Category: Human Rights

ABC (Ap), Re Judicial Review: SCS 22 Feb 2013

Outer House, Court of Session – The petitioner, from Afghanistan, sought asylum. The respondent decided to refuse the claim and remove the appellant to Afghanistan. He appealed to the First-tier tribunal on the grounds that he had a genuine fear of persecution if he were returned to Afghanistan, that he was a refugee and that his rights in terms of articles 2 and 3 of the Human Rights Convention would be breached if he were returned to Afghanistan.

Judges:

Lord Bannatyne

Citations:

[2013] ScotCS CSOH – 32

Links:

Bailii

Scotland, Immigration, Human Rights

Updated: 14 November 2022; Ref: scu.471188

Her Majesty’s Advocate v CAM: ScSf 21 Nov 2012

The appellant challenged his conviction saying that there had been too long a delay in his trial.

Judges:

Lady Paton, Lord Mackay of Drumadoon, Lady Cosgrove

Citations:

[2012] ScotHC HCJAC – 161, 2013 SLT 126, 2013 SCCR 67, 2013 GWD 1-21, 2013 SCL 128

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Spiers v Ruddy PC 12-Dec-2007
Limits to Powers in Devolution Cases
Mr Spiers had complained as to the competency of two temporary sheriffs called to hear case against him, saying that the temporary nature of their appointments did not allow them to constitute an independent tribunal. He now complained that the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 14 November 2022; Ref: scu.471091

X And Others v Austria: ECHR 19 Feb 2013

Grand Chamber – The applicants alleged that they had been discriminated against in comparison with different-sex couples, as second-parent adoption was legally impossible for a same-sex couple.
Held: An applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum

Judges:

Dean Spielmann, President

Citations:

19010/07 – HEJUD, [2013] ECHR 148, [2013] 1 FCR 387, (2013) 57 EHRR 14, [2013] Eq LR 396

Links:

Bailii

Statutes:

European Convention on Human Rights 3

Cited by:

Judgment – X and Others v Austria (Summary) ECHR 19-Feb-2013
(Grand Chamber) Article 14
Discrimination
Impossibility of second-parent adoption in same-sex couple:
violation
Facts – The first and third applicants are two women living in a stable homosexual relationship. The second . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Adoption

Updated: 14 November 2022; Ref: scu.471039

Horncastle And Others v The United Kingdom: ECHR 30 Jan 2013

The claimants alleged unfair in their trial after admission in evidence of statements of witnesses who had died before the trial.

Citations:

4184/10 – HECOM, [2013] ECHR 146

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

At SC – 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 . .

Cited by:

See Also – Horncastle And Others v The United Kingdom ECHR 16-Dec-2014
The applicants alleged that the admission of witness statements from the deceased alleged victims at their trial rendered the proceedings unfair. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 14 November 2022; Ref: scu.471024

Izuazu (Article 8 – New Rules) Nigeria: UTIAC 30 Jan 2013

UTIAC 1. In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8-new rules) Nigeria [2012] [2012] UKUT 00393 (IAC) to the same effect is endorsed.
2. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself.
3. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.
4. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles.
5. The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad.

Judges:

Blake J P, Bannatyne L, Storey UTJ

Citations:

[2013] UKUT 45 (IAC)

Links:

Bailii

Statutes:

European Convention on Humane Rights 8, Immigration Rules

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 14 November 2022; Ref: scu.470860

Fisher and Another v English Nature: Admn 4 Jul 2003

The claimants were trustees of land. The Respondent had notified the Secretary of State that they considered that part of the land satisfied the criteria to be certifed as being of special scientific interest. They now intended to confirm the notification. The claimants said that they could have considered alternative ways of protecting the land including acceptance of undertakings or alternative designations which were less onerous.
Held: The statute required that if the respondent remained genuinely convinced that the site satisfied the criteria, it had no discretion and had to confirm the notification. The notification was not therefore disproportionate. The claimant had disavowed any challenge of the underlying law, and therefore the claim failed.

Judges:

Lightman J

Citations:

[2003] EWHC 1599 (Admin), Times 15-Sep-2003, [2004] 1 WLR 503, [2004] Env LR 7, [2003] 4 All ER 366, [2004] JPL 217, [2003] NPC 84

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1981 28(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Nature Conservancy Council ex parte London Brick Property Ltd 1996
. .
Cited – Simplex GE (Holdings) Limited v Secretary of State CA 1988
A decision should in general be quashed if by way of error a relevant consideration is not taken into account or an irrelevant consideration is taken into account unless the decision-maker was bound on the facts to have reached the same conclusion . .
Cited – Oerlemans v The Netherlands ECHR 27-Nov-1991
Land was designated as ‘a protected natural site’, the effect of which was that agricultural activities could continue but that if the owner wished to alter or intensify the use of the land or to make certain changes in agricultural practices, . .
Cited – Fredin v Sweden ECHR 18-Feb-1991
A gravel pit licence was revoked without compensation pursuant to legislation brought in after the owner had acquired the pit but before it had begun to exploit it. The actual revocation took place after the pit had been exploited for a number of . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Tre Traktorer Aktiebolag v Sweden ECHR 7-Jul-1989
An alcohol licence for a restaurant was withdrawn with immediate effect because of financial irregularities, with the result that the restaurant business collapsed.
Held: ‘The government argued that a licence to sell alcoholic beverages could . .

Cited by:

Cited – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Appeal from – Regina on the Application of Fisher v English Nature CA 27-May-2004
The claimants appealed a refusal of their request for a judicial review of a decision of the respondent to designate their land as being of special scientific interest because of the need to protect the stone curlew.
Held: The defendant’s . .
Lists of cited by and citing cases may be incomplete.

Environment, Land, Human Rights

Updated: 13 November 2022; Ref: scu.185635

Steer v Stormsure Ltd (Sex Discrimination, Human Rights): EAT 21 Dec 2020

The Appellant has presented a claim in the Employment Tribunal in which she alleges that she was dismissed by the Respondent and that the dismissal amounted to sex discrimination and/or victimisation on the ground that she had done a protected act, contrary to the Equality Act 2010. She appeals against the Employment Tribunal’s refusal to permit her to apply for interim relief. The Appellant accepts that no such right appears on the face of the Equality Act 2010.
However, she says that the right to claim interim relief must be read into the Equality Act 2010, because this is required by European Law and/or by the European Convention on Human Rights (‘ECHR’), and/or that such a right should be granted by giving horizontal direct effect to fundamental principles of EU law.
European Law
The Appellant relies on three grounds relating to European Law. The first two are that the failure of domestic law to provide interim relief in discrimination/victimisation cases relating to dismissal contravenes the EU law principles of effectiveness and equivalence. She says this should be remedied by the application of a conforming interpretation to the Equality Act 2010, by reading in words to the Act, granting a right to claim interim relief in dismissal cases. The Appellant’s third contention is that the failure to provide interim relief in cases such as this is in breach of fundamental principles of EU law and, in particular, Articles 15 and 47 of the EU Charter, and that these principles should be given horizontal direct effect by reading appropriate wording into the Equality Act 2010 so as to provide a right to claim interim relief.
Effectiveness. The absence of a right to claim interim relief in discrimination/victimisation cases relating to dismissal does not infringe the EU law principle of effectiveness. Domestic law provides for full compensation, plus interest, and this complies with the requirements of effectiveness. The delays in Employment Tribunal proceedings do not necessitate the provision of interim relief.
Equivalence. The principle of equivalence requires that the procedures and remedies for claims derived from EU law should be no less favourable than those that apply to similar actions of a domestic nature. For these purposes, a claim, under the Employment Rights Act 1996, section 103A, for ‘automatic’ unfair dismissal where the principal reason for dismissal is the making of a protected disclosure, is a similar action of a domestic nature to a discrimination/victimisation claim resulting from dismissal. However, when the procedural rules and remedies are compared as a whole, the procedures and remedies for discrimination/victimisation claims resulting from dismissals are not less favourable than those that apply to claims under section 103A. Further and alternatively, the equivalence principle is complied with because the procedures and remedies that apply to discrimination/victimisation claims are no less favourable than those that apply to another similar action of a domestic nature, namely a claim for ‘ordinary’ unfair dismissal, under the Employment Rights Act 1996, section 98.
Fundamental Principles of EU law. There is no breach of fundamental principles of EU law, because domestic law provides an effective remedy for discrimination/victimisation cases. Further and alternatively, fundamental principles of EU law, as they apply to procedural rules and remedies, do not go further than the principles of effectiveness and equivalence, which have been complied with by domestic law. The question of horizontal direct effect does not, therefore, arise.
Conforming interpretation. Even if the EAT had found that there was a breach of the principles of effectiveness or equivalence, it was not possible for a conforming interpretation to be applied to the ERA 2010, by reading in a right to apply for interim relief in discrimination/victimisation cases arising from dismissals, because that would cross the line between interpretation and quasi-legislation, and because to do so would require the EAT to take decisions for which it is not equipped and would give rise to important practical repercussions which the EAT is not equipped to evaluate.
The ECHR
The Appellant contends that the failure to grant a right to claim interim relief in discrimination/victimisation cases arising from dismissals infringes the ECHR, Article 14, when read with Articles 6, 8 and Article 1 of Protocol 1.
Article 14 is engaged, because the matter in question comes within the ambit of Article 6, as it relates to judicial remedies for the enforcement of civil rights. The Appellant has an ‘other status’ for the purposes of Article 14, namely that of being an individual who wishes to bring a claim of dismissal/victimisation arising from dismissal.
It is appropriate to consider together the questions of whether those who wish to bring a claim under s103A are in an analogous situation, and whether the difference in treatment can be justified. The difference has not been justified. No legitimate aim has been advanced for the difference in treatment. The Respondent, being a private employer, is not in a position to say why the difference exists, and the Government did not respond to an invitation to intervene in this appeal. In these circumstances, it would be inappropriate for the EAT to speculate about whether, and, if so, why, the difference in treatment is a proportionate means of achieving a legitimate aim. The burden rests with the Respondent to justify the difference and, through no fault of its own, it has been unable to do so.
Accordingly, the Appellant has made out a breach of Article 14, ECHR.
However, the EAT has no power to make a declaration of incompatibility under the Human Rights Act 1998, section 3, and, for the same reasons as apply to the European Law part of the appeal, it would be wrong for the EAT to apply a conforming interpretation to the ERA 2010, in order to read in a right to apply for interim relief in discrimination/victimisation claims arising from dismissals. Therefore, the EAT cannot grant any relief for this breach.
For these reasons, the appeal is dismissed. Leave to appeal has been granted to appeal to the Court of Appeal, so that the Court of Appeal can consider whether to grant a declaration of incompatibility for the breach of Article 14.

Citations:

[2020] UKEAT 0216 – 20 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Human Rights, European

Updated: 13 November 2022; Ref: scu.661674

Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: Admn 4 Feb 2013

The claimant was facing trial in Bali which would eventually lead to a sentence of death. She complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (andpound;5,000) raised by her sister, but who (according to her) spoke little English and had no experience of capital defence litigation. Following her conviction, and by the time of the judicial review application, the consulate had put her in touch with Mr Agus, a local lawyer. He was the British Ambassador’s honorary legal adviser and was also a human rights specialist, who had acted in previous death penalty cases. He was willing to act for the appellant on a pro bono basis, subject to payment of his expenses, estimated at some andpound;2,600. She challenged the refusal of the respondent to provide that sum, both under common law and human rights law.
Held: The request was refused.
Gloster J said: ‘In my judgment it is manifestly clear on the facts of this case, that, at all relevant times, from the moment she was arrested, throughout the time she was in custody, throughout the trial process, and after her conviction when held in prison, the claimant was and remains under the authority and control of the Indonesian state and relevant criminal authorities. The mere fact that the consular officials provided her with advice and support, and that the [Foreign and Commonwealth Office] engaged in diplomatic representations, cannot be regarded as any kind of exertion of authority or control by agents of the United Kingdom so as to engage its responsibilities under the Convention.’

Judges:

Gloster, Nicola Davies JJ

Citations:

[2013] EWHC 168 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Zagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Cited – Al-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of 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 – X v United Kingdom ECHR 15-Dec-1977
(Commission) The British court had ordered a Jordanian father to return his daughter to England. The English mother contacted the British consulate in Amman asking it to ‘obtain the custody of her daughter from the Jordanian Court’. The Consulate . .

Cited by:

Appeal from – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for her appeal, and now . .
At Admin – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Human Rights

Updated: 13 November 2022; Ref: scu.470811

Adeojo and Another v Regina: CACD 6 Feb 2013

The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had acted properly in that when considering the exercise of his judgment under section 78 of the 1984 Act, he did adopt the course of testing the section 78 issue by an examination of the section 114(2) factors and he resolved that it was in the interests of justice that the evidence should be received. The court restated the factors in this case concluding that the evidence had been correctly admitted.

Judges:

Pitchford LJ, Cranston, Haddon-Cave JJ

Citations:

[2013] EWCA Crim 41

Links:

Bailii

Statutes:

Criminal Procedure Act 1865 3, Criminal Justice Act 2003 119(1), Police and Criminal Evidence Act 1984 78, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Thompson CACD 1976
A witness’s refusal to answer questions may be sufficient to demonstrate hostility and to trigger the right to cross-examine, including upon previous statements made by the witness. . .
Cited – Regina v Seton CACD 12-Mar-2010
The defendant had been charged with murder. He served a late defence statement blaming the murder on a man called P who was already serving a sentence of life imprisonment for murder. P refused to respond to police enquiries of him, but in telephone . .
Cited – Doorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
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 . .
Cited – Regina v Z CACD 23-Jan-2009
The defendant appealed against convictions for rape and indecent assault under the 1956 Act. The allegations dated from 1985 to 1989 when the complainant had been between 9 and 13. The prosecution brought in a doctor who said that in 1993 D . .
Cited – Ibrahim, Regina v CACD 27-Apr-2012
The appellant challenged the admissibility of witness statements made by the complainant where the complainant had died before the trial.
Held: The ‘counterbalancing measures’ in the 2003 Act and at the common law had not been properly . .
Cited – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 15-Dec-2011
(Grand Chamber) The claimants complained of the use against them of hearsay evidence in their trials.
Held: ‘the underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence . .
Cited – Luca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
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 – Regina v Riat and Others CACD 11-Jul-2012
Five defendants appealed against their convictions after the admission of hearsay evidence.
Held: The court re-iterated that the importance of the hearsay evidence to the case remained a vital consideration when deciding upon its . .
Cited – Regina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .
Cited – Regina v Peters, Palmer, Campbell CACD 10-Mar-2005
In each case a young person had been convicted on a guilty plea of murder. The court considered the affect on sentence of the defendant’s age and maturity.
Held: A difference of a few months might make an arbitrary difference in the minimum . .
Cited – Regina v Taylor CACD 4-Apr-2008
Appeal against sentence of life with a minimum term of 15 years for murder. . .
Cited – Martin v Regina CACD 6-Jul-2010
The defendant had been a passenger on a car driven by a learner driver. The car crashed killing the driver and seriously injuring another. He appealed against his conviction for aiding and abetting dangerous driving.
Held: The appeal . .
Cited – Regina v Fagan CACD 7-Sep-2012
. .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights

Updated: 13 November 2022; Ref: scu.470807

Al-Khawaja v The United Kingdom; Tahery v The United Kingdom: ECHR 15 Dec 2011

(Grand Chamber) The claimants complained of the use against them of hearsay evidence in their trials.
Held: ‘the underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. This principle requires not merely that the defendant should know the identity of his accusers so that he is in a position to challenge their probity of credibility but that he should be able to test the truthfulness and reliability of their evidence, by having them orally examined in his presence, either at the time the witness was made the statement or at some later stage of the proceedings.’
The court did not accept that the sole or decisive rule assumed that all hearsay evidence which is crucial to a case is unreliable or incapable of a proper assessment unless tested by cross-examination, but: ‘rather, it is predicated on the principle that the greater the importance of the evidence, the greater the potential unfairness to the defendant in allowing the witness to remain anonymous or to be absent from the trial and the greater the need for safeguards to ensure that the evidence is demonstrably reliable or that the reliability can properly be tested and assessed.’ and
‘where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6(1). At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R v Davis, and one which requires sufficient counter-balancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counter-balancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.’

Judges:

Francoise Tulkens, P

Citations:

[2011] ECHR 2127, 26766/05, 2228/06

Links:

Bailii

Statutes:

European Convention on Human Rights, Criminal Justice Act 2003 114 116, Coroners and Justice Act 2009

Jurisdiction:

Human Rights

Citing:

See Also – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 8-Jan-2008
Each claimant complained of the admission at their trials of hearsay evidence. . .
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 . .
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, . .
See Also – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 20-Jan-2009
Each complainant said that in allowing hearsay evidence to be used against them at their trials, their article 6 human rights had been infringed. In the first case the complainant had died before trial but her statement was admitted.
Held: In . .

Cited by:

Cited – Adeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .
Cited – Ibrahim, Regina v CACD 27-Apr-2012
The appellant challenged the admissibility of witness statements made by the complainant where the complainant had died before the trial.
Held: The ‘counterbalancing measures’ in the 2003 Act and at the common law had not been properly . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Evidence

Updated: 13 November 2022; Ref: scu.470825

Horvath And Kiss v Hungary: ECHR 29 Jan 2013

ECHR The case concerned the complaints of two young men of Roma origin that their education in schools for the mentally disabled had been the result of misplacement and had amounted to discrimination. Violation of Article 2 of Protocol No. 1 (right to education) read in conjunction with Article 14 (prohibition of discrimination)
The Court underlined that there was a long history of misplacement of Roma children in special schools in Hungary. It found that the applicants’ schooling arrangement indicated that the authorities had failed to take into account their special needs as members of a disadvantaged group. As a result, the applicants had been isolated and had received an education which made their integration into majority society difficult.

Citations:

11146/11 – HEJUD, [2013] ECHR 92

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

See Also – Horvath And Kiss v Hungary ECHR 3-Jul-2012
horvath_kiss_hungaryECHR2012
Statement of facts – The application concerns two young Romani men, who were misdiagnosed as having mental disabilities. As a result of these misdiagnoses, the applicants could not access mainstream education. Instead, they were educated in a . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Education, Discrimination

Updated: 13 November 2022; Ref: scu.470652

Sky Osterreich Gmbh v Osterreichischer Rundfunk: ECJ 22 Jan 2013

ECJ (Grand Chamber) Directive 2010/13/EU – Provision of audiovisual media services – Article 15(6) -Validity – Events of high interest to the public that are subject to exclusive broadcasting rights – Right of access of broadcasters to such events for the purpose of making short news reports – Limitation of possible compensation for the holder of the exclusive right to additional costs incurred in providing such access – Charter of Fundamental Rights of the European Union – Articles 16 and 17 – Proportionality

Judges:

Y Bot AG

Citations:

C-283/11, [2013] EUECJ C-283/11

Links:

Bailii

Statutes:

Directive 2010/13/EU 15(6), Charter of Fundamental Rights of the European Union

European, Media, Human Rights

Updated: 13 November 2022; Ref: scu.470567

Siliadin v France: ECHR 2 Dec 2011

Execution of the judgment of the European Court of Human Rights

Citations:

[2011] ECHR 2110, 73316/01

Links:

Bailii

Citing:

See Also – Siliadin v France ECHR 26-Jul-2005
(French Text) A 15-year-old girl, had been brought from Togo to France and made to work for a family without pay for 15 hours a day. She had been held in servitude and required to perform forced labour
Held: France had violated article 4 by . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 13 November 2022; Ref: scu.470569

Bayatyan v Armenia: ECHR 10 May 2010

Referral to Grand Chamber

Judges:

Josep Casadevall, P

Citations:

23459/03, [2010] ECHR 1998

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

See Also – Bayatyan v Armenia ECHR 27-Oct-2009
The claimant was a Jehovah’s Witness and accordingly a pacifist. He complained of being obliged to undertake military service. No alternative service was offered. He was convicted, and his punishment increased on the prosecutor’s appeal.
Held: . .

Cited by:

See Also – Bayatyan v Armenia ECHR 7-Jul-2011
(Grand Chamber) The applicant was a practising Jehovah’s Witness and a conscientious objector. He said that his conviction for refusing to serve in the army had violated his right to freedom of thought, conscience and religion. That complaint had . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 13 November 2022; Ref: scu.470469

Kevin Fox v United Kingdom: ECHR 20 Mar 2012

The claimant said that he had been severely assaulted by police officers when being arrested. He had been ‘tasered’ four times at least. The taser had been applied directly to the skin, rater than from a distance, and psychiatrist compared it to ‘extreme electro-convulsive therapy’. He was refused judicial review after the police investigation of his complaint found against him.

Judges:

Lech Garlicki, P

Citations:

[2012] ECHR 606, 61319/09

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Questions – Kevin Fox v United Kingdom ECHR 15-Jan-2010
The claimant said that he had been severely assaulted by police officers on his arrest, and that the respondent had failed to provide a proper investigation and or remedy.
Held: The court replied with questions for the parties. . .
Cited – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
Cited – Jakobski v Poland ECHR 7-Dec-2010
The claimant, serving a long jail sentence, said that as a Buddhist, he needed a meat free diet. This was granted at first for medical reasons, but then withdrawn. All attempts failed, and he was mistreated by prison guards. The prison service . .

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, Police, Torts – Other

Updated: 13 November 2022; Ref: scu.470467

Selmouni v France: ECHR 25 Nov 1996

Citations:

[1996] ECHR 100, 25803/94

Links:

Bailii

Statutes:

European Convention on Human Rights 3

Cited by:

Cited – Selmouni v France ECHR 28-Jul-1999
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 3; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – . .
Cited – Selmouni v France ECHR 3-Dec-2009
Execution of judgment . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 13 November 2022; Ref: scu.470466

Selmouni v France: ECHR 3 Dec 2009

Execution of judgment

Citations:

[2009] ECHR 2250, 25803/94, [2009] ECHR 2250

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights 3

Citing:

Cited – Selmouni v France ECHR 25-Nov-1996
. .
Judgment – Selmouni v France ECHR 28-Jul-1999
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 3; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 13 November 2022; Ref: scu.470465

Giuseppina And Orestina Procaccini v Italy: ECHR 29 Mar 2006

The complainants said that the damages awarded for the delay in hearing their civil case were derisory.

Judges:

L Wildhaber, P

Citations:

[2006] ECHR 274

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Citing:

Cited – Giuseppina And Orestina Procaccini v Italy ECHR 10-Nov-2004
ECHR (French Text) Judgment (Merits and Just Satisfaction) – Preliminary objection rejected (non-exhaustion of domestic remedies); Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Damages

Updated: 13 November 2022; Ref: scu.470479

Bayatyan v Armenia: ECHR 7 Jul 2011

(Grand Chamber) The applicant was a practising Jehovah’s Witness and a conscientious objector. He said that his conviction for refusing to serve in the army had violated his right to freedom of thought, conscience and religion. That complaint had been rejected.
Held: (Gyulumyan dissenting) There had been a violation of the applicant’s article 9 rights. The respondent had already promised to implement the necessary reforms, and had given an interim undertaking which implied that it would not conduct such prosecutions.
‘The Court reiterates that, as enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.’

Judges:

Jean-Paul Costa, P

Citations:

23459/03, [2011] ECHR 1095, (2012) 54 EHRR 15

Links:

Bailii

Statutes:

European Convention on Human Rights 9

Citing:

See Also – Bayatyan v Armenia ECHR 27-Oct-2009
The claimant was a Jehovah’s Witness and accordingly a pacifist. He complained of being obliged to undertake military service. No alternative service was offered. He was convicted, and his punishment increased on the prosecutor’s appeal.
Held: . .
See Also – Bayatyan v Armenia ECHR 10-May-2010
Referral to Grand Chamber . .

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 . .
Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 13 November 2022; Ref: scu.470468

Rocknroll v News Group Newspapers Ltd: ChD 17 Jan 2013

The claimant sought an order to restrain the defendant from publishing embarrassing photographs taken at a private party. He had taken an assignment of the copyright from the photographer.
Held: The court considered whether the extent to which the images or similar images of the claimants have appeared already in the public domain was relevant.
A public figure is not, by virtue of that quality, necessarily deprived of his or her legitimate expectations of privacy

Judges:

Briggs J

Citations:

[2013] EWHC 24 (Ch), [2013] All ER 98

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Cited – Mezvinsky and Another v Associated Newspapers Ltd ChD 25-May-2018
Choice of Division and Business Lists
Claim that the publication of pictures of the young children of the celebrity claimants had been published by the defendant on-line without consent and without pixelation, in breach of their human rights, of data protection, and right to privacy. . .
Cited – Richard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Media, Human Rights

Updated: 13 November 2022; Ref: scu.470132

Regina (Q) v Secretary of State for the Home Department; Regina (D) v Same; Regina (J) v Same etc: Admn 19 Feb 2003

The several applicants challenged the implementation of the section, which required an asylum seeker to make his application at the very first opportunity on arriving in the UK, and denied all benefit and support to those who did not do so. A form was completed by the officer, and followed strictly. They complained that the scheme had been introduced in a way which was unfair, and that it was unfair in not allowing any appeal.
Held: The system did not allow the collection of full information about the circumstances of the arrival, and did not give to the applicant a chance to respond to any doubts raised by the answers. The system provided no proper appeal, and the readiness of the respondent to listen to any further information was not a sufficient response.

Judges:

Collins J

Citations:

Times 20-Feb-2003, [2003] EWHC 195 (Admin), Gazette 19-Apr-2003, [2003] 3 WLR 365

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 55

Jurisdiction:

England and Wales

Citing:

Appealed to – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .

Cited by:

Appeal from – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 12 November 2022; Ref: scu.179541

P, Regina (on the Application of) v Secretary of State for the Home Department: Admn 11 Dec 2003

The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
Held: There is no necessary breach of the requirement of a speedy hearing caused by the provision of successive hearings by a mental health review tribunal and (if that results in discharge from MHA detention) a Discretionary Lifer Panel. Individual delays can be judged on their own facts. The fact that the claimant had no right to have his case considered by the Parole Board until after his discharge from detention under the MHA did not infringe his rights under Article 5.4.

Judges:

Stanley Burnton J

Citations:

[2003] EWHC 2953 (Admin), Times 29-Dec-2003

Links:

Bailii

Statutes:

European Convention on Human Rights , Mental Health Act 1983 49

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey CA 29-Jul-1994
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those . .
Cited – Regina (D) v Secretary of State for the Home Department QBD 19-Dec-2002
The applicant had been a discretionary life prisoner. His minimum period of detention had passed, but he continued to be detained under a transfer order for his treatment as mental health patient.
Held: The absence of any means for him to . .
Cited – In re De Wilde, Ooms and Versyp v Belgium (No 1) ECHR 18-Nov-1970
The applicants had been detained under Belgian vagrancy laws. An earlier decision had found that their rights had been infringed because of the lack of effective means for them to challenge their detention. The Belgian government said that the . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Thynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
Cited – Megyeri v Germany ECHR 12-May-1992
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings . .
Cited – Regina v East London and the City Mental Health NHS Trust and Another ex parte Von Brandenburg (Aka Hanley) HL 13-Nov-2003
The patient was ordered to be discharged and released from hospital. The tribunal making the order had not accepted the medical recommendations. His release was deferred pending the finding of accommodation, but in the meantime, a social worker . .
Cited – Regina (C) v London South and West Region Mental Health Review Tribunal CA 2001
A standardised period before a hearing to review a patient’s detention that does not vary with the facts of each case may involve a breach of the Convention right. . .
Distinguished – Regina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Regina v Offen; Regina v McGuillard; Regina v McKeown; Regina v Okwuegbunam; Regina v Saunders (Stephen) CACD 15-Nov-2000
For the purposes of the Act, where a defendant faced a compulsory life sentence following two convictions for certain offences, a finding by the judge that the defendant did not pose a serious risk to society, could be an exceptional circumstance . .
Cited – KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal Admn 23-Apr-2002
Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
Held: Article 5.5 did not make an award of . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Lists of cited by and citing cases may be incomplete.

Prisons, Health, Human Rights

Updated: 12 November 2022; Ref: scu.188745

Ramirez Sanchez v France: ECHR 2 Dec 2010

(Execution of Judgment) Record of satisfaction of judgment against it by the respondent.

Judges:

L Wildhaber P

Citations:

[2010] ECHR 2241

Links:

Bailii

Statutes:

European Convention on Human Rights 3

Citing:

See Also – Ramirez Sanchez v France ECHR 27-Jan-2005
The applicant complained that he had been held in solitary confinement for a period of nearly 8 years whilst in prison, and had not been given a remedy.
Held: There had been no breach of article 3 by the confinement, but article 13 had been . .
Grand Chamber – Ramirez Sanchez v France ECHR 4-Jul-2006
ramirez_sanchezECHR2006
(Grand Chamber) The applicant, better known as ‘Carlos the Jackal’, complained that he had been held in solitary confinement for 8 years by the respondent whilst in prison contrary to article 3, and that he had not been given any means of challening . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 12 November 2022; Ref: scu.468880

Enea v Italy: ECHR 17 Sep 2009

(Grand Chamber) The applicant, a prisoner serving a long sentence for Mafia-type criminal offences, was subjected to a special regime by ministerial decrees. The restrictions included not only very limited family visits but also a long period (seemingly about three years) in a special form of high-security unit which involved separation from prisoners in other units but not total segregation.
Held: In deciding that there was a dispute over a ‘right’, the Grand Chamber referred to the European Prison Rules, observing that although they are not legally binding on the Member States, ‘the great majority . . recognise that prisoners enjoy most of the rights to which [they refer] and provide avenues of appeal against measures restricting those rights’.
As to the question whether the disputed right was a ‘civil right’ for the purposes of Article 6, the Grand Chamber stated: ‘some of the restrictions alleged by the applicant – such as those restricting his contact with his family and those affecting his pecuniary rights – clearly fell within the sphere of personal rights and were therefore civil in nature (see Ganci).’ It added ‘The Court is well aware that it is essential for States to retain a wide discretion with regard to the means of ensuring security and order in the difficult context of prison . . Any restriction affecting these civil rights must be open to challenge in judicial proceedings, on account of the nature of the restrictions (for example, a prohibition on receiving more than a certain number of visits from family members each month or the ongoing monitoring of correspondence and telephone calls) and of their possible repercussions (for instance, difficulty in maintaining family ties or relationships with non-family members, exclusion from outdoor exercise). By this means it is possible to achieve the fair balance which must be struck between the constraints facing the State in the prison context on the one hand and the protection of prisoners’ rights on the other.’
As to the three years in the high security unit: ‘The Court observes that, while it is true that a prisoner cannot challenge per se the merits of a decision to place him or her in an EIV unit, an appeal lies to the courts responsible for the execution of sentence against any restriction of a ‘civil’ right (affecting, for instance, a prisoner’s family visits or correspondence). However, given that in the instant case the applicant’s placement in the unit did not entail any restrictions of that kind, even the possible lack of such a remedy could not be said to amount to denial of access to a court.’

Judges:

Jean-Paul Costa, P

Citations:

[2009] ECHR 1293, 74912/01

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Applied – Ganci v Italie ECHR 30-Oct-2003
The applicant was serving two life sentences for Mafia related activities. He challenged nine decrees issued by the Minister of Justice under which he was held under a special prison regime for a period of four years. His case related to delays by . .
Cited – Gulmez v Turkey ECHR 20-May-2008
The applicant complained inter alia of successive decisions which had deprived him of visitation rights for about a year as punishment for disciplinary offences whilst in prison.
Held: ‘the restriction on the applicant’s visiting rights . .
See Also – Enea v Italy ECHR 23-Sep-2004
. .

Cited by:

Cited – Stegarescu and Bahrin v Portugal ECHR 6-Apr-2010
The two applicants complained that they had been held in solitary confinement for seven months after receipt of intelligence about an escape plan.
Held: There had been a violation of the prisoners’ article 6 rights. They had been given no . .
Cited – King v Secretary of State for Justice Admn 13-Oct-2010
The claimant sought judicial review of decisions that the claimant had committed a disciplinary offence whilst in custody at a Young Offenders Institute.
Held: The claim failed.
Pitchford LJ considered the ECHR jurisprudence, and said: . .
Cited – Boulois v Luxembourg ECHR 14-Dec-2010
The applicant was serving a long sentence for serious offences. He had submitted several requests for ‘prison leave’ in order to carry out tasks in preparation for his eventual release. These had been refused by the Attorney General. The domestic . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 12 November 2022; Ref: scu.468875

Tracey, Regina (on The Application of) v Cambridge University Hospital NHS Foundation and Others: Admn 19 Dec 2012

The claimant sought judicial review of the decisions by the respondent as to the care of his late wife, particularly as to the use of ‘ Do Not Attempt Cardio-Pulmonary Resuscitation’ orders.

Judges:

Nicola Davies DBE J

Citations:

[2012] EWHC 3670 (Admin)

Links:

Bailii

Statutes:

Mental Capacity Act 2005 37, Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 4

Jurisdiction:

England and Wales

Health, Human Rights

Updated: 12 November 2022; Ref: scu.467202

Egmez v Cyprus (Dec): ECHR 18 Sep 2012

ECHR Article 35-3
Ratione materiae
Complaint relating to implementation of previous European Court judgment and raising no new facts: inadmissible
Facts – In a judgment of 21 December 2000,* the Court found that the applicant in the present case had been ill-treated contrary to Article 3, and that there had been a breach of Article 13 of the Convention as the authorities had not conducted an investigation capable of leading to the punishment of the officers involved in the applicant’s ill-treatment. Two years after the judgment became final, the Government began an investigation into the applicant’s case. This investigation subsequently lapsed into inactivity, allegedly due to the inability to obtain a statement from the applicant. In a fresh application to the Court, the applicant claimed that this investigation had not been adequate.
Law
Article 35-3 (a): The Court had consistently emphasised that it does not have jurisdiction to verify whether a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments. However there may be certain circumstances where measures taken by a respondent State to remedy a violation found by the Court raise a new issue undecided by the initial judgment. The determination of the existence of a ‘new issue’ very much depends on the specific circumstances of a given case.
In its judgment of 21 December 2000 concerning the applicant’s first application the Court found that the domestic authorities would have discharged their obligations under the Convention by instituting criminal proceedings. The subsequent appointment of the investigator and the ensuing investigation constituted the individual measures adopted by the Government in order to execute that judgment. Consequently, those steps could not be considered as new factual developments as they formed part of the measures adopted in pursuance of the Court’s initial judgment and thus fell within the supervision exercised by the Committee of Ministers. The Court did not, therefore, have jurisdiction to review those measures. The Court then noted from the Government’s observations that the investigation had lapsed into inaction once difficulties were encountered in obtaining a statement from the applicant. In light of this inactivity it was clear that there had been no developments or any new events that could revive a procedural obligation under Article 3 and thus trigger a possible breach of that provision. Therefore the Court had no jurisdiction to examine the applicant’s complaint.
Conclusion: inadmissible (incompatible rationae materiae).
(See also Verein Gegen Tierfabriken Schweiz (VGT) v. Switzerland [GC], no. 32772/02, 30 June 2009, Information Note no. 120; Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08, 11 May 2010, Information Note no. 130; and Ivantoc and Others v. Moldova and Russia, no. 23687/05, 15 November 2011, Information Note no. 146.)

Citations:

12214/07 – CLIN, [2012] ECHR 2037

Links:

Bailii

Statutes:

European Convention on Human Rights 35-3

Jurisdiction:

Human Rights

Human Rights

Updated: 12 November 2022; Ref: scu.466998

Harman v United Kingdom: ECHR 11 May 1984

ECHR Article 7 of the Convention: Allegedly unforeseeable conviction for the contempt of court (Complaint declared admissible).
Articles 10 and 14 of the Convention : Official documents produced in the course of discovery proceedings: solicitor found guilty of contempt of court notwithstanding that the documents had been read out in open court. Question of violation of right to impart information (Complaint declared admissible).

Citations:

[1984] ECHR 24, (1985) 7 EHRR CD146, 10038/82

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Contempt of Court

Updated: 12 November 2022; Ref: scu.467050

Samsonnikov v Estonia (Summary): ECHR 3 Jul 2012

ECHR Article 8
Expulsion
Expulsion of long-term resident following series of criminal convictions: no violation
Facts – The applicant was born in Estonia in 1978 and lived there on the basis of a temporary residence permit practically all his life until his expulsion in 2011. He did not appear to have ever formally requested Estonian citizenship, but instead obtained Russian citizenship in 1998 after attending a Russian-speaking school in Tallinn. His father and brother both lived in Estonia with their respective families. From 1997 onwards the applicant received a series of convictions for criminal offences, some of which involved violence and/or drugs and was also found guilty of various misdemeanours. In 2008 he was convicted of aggravated drug smuggling in Sweden. Following his release from prison there in 2009 he was deported to Estonia, whose authorities had meanwhile refused to prolong his temporary residence permit owing to the nature and severity of the offences he had committed. He was expelled to Russia in 2011 with a three-year prohibition on re-entry.
Law – Article 8: There was no doubt that the applicant’s expulsion from Estonia had interfered with his right to respect for his private life. As for his family life, however, there was nothing to suggest that his relationship with his father or brother had extended beyond the usual ties existing between adult family members. Although the applicant had a partner in Estonia, the couple had only started cohabiting after the applicant’s expulsion from Sweden, so they should have been aware of his precarious residence status in Estonia. The applicant had never requested Estonian citizenship but had obtained Russian citizenship instead, thereby apparently identifying himself with that country. His social circle, including his relatives and partner, consisted mainly of persons of Russian origin and he also had family living in Russia. All these factors indicated that the applicant would not face insurmountable difficulties in settling in Russia. The Estonian authorities had rejected the applicant’s request for an extension of his residence permit, not just on the basis of his criminal conviction in Sweden, but following an assessment of all the circumstances including his criminal record in Estonia, which had seen him sentenced to a total of eight years’ imprisonment in the preceding twelve years. Given his age, the length of time he had been offending and the seriousness of offences his behaviour could not be regarded as mere ‘juvenile delinquency’. The Court noted further that Recommendation Rec2000)15 of the Committee of Ministers of the Council of Europe* stated that each State had the option to provide in its internal law that a long-term immigrant may be expelled if he or she constituted a serious threat to national security or public safety. Lastly, the three-year ban on his re-entering Estonia did not amount to a disproportionate interference with the applicant’s Convention rights.
Conclusion: no violation (five votes to two).

Citations:

52178/10 – CLIN, [2012] ECHR 1999

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Summary – Samsonnikov v Estonia ECHR 3-Jul-2012
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 November 2022; Ref: scu.466989

SR v The Netherlands (Dec): ECHR 18 Sep 2012

ECHR Article 5
Article 5-4
Review of lawfulness of detention
Supreme Court decision declaring appeal inadmissible but nevertheless addressing the merits: inadmissible
Article 5-1-e
Persons of unsound mind
Court order for admission to psychiatric hospital for observation owing to concerns about applicant’s mental state: inadmissible
Facts – In July 2006 a public prosecutor submitted a request, supported by a psychiatric report, for provisional authorisation for the applicant’s committal to a psychiatric hospital. The Regional Court rejected that request and made an observation order instead, pursuant to which the applicant was admitted to a psychiatric hospital. The applicant appealed to the Supreme Court on points of law, inter alia, on the grounds that she had not been heard by the Regional Court before the observation order was issued and that Article 5 – 1 (e) of the Convention did not permit the detention of persons purely for observation for the purposes of determining whether they were of unsound mind. She left hospital three weeks after her admission. The Supreme Court subsequently declared her appeal inadmissible for lack of interest as the observation order had already lapsed. However, in view of the relevance of the legal questions raised, it nonetheless addressed the merits of a number of her grounds of appeal.
Law – Article 5 – 1: A medical report drawn up by a qualified practitioner not involved in the applicant’s existing treatment had been available to the Regional Court and the Court was not disposed to doubt that it reflected genuine concerns that the applicant’s mental state was such as to justify at least her detention for a limited period so as to make sure. The fact that the applicant was released after three weeks’ observation and that her mental condition was never determined to be dangerous could not be decisive. The Court had previously interpreted Article 5-1 (e) so as to allow the detention of persons who had abused alcohol and whose resulting behaviour gave rise to genuine concern for public order and for their own safety. The same applied to persons in respect of whom there was sufficient indication that they may be of unsound mind.
Conclusion: inadmissible (manifestly ill-founded).
Article 5-4: In the case of S.T.S. v. the Netherlands* the Court had noted that a former detainee might well have a legal interest in the determination of the lawfulness of his detention even after his release, for example, in relation to his ‘enforceable right to compensation’, so that by declaring his appeal on points of law inadmissible as having become devoid of interest, the Supreme Court had deprived the proceedings for deciding the lawfulness of his detention of effect, in breach of Article 5-4.
In the instant case, however, while it was true that the Supreme Court had declared the applicant’s claim inadmissible (as the order appealed against could no longer be overturned), it was not thereby prevented from ruling on the lawfulness of the applicant’s detention. Although it did not accept the applicant’s complaints as regards the legality of her detention, it did actually express itself in her favour on the complaint that she had not had a proper opportunity to argue her case against the delivery of an observation order as distinct from a provisional order. Had the applicant brought proceedings to obtain compensation for damage, the court seized of the case would have found the Supreme Court’s opinion impossible to ignore. Accordingly, the Supreme Court’s decision did not have the effect of depriving the applicant of a decision on the merits of her appeal on points of law. Nor was it established that the applicant had been prevented from enjoying the effects of that decision in so far as it was favourable to her position. S.T.S. distinguished.
Conclusion: inadmissible (manifestly ill-founded).

Citations:

13837/07 – CLIN, [2012] ECHR 2020

Links:

Bailii

Statutes:

European Convention on Human Rights 5

Jurisdiction:

Human Rights

Human Rights, Health, Torts – Other

Updated: 12 November 2022; Ref: scu.467005

X v Finland: ECHR 3 Jul 2012

ECHR Article 8-1
Respect for private life
Forced administration of therapeutic drugs in mental institution: violation
Article 5
Article 5-1-e
Persons of unsound mind
Forced confinement in a mental institution: violation
Facts – The applicant, a paediatrician, was arrested in October 2004 in connection with criminal proceedings that had been brought against her after she allegedly helped a mother remove her daughter from public care. The court ordered the applicant’s transfer to a mental institution, where a doctor concluded after examining her over a two-month period that she suffered from a delusional disorder and met the criteria for involuntary confinement. In February 2005 the Board for Forensic Psychiatry of the National Authority for Medico-Legal Affairs ordered the applicant’s involuntary treatment on the basis of the doctor’s report. The hospital then started injecting the applicant with medication which she had refused to take orally. She was not released from hospital until January 2006 and her treatment officially ended in June of that year. The applicant unsuccessfully challenged her confinement and involuntary treatment before the domestic authorities.
Law – Article 5 – 1: The initial decision to place the applicant in involuntary hospital care had been taken by an independent administrative body with legal and medical expertise and had been based on a thorough psychiatric examination carried out in a mental institution by a doctor who had not participated in the decision to place her. The decision-making process had followed the domestic legal procedures at all times and the Mental Health Act was sufficiently clear and foreseeable in that respect. However, domestic law also had to protect individuals from arbitrary deprivation of their liberty and security. While there had been no problem with the applicant’s initial confinement, as it had been ordered by an independent specialised authority following a psychiatric examination and had been subject to judicial review, the safeguards against arbitrariness had been inadequate as regards the continuation of the applicant’s involuntary confinement after that period. In particular, there had been no independent psychiatric opinion, as the two doctors who had decided on the prolongation of the confinement were from the hospital where she was detained. In addition, under Finnish law the applicant herself could not bring proceedings for review of the need for her continued confinement, as such periodic review could only take place every six months at the initiative of the relevant domestic authorities. The procedure prescribed by national law had thus not provided adequate safeguards against arbitrariness.
Conclusion: violation (unanimously).
Article 8: Medical intervention in defiance of the individual’s will normally constituted interference with his or her private life, and in particular with his or her personal integrity. Such interference was justified if it was in accordance with the law, pursued a legitimate aim and was proportionate. The accessibility and foreseeability of the law at issue in the applicant’s case did not give rise to any problems. However, Article 8 also required that the law in question be compatible with the rule of law, which in the specific area of forced medication meant that the domestic law had to provide some kind of protection to the individual against arbitrary interference. Under the Mental Health Act, doctors attending a patient could decide on the treatment to be given, regardless of the patient’s wishes, and their decisions were not subject to appeal. However, given the seriousness of the forced administration of medication, the Court considered that the law on which such treatment was based had to guarantee proper safeguards against arbitrariness. In the applicant’s case such safeguards had been missing: the decision to confine the applicant involuntarily had included automatic authorisation for the forced administration of medication if she refused treatment. The decision-making had been solely in the hands of the treating doctors and was not subject to any kind of judicial scrutiny. The applicant had not had any remedy by which she could ask the courts to rule on the lawfulness or the proportionality of the measure or discontinue it. Accordingly, the interference in question had not been ‘in accordance with the law’.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

Citations:

34806/04 – CLIN, [2012] ECHR 1998

Links:

Bailii

Statutes:

European Convention on Human Rights 8-1

Jurisdiction:

Human Rights

Human Rights, Health Professions

Updated: 12 November 2022; Ref: scu.466991

Trade Union of the Police in the Slovak Republic and Others v Slovakia: ECHR 25 Sep 2012

Article 11-1
Freedom of association
Strong ministerial criticism of calls by police union for Government’s resignation: no violation
Facts – The first applicant was a trade union representing police officers. The second, third and fourth applicants were respectively its former president and vice-president and one of its members. In October 2005 the union organised a public meeting in one of the main squares in Bratislava to protest against proposed legislative changes to the police’s social-security regime. During the meeting the participants spontaneously called for the Government to step down and a banner on display read ‘If the State doesn’t pay a policeman, the mafia will do so with pleasure.’ Subsequently the Minister of the Interior criticised the meeting and its organisers and removed the second applicant from the post of director in the police force. The third applicant was also removed from his position at the Minister’s behest. The Minister stated in the press and on television that he would dismiss anyone who acted contrary to the ethical code of the police again, that the union representatives had lost credibility and that he was not obliged to negotiate with them. The applicants lodged a complaint with the Constitutional Court alleging that the Minister’s statements would deter members of the police force from availing themselves of their freedoms of expression, assembly and association for fear of sanctions. In 2007 the Constitutional Court dismissed their complaint after finding that the Minister’s statements were part of the dialogue between both parties and did not amount to a breach of the freedoms at issue.
Law – Article 11 read in the light of Article 10: The Court accepted that the applicants had been intimidated by the Minister’s statements, which could thus have had a chilling effect and discouraged them from pursuing activities within the trade union, including organising or taking part in similar meetings. There had consequently been interference with the exercise of their right to freedom of association. What the Court had to establish was whether such interference had been ‘necessary in a democratic society’. Under domestic law, when expressing their views in public, police officers were required to act in an impartial and reserved manner in order to maintain public trust. Given their primordial role in ensuring internal order and security and in fighting crime, duties and responsibilities inherent in the position and role of police officers justified particular arrangements as regards the exercise of their trade-union rights. The Court observed that the Minister’s impugned statements had been given in reaction to, and were exclusively directed against, the calls for the Government’s resignation and a slogan implying that there was a risk that the police might get involved with the mafia. The Minister had considered their conduct to be in breach of the obligation of police officers to express their views in an impartial and reserved manner and his statements had represented an immediate reaction to ideas and views expressed at the meeting. Given his responsibility for the appropriate functioning of the entire Ministry, including the police, the Minister had been entitled to express his opinion on the situation. Moreover, it did not appear that the applicants’ right to be heard or to continue pursuing trade-union activities had been impaired in any way. In sum, the Court accepted that the interference at issue corresponded to a ‘pressing social need’ and that the reasons for the interference were ‘relevant and sufficient’.
Conclusion: no violation (five votes to two).

Citations:

11828/08 – HEJUD, [2012] ECHR 1747, 11828/08 – CLIN, [2012] ECHR 2036

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights, European Convention on Human Rights

Jurisdiction:

Human Rights

Employment, Police, Human Rights

Updated: 12 November 2022; Ref: scu.467006

V, Regina (on The Application of) v Commissioner of Police for The City of London: Admn 14 Nov 2012

The claimant complains about the police’s continued retention of information relating to him on the Police National Computer, retention which is said to be in breach of his rights under Article 8 of the European Convention on Human Rights.

Judges:

Richards LJ, Ouseley J

Citations:

[2012] EWHC 3430 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Police, Human Rights

Updated: 12 November 2022; Ref: scu.466930

Falter Zeitschriften Gmbh v Austria (No 2) (2044): ECHR 18 Sep 2012

ECHR Article 10-1
Freedom of expression
Publication of untrue statements concerning alleged judicial bias: no violation
Facts – In May 2005 a certain HP was acquitted in criminal proceedings of the attempted rape of an asylum-seeker. The applicant company published an article which was highly critical of those proceedings, in particular on account of the manner in which evidence was taken and assessed and of alleged bias on the part of the presiding judge. The judge then brought an action in defamation against the applicant company on account of statements in the impugned article accusing her of ignoring relevant evidence, giving a ‘scandalous’ judgment and having ‘unfinished business’ with the alleged victim. In December 2005 a regional court found for the judge and ordered the applicant company to pay EUR 7,000 in compensation and to publish a summary of the judgment.
Law – Article 10: The issue discussed in the impugned article concerned a matter of public interest, but in addition to criticising HP’s trial also contained particularly harsh criticism of the presiding judge as having been biased. The statements in question must be considered as statements of fact, which the applicant company unsuccessfully sought to prove before the domestic courts. The seriousness of the allegation that the judge had purposely given too little weight to some evidence and too much weight to other evidence required a very solid factual basis, which the applicant company was unable to rely on. The applicant company was ultimately ordered to pay EUR 7,000, a reasonable amount taking into account the length and content of the impugned article. In sum, in awarding such compensation in respect of an article that was so damaging to the judge’s reputation, the State had acted within its margin of appreciation.
Conclusion: no violation (unanimously).

Citations:

3084/07 – CLIN, [2012] ECHR 2044

Links:

Bailii

Statutes:

European Convention on Human Rights 10-1

Jurisdiction:

Human Rights

Citing:

See Also – Falter Zeitschriften Gmbh v Austria (No 2) (1707) ECHR 18-Sep-2012
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Legal Professions

Updated: 12 November 2022; Ref: scu.467000