ◽  
Intensive Care ◽  
European Convention ◽  
Life Saving ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Right ◽  
Acid Test ◽  
Article 5

The right to liberty and security of the person is protected by Article 5 of the European Convention on Human Rights which has been incorporated into the Human Rights Act 1998. The 2014 Supreme Court judgment in the case commonly known as Cheshire West provided for an ‘acid test’ to be employed in establishing a deprivation of liberty. This ‘acid test’ of ‘continuous supervision and not free to leave’ led to concerns that patients lacking capacity being treated on an Intensive Care Unit could be at risk of a ‘deprivation of liberty’, if this authority was applicable to this setting. This article revisits the aftermath of Cheshire West before describing the recent legal developments around deprivation of liberty pertaining to intensive care by summarising the recent Ferreira judgments which appear for now to answer the question as to the applicability of Cheshire West in life-saving treatment.

The extent to which a conviction can be regarded as ‘safe’, notwithstanding unfairness in the trial process, has had to be re-considered following the enactment of the Human Rights Act 1998, and the decision of the European Court of Human Rights in R v Condron [2000] Crim LR 679. The result is that the Court of Appeal should not disengage the issue of the fairness of the trial from the issue of whether or not the conviction is safe. In essence significant violations of the right to a fair trial provided by Art 6 of the European Convention on Human Rights are, of themselves, likely to render a conviction unsafe; see further R v Francom (2000) The Times, 24 October. In R v Togher and Others (2000) The Times, 21 November, Lord Woolf CJ went so far as observe that the approach of the Court of Appeal should be in step with that of the European Court of Human Rights with the result that the denial of a fair trial contrary to Art 6 would now inevitably lead to a finding that the resulting conviction was unsafe. Such a conclusion is a direct result of the obligation created by s3(1) of the Human Rights Act 1998 to the effect that domestic legislation, such as the Criminal Appeal Act 1995, should be read, so far as possible, in a manner that gave effect to Convention rights. R v Davis (2000) The Times, 25 July, whilst not departing from this broad proposition, emphasises that it may still be necessary to look at the circumstances of a particular case before concluding that a violation of Art 6 has rendered a conviction unsafe – it will be a matter of fact and degree. Even if an appeal against conviction succeeds the accused may still face a retrial. The Court of Appeal has the discretion to order a retrial under s 7 of the 1968 Act if it appears to the court that the interests of justice so require. If there has been a total mistrial the Court of Appeal can issue a writ of venire de novo – setting events back to where they were before the irregularity that rendered the trial a mistrial occurred. Some appeals against conviction will be partially successful in that the Court of Appeal can allow the appeal but substitute a conviction for a lesser-included offence – an obvious example being the quashing of a murder conviction and the substitution of a conviction for manslaughter. Appeal by the prosecution: against over lenient sentences

1996 ◽  
pp. 72-73
Keyword(s):  
Human Rights ◽  
De Novo ◽  
Fair Trial ◽  
Direct Result ◽  
European Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Times ◽  
The Right ◽  
Court Of Appeal

“RAPE SHIELDS” AND THE RIGHT TO A FAIR TRIAL

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
J.R. Spencer
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Constitutional Law ◽  
Fair Trial ◽  
European Convention ◽  
Youth Justice ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Right

INR. v. A (No. 2) [2001] 2 W.L.R. 1546 the House of Lords knocked a dent in the controversial “rape shield” provision, section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA). They did so wielding Article 6 of the European Convention on Human Rights, given direct effect by another piece of “flagship” legislation, the Human Rights Act 1998. The decision is important for constitutional law as well as for criminal evidence.

The English Fetus and the Right to Life

2004 ◽  
Vol 11 (4) ◽  
pp. 347-364 ◽  
Author(s):  
Rosamund Scott
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Right To Life ◽  
Selective Abortion ◽  
European Court ◽  
Balance Of Interests ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Legal Position ◽  
The Right

AbstractFollowing the enactment of the Human Rights Act 1998 in English law, there was speculation as to whether the English legal position that the fetus has no right to life is compatible with Article 2 of the European Convention on Human Rights (ECHR). The recent decision of the European Court of Human Rights in Vo v. France provides an opportunity to reflect on the current English and ECtHR approaches to the fetus. The problems of finding a fetal right to life, which Vo sidesteps, are noted. At the same time, the "all or nothingness" of rights language is not without difficulties and troubled the judges in Vo. In particular, the idea that the fetus has no right to life gives the impression that neither English nor ECHR law values the fetus. In this light, we find English and ECtHR judges trying to express a concern for the fetus which does not undermine a pregnant woman's legal interests. This article considers these issues and highlights the importance, in a highly genetic age, of developing ways of valuing the fetus without invoking the language of rights and thus without affecting the current legal balance of interests in the maternal-fetal relationship. The idea of valuing the fetus in this way is briefly explored with particular reference to aspects of selective abortion.

scholarly journals ADMINISTRATION OF JUSTICE DURING THE COVID-19 PANDEMIC AND THE RIGHT TO A FAIR TRIAL

2021 ◽  
Author(s):  
Krešimir Kamber ◽  
Lana Kovačić Markić
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
World Health ◽  
European Convention ◽  
European Court ◽  
Administration Of Justice ◽  
The Right ◽  
The Way

On 11 March 2020 the World Health Organization announced the Covid-19 (coronavirus) to be a pandemic. To combat the pandemic, many countries had to adopt emergency measures and some of these measures have affected the judicial system, especially the functioning of courts. The pandemic has been characterised as far as the judiciary is concerned by complete or partial closure of court buildings for the parties and for the public. It is clear that the functioning of national judicial systems has been severely disrupted. This limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under Article 6 of the European Convention on Human Rights. The aim of this article is to examine the manner of the administration of justice during the Covid pandemic and its impact on the due process guarantees. Focus is put on the extent to which different Covid measures, in particular remote access to justice and online hearings have impacted the guarantees of the right to a fair trial and the due process guarantees in general, notably in detention cases. In this connection, the article provides a comparative overview of the functioning of the European legal systems during the pandemic. It also looks into the way in which the two European courts – the European Court of Human Rights and the Court of Justice of the European Union functioned, as well as the way in which the Croatian courts, including the Constitutional Court, organised their work during the pandemic. The article then provides an insight into the issue of online/remote hearings in the case-law of the European Court of Human Rights and in the Croatian Constitutional Court’s case-law. On the basis of this assessment, the article identifies the differences in the use of remote/online hearings between and within jurisdictions. In conclusion, the article points to some critical considerations that should be taken into account when devising the manner in which any Covid pandemic experience with the administration of justice (notably with regard to remote/online hearings) can be taken forward.

Human Rights Act 1998

2019 ◽  
Author(s):  
Duncan Fairgrieve ◽  
Dan Squires QC
Keyword(s):  
Human Rights ◽  
Public Authority ◽  
European Convention ◽  
European Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk ◽  
The Right

The following chapter examines claims that can be brought under the Human Rights Act 1998 (HRA). The HRA makes it unlawful for a ‘public authority’ to breach the European Convention on Human Rights (‘the Convention’). The HRA accords to the victims of a breach of the Convention the right to pursue a claim against the offending public authority in the UK courts, when previously they were required to apply to the European Court of Human Rights in Strasbourg to vindicate their Convention rights.

1. Introduction, principles, and key concepts

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Key Concepts ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
The Right ◽  
Law Of Evidence

This chapter introduces the principles and key concepts underlying the law of evidence, with an emphasis on criminal evidence. It first explains the distinction between the law of evidence and evidence itself before turning to a discussion of fair trial by looking at Article 6 of the European Convention on Human Rights (ECHR), now part of English law as a result of the Human Rights Act 1998. The chapter then considers the main provisions related to evidence, including the presumption of innocence; privilege against self-incrimination; the right to examine witnesses; and admissibility of evidence obtained through covert surveillance, entrapment, or disclosure. It concludes by highlighting the importance of analysis of the relevance of the facts in a trial.

scholarly journals The Right to a Fair Trial before The European Court of Human Rights

2019 ◽  
Vol 2 (2) ◽  
pp. p133
Author(s):  
Alaa Mohamed Ismail Abdrabo
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Fair Trial ◽  
European Convention ◽  
New Work ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Charges ◽  
The Right ◽  
Right Of Access

Article 6 of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, applies to disputes relating to civil rights and obligations as well as to criminal charges. The right to a fair trial includes, inter alia, the right of access to a court, the right to be heard and the equality of arms between the parties. This challenging new work elucidates the meaning of the fair trial and looks at the fair trials jurisprudence of the ECHR.Article 6 of the European Convention on Human Rights has become the defining standard within Europe for determining the fairness of criminal proceedings. Its success has been attributed to the fact that it is not based on a particular model of criminal procedure.

Human Rights Act 1998 (European Convention on Human Rights)

2021 ◽  
pp. 299-306
Author(s):  
Anna Smajdor ◽  
Jonathan Herring ◽  
Robert Wheeler
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Fair Trial ◽  
European Convention ◽  
Right To Life ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Forced Labour ◽  
The Right

This chapter covers the Human Rights Act 1998 (European Convention on Human Rights) and includes topics on The Right to Protection from Torture, The Right to Life, Prohibition of slavery and forced labour, Right to liberty and security, Right to a Fair Trial, The Right Not to Suffer Punishment without Legal Authorisation, Right to respect for private and family life, The Right to Freedom of Thought, Conscience and Religion, The Right to Freedom of Expression, The Right to Freedom of Assembly and Association, The Right to Marry, and The Right to Protection from Discrimination.

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