Kuric And Others v Slovenia: ECHR 12 Mar 2014

Dean Spielmann, P
26828/06 – Grand Chamber Judgment, [2014] ECHR 262, [2014] ECHR 489
Bailii, Bailii
European Convention on Human Rights
See AlsoKuric And Others v Slovenia ECHR 26-Jun-2012
Grand Chamber – Yugoslav citizens resident in Slovenia at the time of independence, failed to acquire Slovenian citizenship and their names were ‘erased’ from the register of permanent residents, thus making them stateless. It was not in dispute . .
See AlsoKuric And Others v Slovenia ECHR 12-Mar-2014
Grand Chamber – Article 41
Just satisfaction
Award in respect of pecuniary damage incurred by the applicants as a result of unlawful removal from the Register of Permanent Residents
Article 46
Pilot judgment
General . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2021; Ref: scu.522591

Tesic v Serbia: ECHR 11 Feb 2014

ECHR Article 10-1- Freedom of expression
Applicant’s precarious financial situation as a result of award of damages for defamation against her: violation
Facts – In 2006 the applicant, a pensioner suffering from various illnesses, was found guilty of defaming her lawyer and ordered to pay him 300,000 dinars (RSD) in compensation, together with default interest, plus costs in the amount of RSD 94,120 (equivalent to approximately EUR 4,900 in all). In July 2009 the Municipal Court issued an enforcement order requiring two thirds of the applicant’s pension to be transferred to the lawyer’s bank account each month, until the sums awarded had been paid in full. After these deductions the applicant was left with approximately EUR 60 a month on which to live.
Law – Article 10: The impugned measures had undoubtedly constituted an interference with the applicant’s right to freedom of expression. They had been prescribed by law and had been adopted in pursuit of a legitimate aim, namely ‘for the protection of the reputation’ of another.
The damages plus costs awarded against the applicant were equal to a total of more than 60% of her monthly pensions. This sum was also very similar to the amount awarded in a separate civil suit concerning the same issue brought against, inter alia, the newspaper and the Autonomous Province of Vojvodina, both of which were certainly more financially viable. Furthermore, it could not be said that the applicant’s statement in respect of her former counsel was merely a gratuitous personal attack. After all, the police had clearly seen some merit in the allegations. Moreover, the Government’s assertion that a discussion of a practising lawyer’s professional conduct was clearly of no public interest was in itself dubious, particularly bearing in mind the role of lawyers in the proper administration of justice. Finally but most strikingly, the municipal court had issued an enforcement order requiring two thirds of the applicant’s pension to be transferred to her lawyer’s bank account each month, notwithstanding that the applicable law had provided that that was the maximum that could be withheld, thus clearly leaving room for a more nuanced approach. By 30 June 2013 the applicant had paid a total of approximately EUR 4,350, but with accrued and future interest, she would have to continue with the payments for approximately another two years. In May 2012 her monthly pension was some EUR 170, so that after deductions she was left with approximately EUR 60 on which to live and buy her monthly medication, which at approximately EUR 44, she could no longer afford. This was a particularly precarious situation for an elderly person suffering from a number of serious illnesses. Therefore, the interference in question had not been necessary in a democratic society.
Conclusion: violation (six votes to one).
Article 41: EUR 6,000 in respect of non-pecuniary damage; EUR 5,500 in respect of pecuniary damage.

4678/07 50591/12 – Legal Summary, [2014] ECHR 282
European Convention on Human Rights

Human Rights

Updated: 01 December 2021; Ref: scu.522580

Tali v Estonia: ECHR 13 Feb 2014

ECHR Article 3 – Degrading treatment – Inhuman treatment
Use of pepper spray against an aggressive prisoner and his confinement to restraint bed for 3 hours and 40 minutes: violation
Facts – While serving a prison sentence, the applicant refused to comply with the orders of prison officers. Pepper spray, physical force and a telescopic baton were used against him in order to overcome his resistance. He was then handcuffed and later confined in a restraint bed for three hours and forty minutes. As a result he sustained a number of injuries, including haematomas and blood in his urine. Criminal proceedings against the prison guards were discontinued following a finding that the use of force had been lawful as the applicant had not complied with their orders and had behaved aggressively. A claim for compensation filed by the applicant was dismissed.
Law – Article 3: The Court was aware of the difficulties the States might encounter in maintaining order and discipline in penal institutions. This was particularly so in cases of unruly behaviour by dangerous prisoners, a situation in which it was important to find a balance between the rights of different detainees or between the rights of the detainees and the safety of the prison officers. The applicant’s character and prior behaviour had given the prison officers reason to be alert in relation to their safety and for taking immediate measures when he had displayed disobedience, threats and aggression towards them. Moreover, the domestic authorities had established that the applicant had behaved aggressively and that it had therefore been justified to take measures to combat his aggression.
However, as regards the legitimacy of the use of pepper spray, according to the concerns expressed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), it was a potentially dangerous substance that should not be used in confined spaces. If exceptionally it needed to be used in open spaces, there should be clearly defined safeguards in place. Pepper spray should never be deployed against a prisoner who had already been brought under control. Although pepper spray was not considered a chemical weapon and its use was authorised for the purpose of law enforcement, it could produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis and allergies. In strong doses it might cause necrosis of the tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging. Having regard to those potentially serious effects on the one hand and the alternative equipment at the disposal of the prison guards on the other, the circumstances had not justified its use in the instant case.
As regards the use of the restraint bed, the period for which the applicant had been strapped had been shorter than in the case Julin v. Estonia (9 hours), his situation had been assessed on an hourly basis and he had also been checked on by medical staff. However, those factors had not rendered that measure justified in the circumstances of the instant case. The means of restraint at issue should never be used as a means of punishment, but rather in order to avoid self-harm or serious danger to other individuals or to prison security. It had not been convincingly shown that after the confrontation with the prison officers had ended the applicant – who had been locked in a single-occupancy disciplinary cell – had posed a threat to himself or others. Furthermore, the period for which he had been strapped to the restraint bed was by no means negligible and his prolonged immobilisation must have caused him distress and physical discomfort. Considering the cumulative effect of those measures, the applicant had been subjected to inhuman and degrading treatment.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
(See also Oya Ataman v. Turkey, 74552/01, 5 December 2006, Information Note 92; Ali Gunes v. Turkey, 9829/07, 10 April 2012, Information Note 151; Julin v. Estonia, 16563/08 et al., 29 May 2012, Information Note 152; and Izci v. Turkey, 42606/05, 23 July 2013, Information Note 165)

66393/10 – Legal Summary, [2014] ECHR 294
European Convention on Human Rights

Human Rights

Updated: 01 December 2021; Ref: scu.522579

MTU Liivimaa Lihaveis v Eesti-Lati programmi 2007-2013 Seirekomitee: ECJ 13 Mar 2014

ECJ Opinion – Regulation (EC) No 1083/2006 – Regulation (EC) No 1080/2006 – European Regional Development Fund – Powers of Monitoring Committee for an operational programme aiming at the promotion of European territorial cooperation – Joint programme of two Member States – Division of responsibilities between Monitoring Committee and Managing Authority of the programme – Prohibition of judicial review of Monitoring Committee decisions – Article 47 of the EU Charter of Fundamental Rights – Notion of implementing EU law – Acts of bodies, offices or agencies of the Union under Article 263 TFEU – Reviewable acts – National procedural autonomy – Principles of effectiveness and equivalence

Jaaslinen AG
C-562/12, [2014] EUECJ C-562/12
Regulation (EC) No 1083/2006, Regulation (EC) No 1080/2006

Human Rights

Updated: 01 December 2021; Ref: scu.522486

Evans, Regina (on The Application of) v HM Attorney General and Another: CA 12 Mar 2014

The claimant journalist had requested disclosure under the 2000 Act of correspondence between the Prince of Wales and government departments. The Upper Tribunal had found that matters where the prince had acted as advocate were disclosable.

Lord Dyson MR, Richards, Pitchford LJJ
[2014] EWCA Civ 254, [2014] 2 WLR 1334, [2014] Env LR 26, [2014] 1 QB 855, [2014] WLR(D) 124, [2014] HRLR 12, [2014] 3 All ER 682, [2014] 3 CMLR 12
Bailii, WLRD
Charter of Fundamental Rights of the European Union 47, Freedom of Information Act 2000 53(2)
England and Wales
At UTAAEvans v Information Commissioner UTAA 18-Sep-2012
The claimant journalist had requested copies of correspondence between Prince Charles and assorted public bodies.
Held: ‘The Upper Tribunal allows the appeals by Mr Evans. A further decision identifying information to be disclosed to Mr Evans, . .
Appeal fromEvans, Regina (on The Application of) v HM Attorney General and Another Admn 9-Jul-2013
The claimant had requested disclosure of correspondence between Prince Charles and assorted government departments. It had been refused, the Attorney General issuing a certificate under section 53(2) after the Upper tribunal had allowed the . .

Lists of cited by and citing cases may be incomplete.

Information, Human Rights, European, Constitutional

Updated: 01 December 2021; Ref: scu.522385

MD (Same-Sex Oriented Males: Risk) India CG: UTIAC 12 Feb 2014

UTIAC a. Section 377 of the Indian Penal Code 1860 criminalises same-sex sexual activity. On 2 July 2009 the Delhi High Court declared section 377 IPC to be in violation of the Indian Constitution insofar as it criminalises consensual sexual acts between adults in private. However, in a judgment of 11 December 2013, the Supreme Court held that section 377 IPC does not suffer from the vice of unconstitutionality and found the declaration of the Delhi High Court to be legally unsustainable.
b. Prosecutions for consensual sexual acts between males under section 377 IPC are, and have always been, extremely rare.
c. Some persons who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police and the general populace; however, the prevalence of such incidents is not such, even when taken cumulatively, that there can be said in general to be a real risk of an openly same-sex oriented male suffering treatment which is persecutory or which would otherwise reach the threshold required for protection under the Refugee Convention, Article 15(b) of the Qualification Directive, or Article 3 ECHR.
d. Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow.
e. It would not, in general, be unreasonable or unduly harsh for an open same-sex oriented male (or a person who is perceived to be such), who is able to demonstrate a real risk in his home area because of his particular circumstances, to relocate internally to a major city within India.
f. India has a large, robust and accessible LGBTI activist and support network, mainly to be found in the large cities.

Eshun, O”Connor UTJJ
[2014] UKUT 65 (IAC)
England and Wales

Immigration, Human Rights

Updated: 01 December 2021; Ref: scu.522260

TD v Secretary of State for Work and Pensions and London Borough of Richmond-Upon-Thames (HB): UTAA 20 Dec 2013

Human rights law – article 10 (freedom of expression) – ‘ This appeal is concerned with the rule in the housing benefit that, in effect, allows a child in what I will term ‘an exactly equal shared care’ situation to count only as the child of one of his parents for housing benefit (and council tax benefit) purposes. ‘

[2013] UKUT 642 (AAC)
Housing Benefit Regulations 2006 20(2)(a)
England and Wales

Benefits, Human Rights

Updated: 01 December 2021; Ref: scu.522255

Shahzad (Art 8: Legitimate Aim) Pakistan: UTIAC 26 Feb 2014

(i) Failure on the part of the Secretary of State to identify in her decision any legitimate aim under Article 8(2) of the ECHR does not prevent a court or tribunal from seeking to do so on the basis of the materials before it.
(ii) ‘Maintenance of effective immigration control’ whilst not as such a legitimate aim under Article 8(2) of the ECHR can normally be assumed to be either an aspect of ‘prevention of disorder or crime’ or an aspect of ‘economic well-being of the country’ or both.
(iii) ‘[P]revention of disorder or crime’ is normally a legitimate aim both in expulsion cases where there has been criminal conduct on the part of the claimant and in expulsion cases where there have only been breaches of immigration law.
(iv) MF (Nigeria) [2013] EWCA Civ 1192 held that the new immigration rules regarding deportation of a foreign criminal are a complete code. This was because of the express requirement in them at paragraph 398 to have regard to exceptional circumstances and other factors.
(v) It follows from this that any other rule which has a similar provision will also constitute a complete code;
(vi) Where an area of the rules does not have such an express mechanism, the approach in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ([29]-[31] in particular) and Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC) should be followed: i.e. after applying the requirements of the rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.

Storey, Pitt UTJJ
[2014] UKUT 85 (IAC)
European Convention on Human Rights 8
England and Wales

Immigration, Human Rights

Updated: 01 December 2021; Ref: scu.522262

Ellis-Carr v Levy (Home Rights : Requirements To Establish Interest): LRA 19 Nov 2013

LRA Family Law Act 1996 – home rights notice – meaning and effect of ‘intention’ in statute – Applicant’s evidence – property never occupied as a matrimonial home – whether husband ever had entitlement to occupy by virtue of a beneficial estate or interest or application – application opposed by Applicant’s husband’s trustee in bankruptcy – effect of orders relating to property made by Registrar Derrett in the bankruptcy upheld by Norris J on appeal – Mental Capacity Act 2005 – CPR 21 – s283A Insolvency Act – s261 Enterprise Act 2002

Judge Hargreaves
[2013] LRAD 2012 – 1122
Family Law Act 1996

Registered Land, Family, Human Rights, Insolvency

Updated: 01 December 2021; Ref: scu.521988

Hasan and Chaush v Bulgaria: ECHR 2 Dec 2011

[2011] ECHR 2133
Bailii, Bailii
Principal judgmentHasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2021; Ref: scu.521996

DSD and Another v The Commissioner of Police for The Metropolis: QBD 28 Feb 2014

The claimants sought damages alleging negligent failure by the police to investigate and find a serial rapist.
Held: The claim succeeded. The claimants were entitled to damages from the defendant, the Commissioner of the Police of the Metropolis, as a result of failures by the police properly to investigate serious sexual assaults which had been perpetrated against them. The claims were founded on the propositions that (i) article 3 of the European Convention on Human Rights carries with it an obligation on the state to carry out an effective investigation when it receives a credible allegation that serious harm has been caused to an individual, and (ii) there were serious defects in the police investigation of the assaults on the claimants.
Green J explained, with reference to the MC case, he binary nature of the positive obligation arising under articles 3 and 8: ‘ . . There were two relevant aspects. First, whether the state of Bulgarian law on rape was so flawed as to amount to a breach of the state’s positive obligation under articles 3 and 8 (the systemic failings). Secondly, to consider whether the alleged shortcomings in the investigation were, also, so flawed as also to amount to a breach of the state’s obligations under the same articles (the operational failings). Under the heading ‘general approach’ the court explained that the duty to create a corpus of law and the duty to ‘apply them in practice’ through investigation and punishment were separate . . ‘

Green J
[2014] EWHC 436 (QB)
Human Rights Act 7 8, European Convention on Human Rights
England and Wales
ExplainedMC v Bulgaria ECHR 4-Dec-2003
The applicant complained that she had been raped by two men when she was 14 years old. The men were interviewed but it was concluded that they had not used threats or violence and there was no evidence of resistance. The district prosecutor issued a . .

Cited by:
Liability JudgmentDSD and Another v The Commissioner of Police for The Metropolis QBD 23-Jul-2014
The court had found the defendant liable for a breach of the claimants’ human rights in that its negligent investigations had led to further rapes and sexual assaults by an offender. The court now considered what damages might be payable. . .
See AlsoThe Commissioner of Police of The Metropolis v DSD and NBV and Others CA 30-Jun-2015
The claimants alleged that they had been victims of rapes after the defendant police force had negligently failed to properly investigate a series of similar crimes. They said that the failures had infringed their article 3 rights. The Commissioner . .
At First Instance (Liability)Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Police, Negligence, Human Rights

Updated: 01 December 2021; Ref: scu.521949

Pentikainen v Finland: ECHR 4 Feb 2014

11882/10 – Chamber Judgment, [2014] ECHR 106
European Convention on Human Rights
Human Rights
See AlsoPentikainen v Finland ECHR 4-Feb-2014
ECHR Article 10-1 – Freedom of expression
Arrest and conviction of journalist for not obeying police orders during a demonstration: no violation
Facts – The applicant was a photographer and journalist . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2021; Ref: scu.521906

Oruk v Turkey (Judgment): ECHR 4 Feb 2014

33647/04 – Chamber Judgment (French text), [2014] ECHR 114
European Convention on Human Rights
Human Rights
SummaryOruk v Turkey (Summary) ECHR 4-Feb-2014
Article 2
Positive obligations
Article 2-1
Death of six children as a result of failure to secure and supervise firing range containing unexploded ordnance: violation
Facts – In October 1993 a mortar rocket . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2021; Ref: scu.521902