Category: Human Rights

JL, Regina (on the Application of) v Secretary of State for the Home Department: CA 24 Jul 2007

The court was asked to order a public enquiry into an attempted suicide in prison. Waller LJ was anxious about the task of defining suicide and near suicide: ‘I am clear that the simple fact of a death or serious injury of a person in custody gives rise to an obligation on the State to conduct the enhanced type of investigation. The extent of the investigation will depend on the circumstances . . As regards the nature of the investigation it seems to me that a death or near death in custody ipso facto means that the State must commence an investigation by a person independent of those implicated in the facts. The extent to which there must then be some further inquiry in the nature of a public hearing in which the next of kin or injured person can play a part will depend on the circumstances. In the case of a death there will be an inquest, and the coroner may have to decide whether the circumstances are such as to require something [further]. In cases of serious injury the nature of the further inquiry necessary will depend on the facts as discovered by the independent investigator.’

Judges:

Waller LJ, Maurice Kay LJ, Wilson LJ

Citations:

[2007] EWCA Civ 767, [2008] 1 WLR 158, [2007] Inquest LR 202, [2007] HRLR 39, [2007] ACD 95

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Appeal from – JL, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Nov-2006
Duty to investigate attempted suicide in prison. . .

Cited by:

Appeal from – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Coroners

Updated: 31 October 2022; Ref: scu.258363

Le Compte, Van Leuven And De Meyere v Belgium: ECHR 18 Oct 1982

Even where ‘jurisdictional organs of professional associations’ are set up: ‘Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body which has full jurisdiction and does provide the guarantees of article 6(1).’

Citations:

(1983) 5 EHRR 533, 7238/75, 6878/75, [1982] ECHR 7

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

Human Rights

Citing:

See Also – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
See Also – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
The applicants were suspended from practising medicine for three months by the Provincial Council of the Ordre des medecins. They appealed unsuccessfully to the Appeal Council and again unsuccessfully to the Court de Cassation. Dr Le Compte . .

Cited by:

See also – Albert And Le Compte v Belgium ECHR 10-Feb-1983
Hudoc Violation of Art. 6-1; Just satisfaction reserved . .
See Also – Albert And Le Compte v Belgium ECHR 24-Oct-1983
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings. . .
See Also – Albert And Le Compte v Belgium (Article 50) ECHR 24-Oct-1983
The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – The British Medical Association, Regina (on the Application of) v The General Medical Council and Another Admn 4-May-2016
The BMA sought to challenge the validity of the rules governing the procedure of Fitness to Practice panels. In particular the BMA challenged the new absence of a requirement that the panel’s legal advice and assistance be available to the parties. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 31 October 2022; Ref: scu.227211

Scordino v Italy (No. 2): ECHR 15 Jul 2004

Citations:

36815/97, [2004] ECHR 356

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Scordino v Italy ECHR 29-Jul-2004
(French Text) Grand Chamber. In the context of unreasonable delay in violation of article 6(1), there was a strong but rebuttable presumption that excessively long proceedings would occasion non-pecuniary damage. . .
See Also – Scordino v Italy (3) ECHR 17-May-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of P1-1; Just satisfaction reserved. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 31 October 2022; Ref: scu.230553

Ceyhan Demir And Others v Turkey: ECHR 13 Jan 2005

ECHR Judgment (Merits and Just Satisfaction) – Preliminary objections rejected (victim, non-exhaustion of domestic remedies); Violation of Art. 2 with regard to the death; Violation of Art. 2 with regard to the investigation; Violation of Art. 13; Not necessary to examine Art. 3 and Art. 6; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award.

Citations:

34491/97, [2005] ECHR 13

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 31 October 2022; Ref: scu.227660

AJ (Liberia) v Secretary of State for the Home Department: CA 15 Dec 2006

Citations:

[2006] EWCA Civ 1736

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – McKinnon, Regina (On the Application of) v Secretary Of State for Home Affairs Admn 31-Jul-2009
Assurances for Extradition
Extradition of the defendant was sought to the US to face allegations of hacking into defence computers there. He said this would infringe his article 3 rights, saying that he suffered Autism Spectrum Disorder.
Held: The application failed. US . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 31 October 2022; Ref: scu.247400

P-B (a Minor) (child cases: hearings in open court): CA 20 Jun 1996

The applicant sought to have his application for a residence order heard in open court: ‘Article 6 (1) provides for the public hearing and the public pronouncement of judgment of cases, but with the proviso of exclusion of the press and the public from all or part of the trial ‘in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require. The right of freedom of expression contained in Article 10(1) is subject to formalities, conditions, restrictions or penalties which may be imposed by the member state under Article 10(2). It would seem to me that the present procedures in family proceedings are in accordance with the spirit of the Convention.’

Judges:

Butler-Sloss LJ

Citations:

[1996] EWCA Civ 510, (1997) 1 All ER 58, [1996] 2 FLR 765

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

England and Wales

Citing:

Appealed to – B v The United Kingdom; P v The United Kingdom ECHR 24-Apr-2001
The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were . .

Cited by:

Cited – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Appeal from – B v The United Kingdom; P v The United Kingdom ECHR 24-Apr-2001
The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were . .
Cited – P v BW (Children Cases: Hearings in Public) FD 2003
The applicant sought a joint residence order, and for a declaration that the rules preventing such hearings being in public breached the requirement for a public hearing.
Held: Both FPR 1991 rule 4.16(7) and section 97 are compatible with the . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 31 October 2022; Ref: scu.140377

Kind, Regina (on The Application of) v Secretary of State for The Home Department: Admn 26 Mar 2021

his application for judicial review the Claimant challenges the rationality of the Defendant’s decision to refuse security clearance, the procedural fairness of the decision-making process, and its conformity with Article 8 of the Convention.

Citations:

[2021] EWHC 710 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights, Administrative

Updated: 31 October 2022; Ref: scu.660062

W, F, C and D (Minors) (Name Changes Disclosing Gender Reassignment and Other Matters): QBD 12 Feb 2020

Children – gender reassignment – Deed Poll – name change – welfare considerations – parental consent to name change – child’s consent – ECHR – Gender Recognition Act 2004 – Human Rights Act 1998 – privacy – Children Act 1989 s.1 – procedure – Article 8 – Article 14 – specific issue order

Citations:

[2020] EWHC 279 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Children, Human Rights

Updated: 31 October 2022; Ref: scu.648923

ABC v St George’s Healthcare NHS Trust and Others: QBD 28 Feb 2020

By this claim brought against three NHS trusts, the claimant contends that the defendants breached a duty of care owed to her and/or acted contrary to her rights under Article 8 of the European Convention on Human Rights in failing to alert her to the risk that she had inherited the gene for Huntington’s disease in time for her to terminate her pregnancy. The claimant seeks damages for the continuation of her pregnancy, psychiatric damage and consequential losses.

Judges:

Mrs Justice Yip DBE

Citations:

[2020] EWHC 455 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions, Human Rights

Updated: 31 October 2022; Ref: scu.648895

Cartref Care Home Ltd and Others, Regina (on The Application of) v The Commissioners for Her Majesty’S Revenue and Customs: Admn 13 Dec 2019

‘rolled up’ hearing for permission and substantive application is one which raises (inter alia) a question of Human Rights Act law in the context of a taxation issue.

Judges:

Cockerill J

Citations:

[2019] EWHC 3382 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights, Taxes Management

Updated: 28 October 2022; Ref: scu.648133

Jehovah’s Witnesses of Moscow v Russia: ECHR 10 Jun 2010

When considering the treatment of the religious community of Jehovah’s Witnesses in Moscow, the European Court of Human Rights said: ‘The Court further reiterates that the state’s duty of neutrality and impartiality prohibits it from assessing the legitimacy of religious beliefs or the ways in which those beliefs are expressed or manifested. Accordingly, the state has a narrow margin of appreciation and must advance serious and compelling reasons for an interference with the choices that people may make in pursuance of the religious standard of behaviour within the sphere of their personal autonomy. An interference may be justified in light of para.2 of art.9 if their choices are incompatible with the key principles underlying the Convention., such as, for example, polygamous or underage marriage or a flagrant breach of gender equality, or if they are imposed on the believers by force or coercion, against their will.’

Citations:

302/02, [2010] ECHR 887, (2011) 53 EHRR

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 27 October 2022; Ref: scu.418542

Smith v The Assistant Deputy Coroner for Oxfordshire: Admn 11 Apr 2008

The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared but were not disclosed to the coroner until the last day of the inquest and had not been admitted to evidence.
Held: Comments in the Gentle case were obiter. The claimant’s case succeeded. The right to life may protect soldiers serving outside Europe in situations where as here the service was in effective control of an area.

Judges:

Collins J

Citations:

[2008] EWHC 694 (Admin), Times 30-May-2008, [2008] 3 WLR 1284, (2008) 103 BMLR 152, [2008] ACD 45

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Martin v The United Kingdom ECHR 24-Oct-2006
The claimant was living with his family with the Army in Germany. Though he was a civilian, he was convicted by a court martial of murder. He complained that it was wrong that he had been subject to a military tribunal and that there had been an . .
Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.

Cited by:

Appeal from – Secretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
At First Instance – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Lists of cited by and citing cases may be incomplete.

Coroners, Human Rights

Updated: 27 October 2022; Ref: scu.266897

Regina v Botmeh; Regina v Alami: CACD 1 Nov 2001

In an appeal, the Crown sought leave to apply ex parte to have make certain information subject of a public interest immunity certificate. The defence argued that that was possible only on a first instance hearing.
Held: The procedures were available, and would not infringe the defendant’s human rights. There was nothing in the Court of Human rights jurisprudence to say that admission of such new evidence at the Court of Appeal would infringe the defendant’s right to a fair trial. The defence has no absolute right to disclosure of relevant evidence and that strictly necessary measures restricting the rights of the defence were permissible, provided they were counterbalanced by procedures followed by judicial authority.

Judges:

Lord Justice Rose, Mr Justice Hooper and Mr Justice Goldring

Citations:

Times 08-Nov-2001, Gazette 29-Nov-2001, [2001] EWCA Crim 2226, [2002] 1 WLR 531

Links:

Bailii

Statutes:

Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997 (SI 1997 No 698)

Jurisdiction:

England and Wales

Citing:

Cited – Atlan v The United Kingdom ECHR 19-Jun-2001
It was an infringement of the defendant’s right to a fair trial for the trial judge not to be involved in ex parte applications to exclude evidence. The defect could not be remedied by the same evidence later being presented also to the appeal court . .
Cited – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Evidence, Human Rights, Crime

Updated: 27 October 2022; Ref: scu.167040

Mulcahy v Ministry of Defence: CA 21 Feb 1996

A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was negligently fired by the gun commander. The Ministry of Defence sought to have the application struck out as disclosing no cause of action. The judge held at first instance that there should be a trial.
Held: The Court struck out the claim by application of combat immunity principles. Even on the facts pleaded, the plaintiff did not have a cause of action in negligence against the defendant. No duty of care can be owed by one soldier to another on the battlefield, nor can a safe system of work be required from any employer under such circumstances.
Neil LJ said: ‘Where . . the court is satisfied that additional facts will not change the framework of the claim and that the opposing arguments have been fully deployed the court should not shrink from deciding whether the application to strike out is well-founded in law. At the same time the Court must take account of Lord Browne-Wilkinson’s admonition that it is normally inappropriate to decide novel questions on hypothetical facts. But the novelty of the question of law is not an absolute barrier. It is to be remembered that the resolution of a question of law at an early stage in proceedings may result in a very substantial saving of costs.’

Judges:

Neil LJ

Citations:

Independent 29-Feb-1996, Times 27-Feb-1996, [1996] QB 732, [1996] 2 All ER 758, [1996] EWCA Civ 1323, [1996] 2 WLR 474

Links:

Bailii

Statutes:

Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Cited – Nissan v The Attorney General HL 11-Feb-1969
The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United . .
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – Shaw Savill and Albion Company Ltd v The Commonwealth 1940
(High Court of Australia) The plaintiff owned a ship ‘The Coptic’ which was in a collision with His Majesties Australian Ship ‘Adelaide’. The plaintiff alleged that the collision resulted from the negligence of the defendant’s officers, saying the . .

Cited by:

Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Smith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
Cited – Davies v Global Strategies Group Hong Kong Ltd and Another QBD 25-Sep-2009
The claimants alleged that the deceased had been shot while employed by the defendants working in Iraq. The defendants said that he had been an independent contractor for whom they did not have responsibility. . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Smith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Armed Forces, Human Rights

Updated: 27 October 2022; Ref: scu.84111

United Norwest Co-Operatives Ltd v Johnstone and Others: CA 1 Mar 1994

A person was entitled to the privilege against self-incrimination in civil proceedings. The privilege against self-incrimination remains in effect save only where there have been for any statutory limitations.

Citations:

Independent 01-Mar-1994, Times 24-Feb-1994

Jurisdiction:

England and Wales

Litigation Practice, Human Rights

Updated: 26 October 2022; Ref: scu.90076

Regina v Secretary of State Home Department, ex parte Mehmet Colak: CA 6 Jul 1993

The Home Office was entitled to return refugees to the country in which they had first stopped if it was a Community State.

Citations:

Times 06-Jul-1993

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Secretary of State for the Home Dept Ex Mehmet Colak CA 19-Jan-1994
Return to intermediate country by refugee not challengeable under art 8a. . .

Cited by:

See Also – Regina v Secretary of State for the Home Dept Ex Mehmet Colak CA 19-Jan-1994
Return to intermediate country by refugee not challengeable under art 8a. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, European

Updated: 26 October 2022; Ref: scu.87989

Regina v Secretary of State Home Department, ex parte Gallagher: CACD 16 Feb 1994

The Home Secretary need not give reasons for exclusion orders made for national security purposes.

Citations:

Ind Summary 28-Feb-1994, Times 16-Feb-1994

Statutes:

Prevention of Terrorism Act 1989 4, Prevention of Terrorism (Temporary Provisions) Act 1989

Jurisdiction:

England and Wales

Crime, Human Rights

Updated: 26 October 2022; Ref: scu.87986

Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs: Admn 22 Jul 2003

The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy in damages for a breach of a public law right. There must exist a private law cause of action, which may be for breach of statutory duty or at common law. The claimant sought to bring its claim within the 1998 Act, saying the convention requires a state to give rights to those within their jurisdiction, but the ambit of the Act had not been extended to South Georgia, and so no action arose. A licence to carry out an economic activity could amount to a possession within the meaning of Article 1PI.

Judges:

Collins J

Citations:

[2003] EWHC 1743 (Admin)

Links:

Bailii

Statutes:

Convention on the Conservation of Antarctic Marine Living Resources, Human Rights Act 1998 7, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

See also – Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited CA 30-Oct-2002
Order confirmed. ‘while for my part I have found nothing to demonstrate bad faith on the part of the Secretary of State, the history of this case has demonstrated to my mind that the approach taken to the public decisions that had to be made fell . .
Cited – Gillow v The United Kingdom ECHR 24-Nov-1986
The housing authority in Guernsey refused to allow the applicants to occupy the house they owned there.
Held: The house in question was the applicants’ home because, although they had been absent from Guernsey for many years, they had not . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited – Ocalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
Cited – Regina v The Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta CA 1982
The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK.
See Also – Quark Fishing Limited v Secretary of State for Foreign and Commonwealth Affairs 2001
The claimant had been granted licences to fish for Patagonian toothfish around South Georgia, but was refused one under the Order.
Held: The court quashed the Secretary of State’s decision. . .

Cited by:

Cited – Mohamed Moneim Al-Fayed for Judicial Review of A Decision of the Lord Advocate To Refuse To Instruct A Public Inquiry Into the Death of Emad Al-Fayed OHCS 12-Mar-2004
The claimant sought judicial review of the minister’s decision not to order a judicial public investigation of the death of his son in a car crash in Paris.
Held: The primary obligation to undertake an enquiry fell upon France. The obligation . .
Appeal from – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for the Foreign and Commonwealth Affairs CA 29-Apr-2004
The claimant sought damages for having had its licence to catch Patagonian toothfish off South Georgia revoked, saying that it had infringed its property rights under the Convention.
Held: Though the Convention rights had been extended to . .
See Also – Quark Fishing Limited v Secretary of State for Foreign and Commonwealth Affairs 2001
The claimant had been granted licences to fish for Patagonian toothfish around South Georgia, but was refused one under the Order.
Held: The court quashed the Secretary of State’s decision. . .
At First Instance – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Malik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .
Lists of cited by and citing cases may be incomplete.

Licensing, Agriculture, Human Rights

Updated: 25 October 2022; Ref: scu.184846

Dennis and Dennis v Ministry of Defence: QBD 16 Apr 2003

The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. The particular noise is loud and characterised by a very rapid onset with a corresponding startle effect. The question arose whether and in what circumstances a sufficient public interest can amount to a defence to a claim in nuisance.
Held: The noise was a continuing nuisance, and no question of limitation arose. The Harriers were not an oirdinary use of land, within the legal meaning of that phrase. Major developments in any society will interfere with the private enjoyment of nearby land. There was no statute here, only the fact that the noise had escalated. The public interest clearly demands that RAF Wittering should continue to train pilots, and a declaration should not be granted, and the losses were capable of financial satisfaction. There was an interference both with Article 1 and Article 8 rights, but damages would provide just satisfaction.

Judges:

The Honourable Mr Justice Buckley

Citations:

[2003] EWHC 793 (QB), Times 06-May-2003, [2003] 2 EGLR 121, [2003] 2 EGLR 121, [2003] NLJR 634, [2006] RVR 45, [2003] 19 EGCS 118

Links:

Bailii

Statutes:

European Convention on Human Rights 1 8

Jurisdiction:

England and Wales

Citing:

Cited – Dunton v Dover District Council 1977
References to decibels in actions for noise nusance, are not helpful unless compared with everyday sounds to which others can all relate. . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Sturges v Bridgman CA 1879
The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the . .
Cited – Rushmer v Polsue and Alfieri Limited CA 1906
The court considered the question of whether excess noise could constitute a nuisance.
Held: The court rejected the argument that a resident of a district specially devoted to a particular trade cannot complained of nuisance by noise caused by . .
Cited – Polsue and Alfieri v Rushmer HL 1907
The House approved a decision that a person purchasing property in an industrial district may be unable to claim for noise nuisance. Lord Loreburn LC said that (i) whether an activity gives rise to a nuisance may depend on the character of the . .
Cited – Southwark London Borough Council v Mills/Tanner; Baxter v Camden London Borough Council HL 21-Oct-1999
Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .
Cited – Cambridge Water Company v Eastern Counties Leather Plc HL 9-Dec-1993
The plaintiffs sought damages and an injunction after the defendant company allowed chlorinated chemicals into the plaintiff’s borehole which made unfit the water the plaintiff itself supplied.
Held: The appeal was allowed. Liability under . .
Cited – Thames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
Cited – Allen v Gulf Oil Refining Ltd HL 29-Jan-1980
An express statutory authority to construct an oil refinery carried with it the authority to refine. It was impossible to construct and operate the refinery upon the site without creating a nuisance. Lord Wilberforce said: ‘It is now well settled . .
Cited – Powell and Rayner v The United Kingdom ECHR 21-Feb-1990
The applicants complained of the noise generated by Heathrow Airport saying that it affected their human rights to enjoy their private life and possessions.
Held: Whether the case was analysed in terms of a positive duty on the state to take . .
Cited – Hatton and Others v United Kingdom ECHR 2-Oct-2001
The appellants claimed that the licence of over-flying from Heathrow at night, by making sleep difficult, infringed their rights to a family life. The times restricting over-flying had been restricted. The applicants’ complaints fell within a . .
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Kennaway v Thompson CA 30-Apr-1980
The plaintiff’s property adjoined the defendant’s boating lake over which the defendant had, over several years, come to run more and more motor boat sports events. The trial judge had found that the noise created by the racing was an actionable . .

Cited by:

Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
Cited – Dobson and others v Thames Water Utilities Ltd and Another CA 29-Jan-2009
The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Land, Human Rights

Updated: 25 October 2022; Ref: scu.181380

Bouchelkia v France: ECHR 29 Jan 1997

Citations:

23078/93, (1997) 25 EHRR 228, [1997] ECHR 1, (1998) 25 EHRR 686

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Citing:

Cited – Boughanemi v France ECHR 24-Apr-1996
A Tunisian national lived in France. In his youth. He was deported after being convicted of a number of serious criminal offences. He returned illegally and formed a relationship with a French national whose child he acknowledged to be his. He . .

Cited by:

Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 25 October 2022; Ref: scu.165475

Regina v Thomas, Regina v Flannagan: CACD 24 Jul 1998

Section allowing admission of documentary evidence was not a breach of requirements of European Convention on Human Rights. Reading of statements allowed where witness in fear. Judge given sufficient balancing discretion to follow convention

Citations:

Times 24-Jul-1998

Statutes:

Criminal Justice Act 1988 23 24 825 26

Jurisdiction:

England and Wales

Human Rights

Updated: 25 October 2022; Ref: scu.88177

Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others (No 4): ChD 13 Jun 2000

An application to the European Court of Human Rights was not an appeal. Where it was clear that any decision there would not affect the issues between the parties, there was no reason to suspend enforcement of the order which had given rise to the reference. A party complained at the lack of independence of the judge who had her trial, where he defended a possession summons. The possession order should go ahead.

Citations:

Times 13-Jun-2000, Gazette 22-Jun-2000

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

See Also – Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others ChD 31-Mar-1999
A consent to a mortgage on a property, allowed a bank to substitute a second charge for the first, without the owners consent, but this was limited to the extent and value of the first charge. There was no argument to limit the effect of the second . .

Cited by:

Cited – Westminster City Council v Porter and Another ChD 30-Jul-2002
The claimant authority sought compensation from the respondents for acts committed whilst she had been a councillor. The auditor had certified that the respondents had caused losses amounting to 31 million pounds.
Held: Summary judgement was . .
See Also – Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others ChD 31-Mar-1999
A consent to a mortgage on a property, allowed a bank to substitute a second charge for the first, without the owners consent, but this was limited to the extent and value of the first charge. There was no argument to limit the effect of the second . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice

Updated: 25 October 2022; Ref: scu.83128

Dr Ghosh v The General Medical Council: PC 25 Jun 2001

(Professional Conduct Committee of the GMC) The Board of the Privy Council, when acting to hear an appeal from the disciplinary committee of the General Medical Council would in future deal with the case by way of a rehearing. Given the nature of the threat to those appearing before the committee, their human rights to a fair trial could be protected by the additional jurisdiction. Exercising that jurisdiction in this case, the board decided that the remedy imposed had been appropriate and proportionate.
Lord Millett said: ‘The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner’s failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee’s judgment more than is warranted by the circumstances.’

Judges:

Lord Millett

Citations:

Times 25-Jun-2001, [2001] 1 WLR 1915, [2001] UKPC 29, Appeal No 69 of 2000

Links:

Bailii, PC, PC, PC

Statutes:

Human Rights Act 1998

Jurisdiction:

Commonwealth

Citing:

Followed – Evans v General Medical Council PC 19-Nov-1984
‘The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness . .

Cited by:

Cited – Gupta v The General Medical Council PC 18-Dec-2001
(The Health Committee of the GMC) A doctor had been found guilty of serious professional misconduct by the Professional Conduct Committee of the General Medical Council. She appealed on the basis that they had not given reasons for the factual basis . .
Cited – Dr Norton v The General Medical Council PC 11-Feb-2002
The appellant doctor had practised in plastic and related surgery, particularly liposuction. The complaints against him related to a failure to supervise his staff, wrongful delegation, and lack of care. His name had been erased from the register, . .
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – Khan v General Pharmaceutical Council SC 14-Dec-2016
The pharmacist had been removed from register the for a year after findings of domestic abuse. The court now considered what inquiry was required on an application for a continuation of that suspension.
Held: The different appeals of both the . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 25 October 2022; Ref: scu.80807

Van Kuck v Germany: ECHR 8 Aug 2011

Execution of the judgment of the European Court of Human Rights

Citations:

[2011] ECHR 1644, 35968/97

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

See Also – Van Kuck v Germany ECHR 12-Jun-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Violation of Art. 8 ; No separate issue under Art. 14 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 25 October 2022; Ref: scu.648611

Lancashire County Council v E and F: FD 4 Feb 2020

The court heard an application to set aside a witness summons, raising an important issue about the circumstances in which disclosure can be resisted on grounds of a religious duty of confidentiality, in the context of allegations of child sexual abuse within the Jehovah’s Witness community. The summonses had been issued to church elders who had received notice of the allegations of abuse, but delayed reporting them to police for over two years.
Held: The Church’s policies had not been followed by the witnesses, but they had acted with the knowledge of the higher church. The application was rejected.
There was no evidence that the material sought through the witness summons was in any sense a confession or akin to a confession. The allegation of sexual abuse came to the elders’ attention because the Mother reported it, not because the Father confessed to the elders, or sought spiritual counselling. The elders then carried out some form of investigation and met with the Father, probably on more than one occasion.
The material that the Council seeks also does not, on the evidence, amount to ‘spiritual counselling’. There was an investigation into E’s allegations.
In any event, the Congregation’s own policies indicated that where a conversation amounts to spiritual counselling but indicates that a child may be at risk of harm, then it ‘will be conveyed to the extent necessary to ensure that the policies and procedures herein expressed shall be properly followed so as to safeguard children.’ In the 2018 policy at para 5, it says that the elders will be told to report the matter if the child is still at risk of abuse. It seems highly likely that E was still at risk of abuse up to July 2019, yet the elders did not report the allegations.
There does appear to be a strong suspicion that the Congregation’s own published guidance, both 2013 and 2018 was not followed, not just by A and B, but also by more senior figures in the Congregation. From a child safeguarding viewpoint this is deeply troubling, not least because the policy documents are ones which seem to be produced for public consumption but not to be effective to protect children.

Judges:

Mrs Justice Lieven DBE

Citations:

[2020] EWHC 182 (Fam), 418542

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – H and Others v Regina CACD 21-Dec-2018
The crown sought to adduce additional evidence on the defendant’s appeal of the content of discussions between the defendant and a social worker from the council youth offending service.
Held: The evidence should not be admitted. Such . .
Cited – Regina v Hay 1896
A Roman Catholic priest had received, doubtless unknowingly, a watch that had been stolen. The priest was called to give evidence and was asked from whom did he receive the watch. He refused to answer saying that the reply would implicate the person . .
Cited – Regina v Gruenke 1991
(Canadian Supreme Court) The issue was whether the communications between the Defendant, who was accused of murder, and her pastor were protected by common law privilege or under the Canadian Bill of Rights.
Held: The Court not apply a strict . .
Lists of cited by and citing cases may be incomplete.

Family, Human Rights

Updated: 25 October 2022; Ref: scu.648624

Galdikas and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others: Admn 26 Apr 2016

‘The present application is principally concerned with the issue of whether there has been a failure by the Secretary of State for the Home Department and by the Secretary of State for Work and Pensions to put in place a comprehensive support regime for recognised victims of human trafficking in accordance with the United Kingdom’s obligations, in particular after the conclusion of the 45-day recovery and reflection period in which those victims are entitled to assistance and support.’

Judges:

Sir Stephen Silber

Citations:

[2016] EWHC 942 (Admin), [2016] WLR(D) 214, [2016] 1 WLR 4031

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Crime, Human Rights

Updated: 25 October 2022; Ref: scu.562902

Selahattin Demirtas v Turkey: ECHR 23 Jun 2015

ECHR Article 2
Positive obligations
Alleged failure of authorities to prosecute a journalist in respect of a newspaper article that was alleged to have put applicant’s life at risk: no violation
Facts – At the material time the applicant was a member of the DTP, a former pro-Kurdish political party, and a member of Parliament. In November 2007 he requested a criminal investigation against the author of an article entitled ‘Turk, here is your enemy’ on the grounds that it was insulting and constituted incitement to violence. In the article, the author had listed a series of terrorist related deaths and accused DTP members of being the ‘real murderers’, mentioning the applicant by name. On 7 December 2007 the public prosecutor decided not to bring criminal proceedings after noting in his decision that the article had been published as a result of terrorist acts carried out by the PKK, an internationally recognised terrorist organisation, that it expressed the author’s opinion while offering proposals with a view to eradicating the terrorist group and that it fell within the freedom of the media. The applicant challenged that decision pointing out that DTP members mentioned by name in the article had been marked as targets on account of their political opinions. Although the applicant’s challenge was unsuccessful, the Ministry of Justice applied to the Court of Cassation for the prosecutor’s decision to be quashed on the grounds that the article should not have been protected as it did not fall within the scope of the right to freedom of expression. That application was dismissed by the Court of Cassation.
Law – Article 2 (substantive aspect): The Court recalled that not every claimed risk to life can entail a Convention requirement for the authorities to take operational measures to prevent that risk from materialising. It had to be established whether there was a real and immediate risk to the life of the applicant, which was known or ought to have been known to the Turkish authorities and whether in response they had done all that could reasonably be expected of them to avoid that risk.
The Court noted that in his first petition to the public prosecutor’s office the applicant’s representative had not alleged that the applicant had faced a real immediate risk to his life or that he had received actual threats from third parties following the publication of the impugned article. Nor was it claimed that there had been a campaign of violence or intimidation in respect of which the national authorities had failed to take measures to protect the applicant. The applicant had not referred to any actual or attempted physical violence placing his life in danger. There was no indication that the national authorities should have taken operational measures to protect the applicant without him having requested such protection. The applicant’s complaint concerned the failure of the national authorities to punish the author of the impugned article, not the lack of operational measures to prevent a real and immediate risk to his life. Consequently, the State’s positive obligation under Article 2 of the Convention was not engaged.
Conclusion: no violation (six votes to one).
(See also Osman v. the United Kingdom, 23452/94, 28 October 1998; and Dink v. Turkey, 2668/07 et al., 14 September 2010, Information Note 133)

Citations:

15028/09 – Chamber Judgment, [2015] ECHR 604, 15028/09 – Legal Summary, [2015] ECHR 673

Links:

Bailii, Bailii Summary

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 25 October 2022; Ref: scu.549949

Vallianatos and Others v Greece: ECHR 7 Nov 2013

Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life and amounted to unjustified discrimination between different-sex and same-sex couples, to the detriment of the latter.
Held: The introduction of registered partnerships only for different sex couples, to exist alongside marriage which was also only open to different sex couples, constituted a breach of article 14 read with article 8 of the Convention

Judges:

Dean Spielmann, P

Citations:

29381/09, [2013] ECHR 1110, 32684/09, 36 BHRC 149, (2014) 59 EHRR 12

Links:

Bailii

Statutes:

European Convention on Human Rights 8 14

Jurisdiction:

Human Rights

Citing:

Legal Summary – Vallianatos And Others v Greece (LS) ECHR 7-Nov-2013
ECHR (Grand Chamber) Article 14
Discrimination
Exclusion of same-sex couples from ‘civil unions’: violation
Facts – The first application was lodged by two Greek nationals, and the second by six . .

Cited by:

Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Discrimination

Updated: 25 October 2022; Ref: scu.517642

EB And Others v Austria: ECHR 7 Nov 2013

The applicants challenged refusal of the respondent country to remove details of their convictions under a law which was later declared unconstitutional.

Judges:

Isabelle Berro-Lefevre, P

Citations:

31913/07 – Chamber Judgment, [2013] ECHR 1098

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Crime

Updated: 25 October 2022; Ref: scu.517621

Giuseppa Romeo v Regione Siciliana: ECJ 7 Nov 2013

ECJ National administrative procedure – Purely internal situation – Administrative acts – Obligation to state reasons – Whether it is possible for failure to state reasons to be remedied during legal proceedings against an administrative act – Interpretation of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union – Lack of jurisdiction of the Court

Judges:

T von Danwitz P

Citations:

C-313/12, [2013] EUECJ C-313/12

Links:

Bailii

Jurisdiction:

European

Human Rights

Updated: 25 October 2022; Ref: scu.517558

Dietz and Suttasom v Austria: ECHR 29 May 2015

Article 14
Discrimination
Conclusion of registered partnership and civil marriage before different authorities: communicated See: [2015] ECHR 644
[This summary also covers the communicated case of Hormann and Moser v. Austria, no. 31176/13]. [2015] ECHR 645
The applicants, homosexual couples, applied to the Office for Matters of Personal Status to contract a civil marriage. They further stated that in case they were denied the conclusion of a civil marriage, they wished to apply for the conclusion of a registered partnership, but only if the conclusion were to take place before the Office for Matters of Personal Status. Their application for the conclusion of a civil marriage was dismissed as, under the Civil Code, civil marriage could only be concluded by two persons of the opposite sex. The Office for Matters of Personal Status also dismissed their application for a registered partnership as such a partnership could only be concluded before the District Administrative Authority. The applicants unsuccessfully appealed against that decision before the administrative authorities and the domestic courts.
The applicants complain under Article 14 read in conjunction with Article 8 that they were discriminated against on grounds of their sexual orientation, because registered partnerships (which are open exclusively to same-sex couples) are concluded before the District Administrative Authorities, while civil marriage (which can only be concluded by two persons of the opposite sex) is contracted before the Office for Matters of Personal Status.
Communicated on 29 May 2015 under Article 14 read in conjunction with Article 8.

Citations:

31185/13 – Communicated, [2015] ECHR 644, 31185/13 – Legal Summary, [2015] ECHR 649

Links:

Bailii, Bailii Summary

Statutes:

European Convention on Human Rights 8 14

Jurisdiction:

Human Rights

Citing:

See Also – Hormann And Moser v Austria ECHR 29-May-2015
Article 14
Discrimination
Conclusion of registered partnership and civil marriage before different authorities: communicated See: [2015] ECHR 645
[This summary also covers the communicated case of Dietz and Suttasom v. Austria, no. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 24 October 2022; Ref: scu.549935

Baka v Hungary: ECHR 27 May 2014

ECHR Article 6
Civil proceedings
Article 6-1
Access to court
Inability of Supreme Court President to contest premature termination of his mandate: violation
Article 10
Article 10-1
Freedom of expression
Premature termination of Supreme Court President’s mandate as a result of views expressed publicly in his professional capacity: violation
Facts – The applicant, a former judge of the European Court of Human Rights, was elected President of the Supreme Court of Hungary for a six-year term ending in 2015. In his capacity as President of that court and of the National Council of Justice, the applicant expressed his views on various legislative reforms affecting the judiciary. The transitional provisions of the new Constitution (Fundamental Law of Hungary of 2011) provided that the legal successor to the Supreme Court would be the Kuria and that the mandate of the President of the Supreme Court would end following the entry into force of the new Constitution. As a consequence, the applicant’s mandate as President of the Supreme Court ended on 1 January 2012. According to the criteria for the election of the President of the new Kuria, candidates were required to have at least five years’ experience as a judge in Hungary. Time served as a judge in an international court was not counted. This led to the applicant’s ineligibility for the post of President of the new Kuria.
Law – Article 6 – 1: According to the test set out in Vilho Eskelinen, an applicant’s status as a civil servant acting as the depositary of public authority could justify excluding the protection embodied in Article 6 subject to two conditions: firstly, the State must have expressly excluded in its national law access to a court for the post or category of staff in question and, secondly, the exclusion must be justified on objective grounds in the State’s interest. In order for the exclusion to be justified, it was not enough for the State to establish that the civil servant in question participated in the exercise of public power, it also had to be demonstrated that the subject matter of the dispute was related to the exercise of State power. Under Hungarian law judges of the Supreme Court, including their president, were not expressly excluded from the right of access to court. In fact, domestic law expressly provided for the right to a court in the event of dismissal of a court executive. Rather than by express exclusion, the applicant’s access to a court had been impeded by the fact that the impugned measure – the premature termination of his mandate as President of the Supreme Court – had been written into the new Constitution itself and had therefore not been subject to any form of judicial review, including by the Constitutional Court. In view of the above, the Government had not demonstrated that the legal policy choice of enacting the premature termination of the applicant’s mandate into the new Constitution had involved an express identification of an ‘[area] of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way’. Therefore, it could not be concluded that the national law had ‘expressly excluded access to court’ for the applicant’s claim. The first condition of the Eskelinen test had not been met and Article 6 applied under its civil head.
Furthermore, even assuming that the national legislative framework had specifically denied the applicant the right of access to a court, the applicant’s exclusion from that right had not been justified. The Government maintained that his post as President of the Supreme Court had by its very nature involved the exercise of powers conferred on him by public law and duties designed to safeguard the general interests of the State. However, the mere fact that the applicant was in a sector or department which participated in the exercise of power conferred by public law was not in itself decisive. In order for the exclusion to be justified, it was for the State to show that the subject matter of the dispute at issue was related to the exercise of State power or that it had called into question the special bond of trust and loyalty between the civil servant and the State. In the applicant’s case, the Government had not adduced any arguments to show that the subject matter of the dispute had been linked to the exercise of State power in such a way that the exclusion of the Article 6 guarantees had been objectively justified. In this regard, the Court considered it significant that, unlike the applicant, the former Vice-President of the Supreme Court had been able to challenge the premature termination of his mandate before the Constitutional Court.
Conclusion: violation (unanimously).
Article 10: The facts of the case and the sequence of events showed that the early termination of the applicant’s mandate as President of the Supreme Court was not the result of restructuring of the supreme judicial authority, as the Government had contended, but a consequence of views and criticisms he had publicly expressed in his professional capacity. The proposals to terminate his mandate and the new eligibility criterion for the post of President of the Kuria had all been submitted to Parliament after the applicant had publicly expressed his views on the legislative reforms at issue, and had been adopted within an extremely short time. The fact that the functions of the President of the National Council of Justice had been separated from those of the President of the new Kuria was not in itself sufficient to conclude that the functions for which the applicant had been elected had ceased to exist after the entry into force of the new Constitution. Furthermore, neither the applicant’s ability to exercise his functions as president of the highest court in the country, nor his professional behaviour had been called into question. The early termination of his mandate thus constituted an interference with the exercise of his right to freedom of expression.
The applicant’s impugned opinion concerned four legislative reforms affecting the judiciary. Issues concerning the functioning of the justice system constituted questions of public interest, the debate of which enjoyed the protection of Article 10. Even if an issue under debate had political implications, this was not in itself sufficient to prevent a judge from making a statement on the matter. It had not only been the applicant’s right but also his duty as President of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary. The applicant had used his prerogative to challenge some of the legislation concerned before the Constitutional Court and to express his opinion directly before Parliament. There was no evidence to conclude that the views he had expressed went beyond mere criticism from a strictly professional perspective, or that they had contained gratuitous personal attacks or insults. As regards the proportionality of the interference, the applicant’s term of office as President of the Supreme Court had been terminated three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election. Furthermore, although the applicant had remained in office as a judge of the new Kuria, the premature termination of his mandate had had pecuniary consequences.
The Court reiterated that the fear of sanction had a ‘chilling effect’ on the exercise of freedom of expression and in particular risked discouraging judges from making critical remarks about public institutions or policies, for fear of losing their judicial office. In addition, the impugned measure had not been subject to effective judicial review by the domestic courts.
Having regard to the foregoing considerations, the interference with the applicant’s right to freedom of expression had not been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: question reserved.
(See also, as regards the issues arising under Article 6 – 1, Vilho Eskelinen and Others v. Finland [GC], 63235/00, 19 April 2007, Information Note 96; and Harabin v. Slovakia, 58688/11, 20 November 2012, Information Note 157)

Citations:

20261/12 – Chamber Judgment, [2014] ECHR 528, 20261/12 – Legal Summary, [2014] ECHR 710

Links:

Bailii, Bailii Summary

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 24 October 2022; Ref: scu.526037

The Christian Federation of Jehovah’s Witnesses of France v France: ECHR 6 Nov 2001

(Non-admissibility Decision) It was affirmed: ‘that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he alleges. That Article does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment.’
However, a potential victim might yet qualify, but only on production of ‘reasonable and convincing evidence of the likelihood that a violation affecting him personally (would) occur; mere suspicion or conjecture (being) insufficient in this respect.’

Citations:

Unreported, 6 November 2001

Statutes:

European Convention on Human Rights 34

Jurisdiction:

Human Rights

Cited by:

Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 24 October 2022; Ref: scu.393383

Gldani Congregation of Jehovah’s Witnesses Others v Georgia: ECHR 3 May 2007

The applicant claimed that the police had known in advance of an attack upon the applicants by religious opponents, which he said would constitute inhuman or degrading treatment, but that they had failed to take any preventive action.
Held: The Court reaffirmed the existence of a positive obligation upon States under article 3, in the terms set out in Z v United Kingdom and added at para 96 ‘This protection calls for reasonable and effective measures’.

Judges:

J-P Costa, P

Citations:

71156/01, [2007] ECHR 1160

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .

Cited by:

Cited – Re E (A Child); E v Chief Constable of the Royal Ulster Constabulary and Another (Northern Ireland Human Rights Commission and others intervening) HL 12-Nov-2008
(Northern Ireland) Children had been taken to school in the face of vehement protests from Loyalists. The parents complained that the police had failed to protect them properly, since the behaviour was so bad as to amount to inhuman or degrading . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 24 October 2022; Ref: scu.277875

HB (Ethiopia) and others v Secretary of State for the Home Department: CA 14 Dec 2006

The court considered the Human Rights effect of a delay in removal of a failed asylum seeker. Buxton LJ said of the claim that the delay led to a separate reason for not ordering the claimants’ return: ‘that enterprise failed, first because the effect in law of such delay is already well-settled by authority binding on this court; and second because all of the four cases before us fail on grounds not related to delay’.

Judges:

Buxton LJ

Citations:

[2006] EWCA Civ 1713, [2007] Imm AR 396, [2007] INLR 150

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 24 October 2022; Ref: scu.247350

Regina (A) v Partnerships in Care Ltd: QBD 11 Apr 2002

The owners of private mental hospital sought to change the character of one of its wards. A patient sought leave to challenge that change by judicial review, arguing that the hospital served a public function.
Held: Although the contracting out of the Heath Authority’s functions might not always transfer its public obligations, such obligations might fall on a body such as the respondent in other ways. Here the Regulation imposed a direct statutory duty to provide adequate staff and treatment facilities, and the private hospital was the subject of specific statutory duties which underpinned its activities. The patients had been admitted by compulsion. The hospital exercised a public function in their care, and decisions about that care were susceptible to review.

Judges:

Mr Justice Keith

Citations:

Times 23-Apr-2002, [2002] EWHC 529 (Admin), [2002] 1 WLR 2610

Links:

Bailii

Statutes:

Nursing Homes and Mental Nursing Homes Regulations 1984 (SI 1984 No 1578) 12(1), Registered Homes Act 1984, Mental Health Act 1983 3

Jurisdiction:

England and Wales

Cited by:

Cited – Scott v LGBT Foundation Ltd QBD 3-Mar-2020
Disclosure of risk of self harm made no claim
The claimant complained that the respondent support group had disclosed to his doctor that fact that they had assessed him as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Human Rights

Updated: 24 October 2022; Ref: scu.170069

Banks v Revenue and Customs (Inheritance Tax : Human Rights): FTTTx 15 Oct 2018

Exemption from IHT for gifts to political parties – section 24 Inheritance Tax Act 1984 – whether breach of European Convention on Human Rights – whether breach of European Union law

Citations:

[2018] UKFTT 617 (TC), [2019] SFTD 304, [2019] STI 214

Links:

Bailii

Jurisdiction:

England and Wales

Inheritance Tax, Human Rights

Updated: 24 October 2022; Ref: scu.632331

Paradiso And Campanelli v Italy: ECHR 27 Jan 2015

The applicants allege in particular that the refusal to transcribe their child’s birth certificate in the records of the Italian civil status and remoteness of the minor are incompatible with Article 8 of the Convention.

Judges:

Isil Karakas, P

Citations:

25358/12 – Chamber Judgment, [2015] ECHR 76

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 24 October 2022; Ref: scu.541936

Kincses v Hungary: ECHR 27 Jan 2015

The applicant alleged, in particular, that his freedom of expression had been infringed on account of him having been fined for having criticised, as a legal representative, the sitting judge in one of his cases. He also claimed that the length of the disciplinary proceedings conducted against him was incompatible with Article 6 of the Convention.

Judges:

Guido Raimondi, P

Citations:

66232/10 – Chamber Judgment, [2015] ECHR 82

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Jurisdiction:

Human Rights

Human Rights

Updated: 24 October 2022; Ref: scu.541933

Papillo v Switzerland: ECHR 27 Jan 2015

The applicant alleged that his detention was contrary to Article 5-1 in that it was held in prison and not in a health care clinic. Relying on Article 5-5, it also complains about not being able to obtain compensation in this regard.

Judges:

Guido Raimondi, P

Citations:

43368/08 – Chamber Judgment, [2015] ECHR 86

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 24 October 2022; Ref: scu.541935