Category: Human Rights

Lamguindaz v The United Kingdom: ECHR 23 Jun 1993

There was no need for the court to determine the issue of whether there had been a breach of the convention after a friendly settlement
Hudoc Struck out of the list (friendly settlement)

Citations:

Times 11-Aug-1993, 16152/90, [1993] ECHR 26

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 21 July 2022; Ref: scu.165268

Duggan v Governor of Full Sutton Prison and Another: ChD 28 Feb 2003

On reception into prison, the prison took cash from the claimant which was returned on his release. He claimed that it should have been invested.
Held: The credit of the receipt into the books of the prison created only a debt as between the prison and prisoner. No trust was created. What was taken was cash, and cash was returned. He had not been deprived of his property, and there was no rule against him making a request for the money to be paid into an interest bearing account. The right against interruption of the right to peaceful enjoyment had not been infringed.

Judges:

Hart J

Citations:

Times 25-Mar-2003, Gazette 09-May-2003, [2003] 2 All ER 678

Statutes:

Prison Rules 1999 (1999 No 728) 43(3), European Convention on Human Rights 1

Jurisdiction:

England and Wales

Citing:

Appealed to – Duggan v Governor of Full Sutton Prison and Another CA 10-Feb-2004
The prisoner had money removed and kept for him on entry to prison. Upon release he claimed that the money had been held in trust, and should have been invested for some return. He appealed a finding that the money had been held simply as a debt . .

Cited by:

Appeal from – Duggan v Governor of Full Sutton Prison and Another CA 10-Feb-2004
The prisoner had money removed and kept for him on entry to prison. Upon release he claimed that the money had been held in trust, and should have been invested for some return. He appealed a finding that the money had been held simply as a debt . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 21 July 2022; Ref: scu.180382

Y v Slovenia: ECHR 28 May 2015

ECHR Article 8-1
Respect for private life
Positive obligations
Failure to protect complainant’s personal integrity in criminal proceedings concerning sexual abuse: violation
Facts – In 2001, at the age of 14, the applicant was allegedly victim of repeated sexual assaults by a family friend, X. Following a criminal complaint by the applicant’s mother, investigations started in 2003 and criminal proceedings were brought against X in 2007. In 2009, after having held 12 hearings in total, the domestic courts acquitted X of all charges on the ground that some of the applicant’s allegations concerning X’s physical conditions had been disproved by an expert, thus making it impossible, in the domestic courts’ view, to prove X’s guilt beyond reasonable doubt. The State Prosecutor’s appeal against that judgment was rejected in 2010, as was the applicant’s request to the Supreme State Prosecutor for the protection of legality a few months later.
Law – Article 8: The Court had to examine whether the respondent State had afforded sufficient protection of the applicant’s right to respect for her private life, and especially for her personal integrity, with respect to the manner in which she had been questioned during the criminal proceedings against her alleged sexual abuser. In so doing, it had to strike a fair balance between the rights of the applicant as a victim called upon to testify in criminal proceedings, protected by Article 8, and those of the defence, namely the right of the accused to call and cross-examine witnesses set out in Article 6 – 3 (d). Unlike the position in other similar cases previously examined by the Court, which had all been brought by the accused persons, in the present case the Court had to examine this issue from the perspective of the alleged victim.
In the instant case, the interests of securing a fair trial required X to be provided an opportunity to cross-examine the applicant, especially as the applicant’s testimony at the trial provided the only direct evidence in the case and the other evidence presented was conflicting.
However, given that criminal proceedings concerning sexual offences were perceived as a very unpleasant and prolonged experience by the victims, and that a direct confrontation between those charged with sexual abuse and their alleged victims involved a risk of further traumatisation for the victims, personal cross-examination by the defendant had to be subject to the most careful assessment by the national courts. Indeed, several international instruments, including European Union law, provided that certain rights should be granted to victims of, inter alia, sexual abuse, including the duty of the State to protect them from intimidation and repeat victimisation when providing testimony of the abuse.
In this respect, the Court noted that the applicant’s questioning had stretched over four trial hearings held over seven months, a lengthy period which in itself raised concerns, especially given the absence of any apparent reason for the long intervals between the hearings. Moreover, at two of those hearings X had personally cross-examined the applicant, continuously contesting the veracity of her answers and addressing her with questions of a personal nature. In the Court’s view, those questions were aimed at attacking the applicant’s credibility as well as at degrading her character. However, despite the duty incumbent on the judicial authorities to oversee the form and content of X’s questions and comments and, if necessary, to intervene, the presiding judge’s intervention had been insufficient to mitigate what had clearly been a distressing experience for the applicant.
As to the applicant’s claim that X’s counsel should have been disqualified from the proceedings as he had been consulted by her on the sexual assaults shortly after the alleged events took place, the Court found that the applicable domestic law, or the manner in which it had been applied in the present case, had not taken sufficient account of the applicant’s interests. This was so because the negative psychological effect of being cross-examined by X’s counsel had considerably exceeded the apprehension the applicant would have experienced if she had been questioned by another lawyer. Moreover, any information he might have received from her in his capacity as a lawyer should have been treated as confidential and should not have been used to benefit a person with adverse interests in the same matter.
The Court also noted the inappropriateness of the questions put to the applicant by the gynaecologist appointed by the district court to establish whether she had engaged in sexual intercourse at the material time. In this regard, the authorities were required to ensure that all participants in the proceedings called upon to assist them in the investigation or the decision-making process treated victims and other witnesses with dignity and did not cause them unnecessary inconvenience. However, the appointed gynaecologist not only lacked proper training in conducting interviews with victims of sexual abuse, but had also addressed the applicant with accusatory questions and remarks exceeding the scope of his task and of his medical expertise. As a consequence, the applicant had been put in a defensive position unnecessarily adding to the stress of the criminal proceedings.
Even though the domestic authorities had taken a number of measures to prevent further traumatisation of the applicant, such measures had ultimately proved insufficient to afford her the protection necessary to strike an appropriate balance between her rights and interests protected by Article 8 and X’s defence rights protected by Article 6 of the Convention.
Conclusion: violation (six votes to one).
The Court also found unanimously a violation of Article 3 on account of the failure of the authorities of the respondent State to ensure a prompt investigation and prosecution of the applicant’s complaint of sexual abuse.
Article 41: EUR 9,500 in respect of non-pecuniary damage.
(See also S.N. v. Sweden, 34209/96, 2 July 2002; Aigner v. Austria, 28328/03, 10 May 2012; and the Factsheet on Violence against women)

Citations:

41107/10 – Legal Summary, [2015] ECHR 532

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Family

Updated: 21 July 2022; Ref: scu.547592

Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department: CA 6 May 2015

Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion.
Held: The appeals were dismissed.

Judges:

Longmore, Gloster, Sales LJJ

Citations:

[2015] EWCA Civ 440, [2015] WLR(D) 205, [2016] INLR 198, [2015] Imm AR 1201, [2016] 1 WLR 390

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .

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 . .
Appeal from – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
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.

Immigration, Human Rights

Updated: 21 July 2022; Ref: scu.546407

Jeunesse v The Netherlands: ECHR 3 Oct 2014

(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing interests involved: the husband and three children were all citizens of the Netherlands with the right to enjoy family life there; the applicant had lost her Dutch nationality when Suriname became independent and not through her own choice; she had been living in the Netherlands for 16 years and had no criminal record; although there were no ‘insurmountable obstacles’ to the whole family settling in Suriname, they would experience a degree of hardship if forced to do so; and the Dutch authorities had paid insufficient attention to the problems the children would face in either having their whole lives disrupted by a move to Suriname or being separated from their primary carer. In the circumstances, it was ‘questionable whether general immigration policy considerations of themselves can be regarded as sufficient justification for refusing the applicant residence in the Netherlands’
‘Where children are involved, their best interests must be taken into account. . . On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. . . Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it.’

Citations:

12738/10 – Grand Chamber Judgment, [2014] ECHR 1036, ECLI:CE:ECHR:2014:1003JUD001273810, (2015) 60 EHRR 17

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Judgment – Jeunesse v The Netherlands (Legal Summary) ECHR 3-Oct-2014
ECHR Article 8-1
Respect for family life
Refusal to grant residence permit on ground of family life despite existence of exceptional circumstances: violation
Facts – The applicant, a Surinamese . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
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 . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Cited – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 21 July 2022; Ref: scu.537564

RGB v Cwm Taf Health Board and Others: CoP 10 Oct 2013

Application for declarations that the respondent health Board had improperly interfered with the claimant’s right to family life in associating with his wife.
Held: The application failed: ‘Mrs B did not want to see her husband or want him to be involved in her care. In short, she wanted to end her relationship with him. These were her wishes. There was no undue influence. She had capacity at the time.2

Judges:

Moor J

Citations:

[2013] EWHC B23 (COP), [2013] EWCOP B23

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Human Rights, Health Professions, Health, Torts – Other

Updated: 21 July 2022; Ref: scu.518976

MF (Nigeria) v Secretary of State for The Home Department: CA 8 Oct 2013

The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the reference to exceptional circumstances (an expression which had been derived from the Jeunesse line of case law) served the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who did not satisfy rules 398 and 399 or 399A, and that it was only exceptionally that such foreign criminals would succeed in showing that their rights under article 8 trumped the public interest in their deportation (paras 40 and 41). The court went on to explain that this did not mean that a test of exceptionality was being applied. Rather, the word ‘exceptional’ denoted a departure from a general rule:
‘The general rule is that, in the case of a foreign prisoner to whom paragraphs 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the ‘exceptional circumstances’.’
The court added that ‘the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence’
and . . ‘In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual’s article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal.’

Judges:

Lord Dyson MR, Davis, Gloster LJJ

Citations:

[2013] EWCA Civ 1192, [2013] WLR(D) 380, [2014] 1 WLR 544, [2014] INLR 18, [2014] 2 All ER 543, [2014] Imm AR 211

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

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 . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 21 July 2022; Ref: scu.516321

Ymeraga v Ministre Du Travail, De L’Emploi Et De L’Immigration: ECJ 8 May 2013

ECJ Citizenship of the Union – Article 20 TFEU – Right of residence of third-country nationals who are family members of a Union citizen who has not exercised his right of freedom of movement – Fundamental rights

Judges:

R. Silva de Lapuerta Rap P

Citations:

C-87/12, [2013] EUECJ C-87/12, ECLI:EU:C:2013:291, [2013] 3 CMLR 33

Links:

Bailii

Jurisdiction:

European

Immigration, Human Rights

Updated: 21 July 2022; Ref: scu.503495

Attorney General v Random House Group Ltd: QBD 15 Jul 2009

The Attorney-General sought to restrain the publication of a book which she said would prejudice the defendants in a forthcoming criminal trial. The publisher said that a restraint would be a disproportionate interference in its Article 10 rights.
Held: The court considered the proper reluctance to restrain an anticipated contempt of court.

Judges:

Tugendhat J

Citations:

[2009] EWHC 1727 (QB), [2010] EMLR 9

Links:

Bailii

Statutes:

European Convention on Human Rights 10, Contempt of Court Act 1981 2(2)

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General v Guardian Newspapers Ltd (No 3) CA 1992
To found a complaint of contempt the risk arising from the publication must be practical rather than theoretical or illusory. Publicity concerning a named defendant before a jury during the jury trial of another charge did not give rise to a serious . .
Cited – Leary v Britiah Broadcasting Corporatin CA 29-Sep-1989
Lord Donaldson MR considered an application for an injunction to prevent a publication which it was said would create a contempt of court, and said: ‘I am very concerned that no one should think that on a speculative basis you can go to the courts . .
Cited – Attorney General v MGN Limited CA 1997
There had been, over some years, ‘saturation coverage’ of the relationship between a television personality and her boyfriend. Disclosures were made about his violence and his previous convictions. He came to be arrested and charged with a serious . .
Cited – Attorney-General v News Group Newspapers Ltd CA 1986
When considering a complaint of contempt of court against a newspaper, it should be recognised that any criminal trial, by its very nature, causes all involved in it to become progressively more inward looking, with the capacity to study the . .
Cited – Attorney-General v English HL 1981
The risk of impediment or prejudice to a trial from a publication has to be assessed at the date of publication. ‘Substantial risk’ in section 2(2) means a risk which is more than remote. Lord Diplock said: ‘Next for consideration is the . .
Cited – Attorney General v Independent Television News and Others CA 1995
Leggatt LJ said that counsel for the Attorney General was correct when he submitted that: ‘It does not follow that because a risk had been created by the broadcast, further publication in newspapers would not create fresh and added risk of . .
Cited – Attorney General v MGN Limited CA 1997
There had been, over some years, ‘saturation coverage’ of the relationship between a television personality and her boyfriend. Disclosures were made about his violence and his previous convictions. He came to be arrested and charged with a serious . .
Cited – Attorney-General v British Broadcasting Corporation; Same v Hat Trick Productions Ltd CA 11-Jun-1996
The mention of a case on a television programme remained a contempt of court, despite the humorous context given to the remarks in the broadcast.
Auld LJ said: ‘The degree of risk of impact of a publication on a trial and the extent of that . .

Cited by:

Cited – HM Attorney General v MGN Ltd and Another Admn 29-Jul-2011
The police arrested a man on suspicion of the murder of a young woman. He was later released and exonerated, and a second man arrested and later convicted. Whilst the first was in custody the two defendant newspapers, the Daily Mirror and the Sun . .
Lists of cited by and citing cases may be incomplete.

Media, Contempt of Court, Human Rights

Updated: 21 July 2022; Ref: scu.376265

NA v The United Kingdom: ECHR 17 Jul 2008

The court noted that it had accepted appeals by 342 Tamils against being returned to Sri Lanka from the UK for fear of ill-treatment or persecution since 2007. It did so again.

Judges:

L Garlicki, President and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, J. Sikuta, P. Hirvela and L. Bianku

Citations:

[2008] ECHR 616, 25904/07, Times 28-Jul-2008

Links:

Bailii

Statutes:

European Convention on Human Rights 2 3

Jurisdiction:

Human Rights

Citing:

See Also – NA v The United Kingdom ECHR 21-Jun-2007
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 21 July 2022; Ref: scu.279115

Marper v United Kingdom; S v United Kingdom: ECHR 16 Jan 2007

Decision as to admissibility – the applicants complained of the retention by police of DNA and fingerprint samples and records.
Held: Admissible.

Judges:

J. Casadevall, P

Citations:

[2007] EHCR 110, 30562/04

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

At Court of Appeal – Regina (on the application of S) v Chief Constable of South Yorkshire Police, Regina (Marper) v Same CA 12-Sep-2002
The applicants had been charged with offences, but later acquitted. On arrest they had had DNA samples and fingerprints taken, and the details added to the national DNA database. The police refused to remove the records after the acquittals.
At First Instance – Regina (S) v Chief Constable of South Yorkshire; Regina (Marper) v Same Admn 22-Mar-2002
The police authority took samples of DNA and fingerprints from the claimants whilst under arrest. After their cases had been dismissed or failed, they requested destruction of the samples and records, but this was refused.
Held: There was no . .
At House of Lords – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .

Cited by:

See Also – Marper v United Kingdom; S v United Kingdom ECHR 27-Feb-2008
Grand Chamber – Press Release – The applicant complained of the retention by the police of DNA and fingerprint records – The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 21 July 2022; Ref: scu.278517

Bersunkayeva v Russia: ECHR 4 Dec 2008

The applicant alleged that her son had disappeared following his unacknowledged detention and that there had been no adequate investigation into the matter. She also claimed that she had suffered mentally on account of these events and complained of the lack of effective remedies in respect of those violations. She relied on Articles 2, 3, 5 and 13 of the Convention.

Citations:

27233/03, [2008] ECHR 1599

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights

Updated: 21 July 2022; Ref: scu.278482

Dogru v France: ECHR 4 Dec 2008

The applicant alleged a violation of her right to religious freedom and her right to education guaranteed by Article 9 of the Convention and Article 2 of Protocol No. 1 respectively. As a muslim, she had wanted to wear a headscarf when attending physical education classes. She had been expelled from school. The repondent said that it was following a policy of secularism.
Held: The interference had been justified as a matter of principle and proportionate to the aim pursued.The expulsion was not disproportionate. She was able to continue her schooling by correspondence classes, and her religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order. The decision complained of was based on those requirements and not on any objections to the applicant’s religious beliefs

Judges:

Peer Lorenzen, P

Citations:

27058/05, [2008] ECHR 1579, [2009] ELR 77, (2009) 49 EHRR 8

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

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, Education

Updated: 21 July 2022; Ref: scu.278484

Gandaloyeva v Russia: ECHR 4 Dec 2008

The applicant alleged that her husband had been killed by Russian military servicemen, that domestic authorities had failed to conduct an effective investigation into the crime and that no effective domestic remedies were available to her in respect of these violations of the Convention.

Citations:

14800/04, [2008] ECHR 1597

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights

Updated: 21 July 2022; Ref: scu.278485

O’Donoghue and Others v United Kingdom: ECHR 17 Nov 2008

Citations:

34848/07, [2008] ECHR 1574

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – O’Donoghue and Others v United Kingdom ECHR 14-Dec-2010
. .
See Also – O’Donoghue and Others v United Kingdom ECHR 2-Dec-2011
Execution of the judgments of the European Court of Human Rights . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 21 July 2022; Ref: scu.278464

Armonas v Lithuania: ECHR 25 Nov 2008

The Court emphasised the duty of the press to impart information and ideas on matters of public interest, but noted that: ‘a fundamental distinction needs to be made between reporting facts – even if controversial – capable of contributing to a debate in a democratic society and making tawdry allegations about an individual’s private life’;

Judges:

Francoise Tulkens, P

Citations:

(2009) 48 EHRR 53, [2009] EMLR 7, 36919/02, [2008] ECHR 1526, 27 BHRC 389

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Cited by:

See Also – Armonas v Lithuania ECHR 2-Dec-2010
. .
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 21 July 2022; Ref: scu.278443

Regina v Manchester Crown Court, ex parte McCann and others: QBD 22 Nov 2000

An application for an anti-social behaviour order against an individual was a civil, not a criminal proceeding. The standard of evidence required was on the balance of probability; the civil standard. Such proceedings were not subject to the additional protection of the human rights convention. Necessarily, the circumstances from which protection was sought were ones where proof will not be easily found. There is no overriding test within domestic law for deciding whether proceedings are civil or criminal. The procedure here was one generally used for civil proceedings, and no punishment was properly involved at this stage. At most there would be a restriction on activities of those subject to the order. Lord Woolf said: ‘The significance of whether the proceedings are civil or criminal arises because of the difficulty that exists in relation to the proof of the sort of conduct against which section 1 is designed to provide protection. Understandably, in a locality those who are subject to anti-social behaviour are chary about giving evidence in criminal proceedings. It is in particular because of those difficulties that, after a consultation process, the legislation which is contained in Part 1 of the 1998 Act was passed. The object of making the proof of conduct which is anti-social more easy to prove would be defeated if in fact the proceedings were criminal. Then the normal rules of evidence which apply to criminal proceedings would have to be complied with and furthermore the proceedings would be subject to the additional protection provided by Article 6 of the European Convention in relation to criminal proceedings.’

Judges:

Lord Woolf

Citations:

Gazette 11-Jan-2001, Times 22-Dec-2000, [2002] 3 WLR 1313, [2000] EWHC 565 (QB)

Links:

Bailii

Statutes:

Crime and Disorder Act 1998 1, European Convention on Human Rights 5.1

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Manchester Crown Court ex parte Rogers (Legal Professional Privilege) Admn 2-Feb-1999
The police had sought disclosure from the applicant’s solicitors of records of the time at which the applicant arrived at the solicitors’ premises on a particular date and like documents.
Held: Such records are not privileged because they did . .

Cited by:

Appeal from – Regina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Cited – Regina (Smith) v Parole Board (No 2) CA 31-Jul-2003
The applicant having been released on licence had his licence revoked. The decision had been made at a hearing which considered evidence on paper only, which he said was unfair.
Held: The case law had maintained a proper distinction between . .
At First Instance – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Crime, Administrative, Human Rights

Updated: 21 July 2022; Ref: scu.87261

Kok v The Netherlands: ECHR 1999

Following a police raid leading to the discovery of a cache of arms, the police took a statement from an anonymous witness as to the delivery of the arms to the house (though the precise date of delivery was withheld). The investigating judge heard evidence satisfying her that the witness’s desire for anonymity was based on well-founded fear. She heard and saw the witness’s evidence direct, and then decided which answers could be relayed, with voice distortion, to the prosecutor and the applicant’s counsel who were in another room. Defence counsel were able to submit questions to the witness. The applicant complained inter alia that the withholding of the precise date made it impossible to show an alibi. The Strasbourg Court was satisfied with the procedures. It was satisfied that, in contrast with Van Mechelen, the evidence was not based to a decisive extent on the anonymous witness.
Held: ‘In the Court’s view, in assessing whether the procedures involved in the questioning of the anonymous witness were sufficient to counterbalance the difficulties caused to the defence due weight must be given to the above conclusion that the anonymous testimony was not in any respect decisive for the conviction of the applicant. The defence was thus handicapped to a much lesser degree.’

Citations:

43149/98, [2000] ECHR 706

Links:

Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 21 July 2022; Ref: scu.270126

Law Society v Salsbury: CA 25 Nov 2008

The Society appealed against an order quashing the striking-off of the solicitor.
Held: Bolton was still the leading case though the solicitor must be given an opportunity for a fair trial. Though it was not necessary to show a very strong case before overturning a decision of a professional tribunal, the court must give it approriate respect. Here the tribunal had made no error of law, and had an evidential basis for its conclusions. The High Court had been wrong to interfere with the decision.
There exists a ‘very small residual category where striking off is not appropriate’ for dishonesty in a solicitor.
Jackson LJ said: ‘It is now an overstatement to say that ‘a very strong case’ is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.’

Judges:

Sir Mark Potter, President, Lady Justice Arden and Lord Justice Jackson

Citations:

[2008] EWCA Civ 1285, Times 15-Jan-2009, [2009] 2 All ER 437, [2009] 1 WLR 1286

Links:

Bailii

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Citing:

Cited – Bolton v The Law Society CA 8-Dec-1993
The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that . .

Cited by:

Cited – Solicitors Regulation Authority v Dennison Admn 22-Feb-2011
The Authority appealed against the sentence imposed on the respondent by the Soicitoirs Discipinary Tribunal. He had been found to have taken undisclosed referral fees in personal injury litigation giving rise to conflicts of interest and to have . .
Cited – Harris v The Solicitors Regulation Authority Admn 28-Jun-2011
The solicitor appealed against findings and orders regarding allegations of having failed to disclose to clients referral fees paid by him to third parties, and of having given misleading fees information.
Held: The appellant had admitted . .
Cited – Bass and Another v Solicitors Regulation Authority Admn 18-Jul-2012
The appellants challenged the decision of the Solicitors Disciplinary Tribunal finding them in breach of the 1998 Rules in that they had failed to prevent a former partner making unauthorised, if small, withdrawals of residual balances from client . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 19 July 2022; Ref: scu.278249

Leela Forderkreis EV And Others v Germany: ECHR 6 Nov 2008

Judges:

Peer Lorenzen, P

Citations:

58911/00, [2008] ECHR 1269, (2009) 49 EHRR 5

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

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

Updated: 19 July 2022; Ref: scu.278171

H v Tomlinson: CA 13 Nov 2008

The court was aksed, where a claim for damages for libel and slander is dismissed because the sting of the defamation is defeated by the defence of justification, can the same remarks nonetheless found a claim for breach of the claimant’s Article 8 right to respect for his privacy and reputation?

Judges:

Ward, Sedley, Longmore LJJ

Citations:

[2009] ELR 14, [2008] EWCA Civ 1258

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Defamation, Human Rights

Updated: 19 July 2022; Ref: scu.277917

Demir And Baykara v Turkey: ECHR 12 Nov 2008

Civil servants formed a trade union which entered into collective negotiation with a local authority resulting in an agreement. Union members then sued the authority for failing to fulfil the agreement. The local Court found in favour of the members. The Court of Cassation first quashed the ruling, on the basis that, even though there was no legal bar preventing civil servants from forming unions, they were not, as the law stood, authorised to enter into collective agreements. The District Court then confirmed its earlier judgment on the basis that, despite the fact that the domestic statute contained no express provision affording unions formed by civil servants the right to enter into collective agreements, this omission had to be remedied in the light of international treaties such as the relevant Convention of the International Labour Organisation, which had already been ratified by Turkey. The Court of Cassation again quashed the judgment of the District Court. It ruled that, at the time the union was formed, the applicable law did not permit civil servants to form trade unions. The union could not rely on the international labour conventions that dealt with such matters as they had not yet been incorporated into domestic law and no implementing legislation had been enacted. The Court of Cassation concluded that the union did not have legal personality or the capacity to enter into a collective agreement. As one consequence of the ruling, following an audit of the local authority’s accounts by the Audit Court, the members of the union were required to reimburse the additional income they had purportedly received as a result of the defunct collective agreement.
Held: (Grand Chamber) The Court reviewed the development of its interpretation of the requirements of article 11: ‘The development of the Court’s case-law concerning the constituent elements of the right of association can be summarised as follows: the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade-union members by the union’s collective action, the conduct and development of which the Contracting States must both permit and make possible (see National Union of Belgian Police, cited above, ss 39; Swedish Engine Drivers’ Union, cited above, ss 40; and Schmidt and Dahlstrom v. Sweden, 6 February 1976, ss 36, Series A no. 21).
As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court’s view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see National Union of Belgian Police, cited above, ss 39; Swedish Engine Drivers’ Union, cited above, ss 40; and Schmidt and Dahlstrom, cited above, ss 36).
As regards the right to enter into collective agreements, the Court initially considered that Article 11 did not secure any particular treatment of trade unions, such as a right for them to enter into collective agreements (see Swedish Engine Drivers’ Union). It further stated that this right in no way constituted an element necessarily inherent in a right guaranteed by the Convention (see Schmidt and Dahlstrom).
Subsequently, in the case of Wilson, National Union of Journalists and Others, the Court considered that even if collective bargaining was not indispensable for the effective enjoyment of trade-union freedom, it might be one of the ways by which trade unions could be enabled to protect their members’ interests. The union had to be free, in one way or another, to seek to persuade the employer to listen to what it had to say on behalf of its members (Wilson, National Union of Journalists and Others).
As a result of the foregoing, the evolution of case-law as to the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade-union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, whilst in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law.
From the Court’s case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (see, as a recent authority, Tum Haber Sen and Cinar, cited above), the prohibition of closed-shop agreements (see, for example, Srensen and Rasmussen, cited above) and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members (Wilson, National Union of Journalists and Others).
This list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In this connection it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ss 100, ECHR 2003-II; and Selmouni v. France [GC], no. 25803/94, ss 101, ECHR 1999-V).’

Citations:

34503/97, [2008] ECHR 1345, (2009) 48 EHRR 54, [2009] IRLR 766

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – Metrobus Ltd v Unite the Union CA 31-Jul-2009
The union sought leave to appeal against an interim injunction restraining it from calling a strike. It now called in aid also its members’ Article 11 Human Rights. The company had questioned whether the ballot met the requirements of the 1992 Act. . .
Judgment – Demir And Baykara v Turkey ECHR 13-Dec-2011
Supervision of execution of final judgment . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 19 July 2022; Ref: scu.278149

Cemalettin Canli v Turkey: ECHR 18 Nov 2008

The Court found interference in the applicant’s right to respect of his private life in that the police prepared and submitted to a domestic court an inaccurate report in the context of criminal proceedings against him.

Citations:

22427/04, [2008] ECHR 1458

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – L, Regina (On the Application of) v Commissioner of Police of the Metropolis SC 29-Oct-2009
Rebalancing of Enhanced Disclosure Requirements
The Court was asked as to the practice of supplying enhanced criminal record certificates under the 1997 Act. It was said that the release of reports of suspicions was a disproportionate interference in the claimants article 8 rights to a private . .
See Also – Cemalettin Canli v Turkey ECHR 13-Dec-2011
Execution of the judgment of the European Court of Human Rights . .
Cited – JR38, Re Application for Judicial Review (Northern Ireland) SC 1-Jul-2015
The appellant was now 18 years old. In July 2010 two newspapers published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 19 July 2022; Ref: scu.278145

Secic v Croatia: ECHR 31 May 2007

The applicant had been attacked and beaten by skinheads shouting racial abuse. He complained that as a Roma, the police had failed through race discrimination properly to investigate his complaint.
Held: The court repeated the statement that article 3 may give rise to a positive obligation to conduct an official investigation. The obligation on the state to conduct an official investigation is one of means, not result
This was not, in principle, limited to cases of ill-treatment by state agents. The court said: ‘ . . the court reiterates that the scope of the . . obligation by the state is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident. A requirement of promptness and reasonable expedition of the investigation is implicit in this context.’

Citations:

40116/02, [2007] ECHR 1159, (2007) 23 BHRC 24, (2009) 49 EHRR 18

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Yasa v Turkey ECHR 2-Sep-1998
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); No violation of Art. 2; Violation of Art. 2 (effective investigation); . .
Cited – Menson v United Kingdom ECHR 6-May-2003
There had been a racist attack. The victim was set on fire and killed in the street by assailants. His relatives sought compensation. However the assailants were not agents of the state and they were duly prosecuted, convicted and sentenced. No . .

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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.277876

Warner v Verfides: ChD 29 Oct 2008

The deceased bankrupt’s Autralian trustees sought disclosure of documents recording his dealings in the UK. Third party Swiss lawyers now sought to intervene to say that such disclosure would breach the confidence of many of their clients. Redactions were agreed, and the court now looked to the costs.
Held: The interveners’ human rights had been engaged by the request. The court considered the technical meaning of correspondence within article 8, saying ‘To construe the term as applying only to letters still in the possession of the writer or in the process of transmission to the intended recipient appears unduly restrictive. In ordinary parlance, the term would be expected to apply to exchanges of letters in whosever hands they happened to be. ‘ and the interveners’ Article 8 rights are engaged by an application for production of documents in the hands of Verfides that were generated in the course of, or otherwise relate to, the interveners’ business activities. After initial doubts, the interveners had conducted their objections properly. Trustees and interveners were to bear their own costs.

Judges:

John Martin, QC

Citations:

[2008] EWHC 2609 (Ch)

Links:

Bailii, Times

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Wills and Probate, Insolvency, Costs, Human Rights

Updated: 19 July 2022; Ref: scu.277551

Kay And Others v United Kingdom: ECHR 17 Oct 2008

Citations:

37341/06, [2008] ECHR 1193, [2011] HLR 13

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

Welcomed – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .

Cited by:

See Also – Kay And Others v United Kingdom ECHR 21-Sep-2010
(Fourth Section) After carefully considering the various views expressed in the House of Lords in Kay v Lambeth [2006] 2 AC 465 and Doherty v Birmingham [2009] 1 AC 367, and the relevant decisions of the Court of Appeal, the EurCtHR stated, at paras . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 19 July 2022; Ref: scu.277470

Smirnova v Russia: ECHR 24 Jul 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1+5-3 ; Violation of Art. 6-1 ; Violation of Art. 8 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award

Citations:

46133/99, [2003] ECHR 397, 48183/99

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 19 July 2022; Ref: scu.277258