'Due process rights concerning liberty and fair trial are too important to allow a state to limit protection.'

Explain and analyse this statement, with particular reference to the jurisprudence of the European Court of Human Rights.

In the introduction, explain the issues and set out how the essay will answer the question. The essay should set out what issues the essay will focus on, as there is wide scope in the essay for students to research.

Structure the essay to answer the question in a clear manner. Given the amount of case law on article 5 and 6 it may be appropriate to focus on certain areas. If the essay will only focus on certain areas to answer the question, the introduction should explain why these areas were chosen and note (possibly in a footnote) the other areas that may also be used to illustrate the question but will not be detailed in the essay.

The essay should:

• Outline the importance of due process rights to human rights protection: note the nature of both liberty and fair trial as limited rights.
• Article 5 – analyse the approach of the ECtHR to the protection of article 5: how strict has it been in the application of the article, with reference to the reasons given in article 5 for allowing a state to detain. How has it approached the meaning of ‘Deprivation’?
• Article 6 – analyse the approach of the ECtHR to the protection of article 6: how strict has it been in the application of the article, with reference to the implied protections developed by the Court as well as the explicit areas within the right.
• Derogation –the use of derogation powers by the states under article 15 and the ECtHR’s approach to challenges to derogations under article 15
• Could note the UK application of article 5 and 6 but the focus of the question should be on the ECtHR

The essay should use the arguments of academics, relevant case law and reports.

Conclusions: This should bring the arguments together and evaluate the ECtHR’s approach. Has it undermined the importance of the due process rights or underlined the need to uphold protection? Should due process rights be absolute rights or are limitations necessary?