Category: Human Rights

Robba v Italy: ECHR 9 Oct 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses award – domestic proceedings ; Costs and expenses award – Convention proceedings

Citations:

50293/99, [2003] ECHR 494

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 07 December 2022; Ref: scu.186656

A G v Italy: ECHR 9 Oct 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses award – Convention proceedings

Citations:

66441/01, [2003] ECHR 480

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 07 December 2022; Ref: scu.186660

Federici v Italy: ECHR 9 Oct 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses award – Convention proceedings

Citations:

63523/00, [2003] ECHR 487

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 07 December 2022; Ref: scu.186659

Ghelardini and Brunori v Italy: ECHR 9 Oct 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses award – domestic proceedings ; Costs and expenses award – Convention proceedings

Citations:

53233/99, [2003] ECHR 489

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 07 December 2022; Ref: scu.186657

Regina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore: HL 1971

Test for police protection need

The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s expectation being falsified either in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. ‘A reasonable chance,’ ‘substantial grounds for thinking,’ ‘a serious possibility’ – I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(1)(c). Instead of too close a calculation, the court should consider the words ‘applying, untrammelled by semantics, principles of common sense and common humanity.’

Judges:

Lord Diplock

Citations:

[1971] 1 WLR 987, [1971] 2 All ER 691

Statutes:

European Convention on Human Rights, Fugitive Offenders Act 1967 4(1)(c)

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (A and Others) v Lord Saville of Newdigate and Others QBD 16-Nov-2001
When making a decision which would interfere with the human rights of an individual, and even where the risks from which protections was sought, could be seen as small, it was the duty of the decision maker to justify the interference. The . .
Adopted – Regina (A and others) (Widgery Soldiers) v Lord Saville of Newdigate and Others CA 19-Dec-2001
The court would apply common sense in deciding whether soldier witnesses should be obliged to attend in person at an enquiry in Londonderry, where they claimed their lives would be at risk. It was not appropriate to seek to define what would be . .
Cited – Regina v Chief Constable of Norfolk, ex parte DF Admn 2002
Test for need for police protection
The court considered the duties of the police to protect the applicants.
Held: The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera. The degree of risk described as ‘real and . .
Cited – A and Others, Regina (on the Application of) v Lord Saville of Newdigate and others CA 28-Jul-1999
Former soldiers who had been involved in the events in Londonderry in 1972, and were to be called to give evidence before a tribunal of inquiry, still had cause to fear from their names being given, and so were entitled to anonymity when giving such . .
Cited – A and Another v Inner South London Coroner QBD 24-Jun-2004
At an inquest into the death of a civilian apparently shot by police officers, the officers applied for anonymity, which the coroner refused. They sought judicial review.
Held: How witnesses participated in coroners inquests was to be decided . .
Cited – Secretary of State for Home Department v Ravichandran CA 6-Jun-1997
Application for leave to appeal granted.
Held: This was a case where the relationship of the Tribunal to the Special Adjudicator can and should be considered. ‘I have indicated some of the difficulties which may arise. There is no doubt that . .
Cited – Bennett v Officers A and B and Commissioner of Police for the Metropolis CA 2-Nov-2004
Police Officers had been involved in a shooting in which a man died. They were granted anonymity before the coroner’s court, on evidence suggesting they might be at risk. The family of the deceased appealed.
Held: The coroner misdirected . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Approved – Regina v Home Secretary, ex parte Sivakumaran HL 16-Dec-1987
The House of Lords were concerned with the correct test to be applied in determining whether asylum seekers are entitled to the status of refugee. That in turn gave rise to an issue, turning upon the proper interpretation of Article 1.A(2) of the . .
Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
Cited – Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 07 December 2022; Ref: scu.183661

Regina v Chief Constable of Norfolk, ex parte DF: Admn 2002

Test for need for police protection

The court considered the duties of the police to protect the applicants.
Held: The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera. The degree of risk described as ‘real and immediate’ in Osman . . as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was ‘a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party’ which was, or ought to have been, known to the authorities. Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate one in the present context.

Judges:

Crane J

Citations:

[2002] EWHC 1738 (Admin)

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore HL 1971
Test for police protection need
The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Regina (A and others) (Widgery Soldiers) v Lord Saville of Newdigate and Others CA 19-Dec-2001
The court would apply common sense in deciding whether soldier witnesses should be obliged to attend in person at an enquiry in Londonderry, where they claimed their lives would be at risk. It was not appropriate to seek to define what would be . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 07 December 2022; Ref: scu.183660

Malette v Shulman Jobes, In re: 1990

‘The right to determine what shall be done with one’s own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority.’

Judges:

Robins JA

Citations:

(1990) 67 DLR (4th) 321, (1987) 529 A 2d 434

Jurisdiction:

England and Wales

Cited by:

Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 07 December 2022; Ref: scu.180674

Ferrazzini v Italy: ECHR 12 Jul 2001

(Grand Chamber) The court had to decide whether tax proceedings brought by the state against an individual involved the determination of a civil right within the meaning of article 6(1). It was argued by the Government that the existence of an individual’s tax obligation to pay tax belonged exclusively to the realm of public law and its determination did not involve a determination of a civil right. The court said: ‘Pecuniary interests are clearly at stake in tax proceedings, but merely showing that a dispute is ‘pecuniary’ in nature is not in itself sufficient to attract the applicability of Article 6(1) under its ‘civil’ head. In particular, according to the traditional case law of the Conventional institutions, there may exist ‘pecuniary’ obligations vis-a-vis the State or its subordinate authorities which, for the purpose of Article 6(1), are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of ‘civil rights and obligations’. Apart from fines imposed by way of ‘criminal sanction’, this will be the case, in particular, where an obligation which is pecuniary in nature derives from tax legislation or is otherwise part of normal civic duties in a democratic society.
The Convention is, however, a living instrument to be interpreted in the light of present-day conditions, and it is incumbent on the Court to review whether, in the light of changed attitudes in society as to the legal protection that falls to be accorded to individuals in their relations with the State, the scope of Article 6(1) should not be extended to cover disputes between citizens and public authorities as to the lawfulness under domestic law of the tax authorities’ decisions.
Relations between the individual and the State have clearly developed in many spheres during the 50 years which have elapsed since the Convention was adopted, with State regulation increasingly intervening in private-law regulations. This has led the Court to find that procedures defined under national law as being part of ‘public law’ could come within the purview of Article 6 under its ‘civil’ head if the outcome was decisive for private rights and obligations, in regard to such matters as, to give some examples, the sale of land, the running of a private clinic, property interests, the granting of administrative authorisations relating to the conditions of professional practice or of a licence to serve alcoholic beverages. Moreover, the State’s increasing intervention in the individual’s day-to-day life, in terms of welfare protection, for example, has required the Court to evaluate features of public law and private law before concluding that the asserted right could be classified as ‘civil’.
However, rights and obligations existing for an individual are not necessarily civil in nature. Thus, political rights and obligations, such as the right to stand for election to the National Assembly, even though in those proceedings the applicant’s pecuniary interests were at stake, are not civil in nature, with the consequence that Article 6(1) does not apply. Neither does that provision apply to disputes between administrative authorities and those of their employees who occupy posts involving participation in the exercise of powers conferred by public law. Similarly, the expulsion of aliens does not give rise to disputes over civil rights for the purposes of Article 6(1) of the Convention, which accordingly does not apply.
In the tax field, developments which might have occurred in democratic societies do not, however, affect the fundamental nature of the obligation on individuals or companies to pay tax. In comparison with the position when the Convention was adopted, those developments have not entailed a further intervention by the State into the ‘civil’ sphere of the individual’s life. The Court considers that tax matters still form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the tax authority remaining predominant . .’

Judges:

Wildhaber J P

Citations:

[2001] STC 1314, (2001) 34 EHRR 1068, 44759/98, [2001] ECHR 464, 3 ITL Rep 918

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – Prosser v The Commissioners of Inland Revenue SCIT 12-Mar-2003
INHERITANCE TAX – interest on outstanding tax – whether not due on account of Human Rights points – interest due. . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – BB, Regina (on The Application of) v Special Immigration Appeals Commission and Another CA 19-Nov-2012
The Secretary of State wished to deport the applicant on the basis of his suspected involvement in acts of terrorism. An order for his deportation had been revoked by the respondent, but he had remained on very stringent bail conditions, since 2007. . .
Cited – QX v Secretary of State for The Home Department Admn 15-May-2020
Challenge to Temporary Exclusion Order.
Held: The concept of ‘civil rights and obligations’ cannot be interpreted solely by reference to national law but has an autonomous meaning within article 6(1) . .
Cited – Regeneron Pharmaceuticals Inc v Kymab Ltd SC 24-Jun-2020
SC Kymab alleged that the relevant patents are invalid for insufficiency because they did not enable the ordinary skilled person to work the claimed invention across the breadth of the claims. The patents were . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Taxes Management

Updated: 07 December 2022; Ref: scu.164805

Ringeisen v Austria: ECHR 23 Jun 1973

(Interpretation)

Citations:

2614/65, [1973] ECHR 1

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Citing:

See also – Ringeisen v Austria ECHR 16-Jul-1971
The Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that . .
See Also – Ringeisen v Austria ECHR 22-Jun-1972
Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 December 2022; Ref: scu.164865

Le Compte, Van Leuven And De Meyere v Belgium: ECHR 23 Jun 1981

Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have been imposed on the applicants (warning, censure and reprimand . .), the suspension of which they complained undoubtedly constituted a direct and material interference with the right to continue to exercise the medical profession. The fact that suspension was temporary did not prevent its impairing that right; in the ‘contestations’ (disputes) contemplated by Article 6.1 the actual existence of a ‘civil’ right may, of course, be at stake but so may the scope of such a right or the manner in which the beneficiary may avail himself thereof.’

Citations:

7238/75, 6878/75, (1981) 4 EHRR 1

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

Human Rights

Citing:

See Also – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
The applicants were suspended from practising medicine for three months by the Provincial Council of the Ordre des medecins. They appealed unsuccessfully to the Appeal Council and again unsuccessfully to the Court de Cassation. Dr Le Compte . .

Cited by:

Cited – Sadler v The General Medical Council PC 15-Jul-2003
(The Committee on Professional Performance of the GMC) The distinction drawn in Krippendorf between a practitioner’s current competence and past performance was not to be taken too far. The purpose of the assessment was not to punish the . .
See Also – Le Compte, Van Leuven And De Meyere v Belgium ECHR 18-Oct-1982
Even where ‘jurisdictional organs of professional associations’ are set up: ‘Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
See also – Albert And Le Compte v Belgium ECHR 10-Feb-1983
Hudoc Violation of Art. 6-1; Just satisfaction reserved . .
See Also – Albert And Le Compte v Belgium ECHR 24-Oct-1983
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings. . .
See Also – Albert And Le Compte v Belgium (Article 50) ECHR 24-Oct-1983
The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. . .
Cited – Malik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Cited – Reprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 07 December 2022; Ref: scu.164896

Fayed v United Kingdom: ECHR 6 Oct 1994

The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb of article 6(1) to complain that they had been denied effective access to the courts to challenge the determination made against them.
Held: Department of Trade and Industry inspectors are investigators not adjudicators. The absence of a remedy in court, against their report, was not a breach of the Convention. The basic principle underlying article 6(1) is that ‘civil claims must be capable of being submitted to a judge for adjudication.’ ‘It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or the remedy.’ and ‘The Inspectors did not adjudicate, either in form or in substance. They themselves said in their report that their findings would not be dispositive of anything. They did not make a legal determination as to criminal or civil liability concerning the Fayed brothers, and in particular concerning the latter’s civil right to honour and reputation. . . the object of the proceedings before the Inspectors was not to resolve any dispute (contestation) . . . In short, it cannot be said that the Inspectors’ inquiry ‘determined’ the applicants’ civil right to a good reputation, for the purposes of Article 6(1), or that its result was directly decisive for that right.’ The application failed.

Citations:

Independent 06-Oct-1994, Times 11-Oct-1994, 17101/90, [1994] ECHR 27, (1994) 18 EHRR 393

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Citing:

See Also – Saunders v United Kingdom ECHR 30-Sep-1994
Link between self-incrimination and presumption of innocence – use of compulsion. . .

Cited by:

Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Secretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
Cited – R, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Uzukauskas v Lithuania ECHR 6-Jul-2010
ECHR The applicant had a licence for a pistol and rifle. His was refused another licence, and then the existing licence was withdrawn. His name had been included in a police list in an operational records file . .
Cited – G, Regina (on The Application of) v X School SC 29-Jun-2011
The claimant was employed as a teaching assistant. He was suspended after allegations of sexual misbehaviour with boy at the school. He refused to take part in the disciplinary proceedings until the police investigation was concluded. A decision was . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Cited – Reprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
Lists of cited by and citing cases may be incomplete.

Company, Human Rights

Updated: 07 December 2022; Ref: scu.80488

Revenue and Customs v Connaught Corporate Solutions Ltd (Penalty – Failure To Comply With Notices): FTTTx 6 Nov 2018

PENALTY – Failure to comply with notices under s313C of Finance Act 2004 – whether penalties ‘criminal charges’ for purposes of Article 6 of the ECHR – whether conditions to issue notices satisfied – whether HMRC entitled to serve multiple notices – whether taxpayer had reasonable excuse – penalties of pounds 4,000 and pounds 3,000 imposed

Citations:

[2018] UKFTT 649 (TC), [2019] SFTD 369, [2019] STI 337

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights, Taxes Management

Updated: 06 December 2022; Ref: scu.632414

Begraj and Another v Secretary of State for Justice: QBD 12 Feb 2015

This Appeal raises a point of public importance, namely the scope and applicability of the doctrine of judicial immunity under section 9 (3) HRA 1998; and whether, in this case, that statutory immunity bars the Appellants’ cause of action against the Secretary of State in respect of the consequences of a meeting between the police and two members of the judiciary at which information was imparted by the police which ultimately led to the collapse of a long running trial in the Employment Tribunal.

Judges:

His Honour Judge McKenna

Citations:

[2015] EWHC 250 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights

Updated: 06 December 2022; Ref: scu.542731

Yankov And Manchev v Bulgaria: ECHR 22 Oct 2009

Judges:

Peer Lorenzen, P

Citations:

27207/04, [2009] ECHR 1608

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 December 2022; Ref: scu.376338

MA (Pakistan) v Secretary of State for the Home Department: CA 27 Jul 2009

The claimant appealed against refusal of leave to enter and cancelling his leave to remain. He had made his claim on human rights grounds, saying that the refusal would split him from his wife. He had been told that he would have to renew his application from abroad.
Held: Where a case was properly founded on Article 8 grounds, it was not only cases involving children where proper consideration was to be give to allowing an appeal to go ahead in this country and without having to apply from abroad, and Chikwamba should not be read to create such a restriction.

Judges:

Jacob LJ, Sullivan LJ, Patten LJ

Citations:

[2009] EWCA Civ 953, Times 05-Oct-2009

Links:

Bailii

Statutes:

European Convention of Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 06 December 2022; Ref: scu.375161

P, Regina (On the Application of) v HM Coroner for the District Of Avon: Admn 5 Mar 2009

The deceased was found suspended by a sheet in her prison cell. The jury found accidental death, not being satisfied that she was not issuing a cry for help. The family appealed saying that the jury had not been directed that they could provide a narrative verdict to explain further their conclusions.
Held: The jury had not been misdirected but that, even if there had been a misdirection as claimed, he would not have remitted the matter for a new inquest because, taking into account a report of the Prisons and Probation Ombudsman published shortly before the inquest, the investigative obligation imposed upon the state by Article 2 had been effectively discharged.
Beatson J said: ‘I reject the submission that it was incumbent on the Coroner to direct the jury expressly that a narrative summary should be added to a short form verdict. That essentially would have created a hybrid. The jury had three options open to them. They were ‘enabled’ to express their conclusions on the core facts if they considered that the two short form verdicts did not do so.
I also conclude that it is possible to infer from this verdict that the accident verdict was sufficient to express the jury’s factual conclusions and conclusion that there was insufficient evidence that the 12 acts or omissions contributed to the death in more than a minimal or trivial way.’

Judges:

Beatson J

Citations:

[2009] EWHC 820 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Cited by:

Appeal from – P, Regina (on The Application of) v HM Coroner for The District of Avon CA 18-Dec-2009
The deceased was found hanging in her prison cell. The jury returned a verdict of accidental death, not being satisfied that she was not merely making a cry for help. The family appealed a finding that the inquest had satisfied the requirement for a . .
Lists of cited by and citing cases may be incomplete.

Coroners, Prisons, Human Rights

Updated: 06 December 2022; Ref: scu.341842

Defence Estates v JL and Another: Admn 5 May 2009

The claimant, which is responsible for managing property belonging to the Ministry of Defence (including residential property), to house members of the Armed Forces and their families, seeks possession of premises in Leeds in which the defendant and members of her family are living, and the claimant also seeks damages for use and occupation.

Citations:

[2009] EWHC 1049 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Armed Forces, Housing, Human Rights

Updated: 06 December 2022; Ref: scu.346707

Weaver v London Quadrant Housing Trust: CA 17 Feb 2009

The respondent sought leave to appeal against a finding that as a registered social landlord it was exercising a public function and was a hybrid public authority.
Held: Leave was granted. A protective costs order was made for the respondent to ensure proper representation of both sides before the court.

Citations:

[2009] EWCA Civ 235, [2009] 6 Costs LR 875

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At First Instance – Weaver, Regina (on the Application of) v London and Quadrant Housing Trust Admn 24-Jun-2008
An assured tenant sought to challenge a possession order made for rent arrears. He said that as a public body the landlord had a duty under human rights law to pursue all posssible alternate solutions before seeking possession.
Held: The . .

Cited by:

Leave to appeal – London and Quadrant Housing Trust v Weaver, Regina; Equality and Human Rights Commission intervening CA 18-Jun-2009
The Trust appealed against a finding that in terminating an assured tenancy transferred to it from a local authority, it had acted as a hybrid public authority and was subject to controls under the 1998 Act.
Held: (Rix LJ dissenting). The . .
Cited – E, Regina (On the Application of) v Governing Body of JFS and Another SC 14-Oct-2009
The claimant had successfully challenged the policy of the school as racially discriminatory. He now sought an ancillary order that the respondents should not be allowed to request their costs from the defendant’s appeal whatever the outcome, the . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights, Costs

Updated: 06 December 2022; Ref: scu.324676

JB (India) and others v Entry Clearance Officer: CA 11 Feb 2009

‘The three appellants are siblings. They appealed against the respondent’s refusal to issue them with entry clearance to settle in the United Kingdom with their mother who is their sponsor. In a determination their appeals were dismissed under the Immigration Rules by Immigration Judge Parker, but allowed on Article 8 grounds.’

Citations:

[2009] EWCA Civ 234

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 06 December 2022; Ref: scu.324646

Saunders, Regina (On the Application of) v Independent Police Complaints Commission and Others: CA 14 Jan 2009

Interlocutory application which raises the question whether the court should permit an appeal to proceed in circumstances in which the appellant and the respondents had reached a settlement on all issues save as to the costs of the appeal so far.

Judges:

Sir Anthony Clarke, MR

Citations:

[2009] EWCA Civ 187

Links:

Bailii

Jurisdiction:

England and Wales

Police, Human Rights

Updated: 06 December 2022; Ref: scu.326976

Z and T v United Kingdom: ECHR 28 Feb 2006

The applicants were Christian Pakistanis. Their asylum claims having failed, they feared that if returned to Pakistan, they would be persecuted, and asked for their article 9 rights, saying that the flagrant denial test should not be applied, as this would fail to respect the primacy of the applicants’ religious rights.
Held: The argument was rejected. Even assuming that article 9 was capable of being engaged in the case of the expulsion of an individual by a Contracting State, the applicants had not shown that they were personally at risk or were members of such a vulnerable or threatened group, or in such a precarious position as Christians, as might disclose a flagrant violation of article 9 of the Convention. However, only very limited assistance was to be found in article 9: ‘Otherwise it would be imposing an obligation on Contracting States effectively to act as indirect guarantors of freedom of worship for the rest of the world. If, for example, a country outside the umbrella of the Convention were to ban a religion but not impose any measure of persecution, prosecution, deprivation of liberty or ill-treatment, the court doubts that the Convention could be interpreted as requiring a Contracting State to provide the adherents of that banned sect with the possibility of pursuing that religion freely and openly on their own territories. While the court would not rule out the possibility that the responsibility of the returning state might in exceptional circumstances be engaged under article 9 of the Convention where the person concerned ran a real risk of flagrant violation of that article in the receiving state, the court shares the view of the House of Lords in the Ullah case that it would be difficult to visualise a case in which a sufficiently flagrant violation of article 9 would not also involve treatment in violation of article 3 of the Convention.’

Citations:

Unreported, 28 February 2006, 27034/05, [2006] ECHR 1177

Links:

Bailii

Statutes:

European Convention on Human Rights 9

Jurisdiction:

England and Wales

Cited by:

Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 06 December 2022; Ref: scu.277276

Lisowski v Regional Court of Bialystok (Poland): Admn 28 Nov 2006

The defendant resisted extradition for a fraud prosecution brought 11 years after the relevant events which occurred in 1995. He had come to England in 2000, and the first he heard of the accusation was when he was arrested in September 2006. It was not suggested that he had deliberately fled the prosecution.
Held: The court assumed that the Polish courts had an appropriate abuse of process jurisdiction and would, in accordance with Article 6 of the Human Rights Convention, examine the question whether by reason of delay it would be unjust to allow the prosecution to proceed. Even so, before the court could rely on the proposition that the requesting state was best placed to examine the abuse of process issue, the requesting state, Walker J said, ‘must produce some evidence that there was good reason to think that there would be a basis for rejecting an abuse of process application.’ Keene LJ agreed: ‘Section 14 of the 2003 Act imposes a duty upon this court to make its own decision as to whether it would be unjust or oppressive to extradite someone by reason of the passage of time. The fact that the requesting state is a signatory to the ECHR is a relevant factor but I do not myself see it as being determinative of this issue in the absence of other evidence about the legal processes in that state. After all, states do not always comply with their Convention obligations in every case. It is a matter of record that many signatory states have been found to have breached Article 6 of that convention from time to time.’

Judges:

Walker J, Keene LJ

Citations:

[2006] EWHC 3227 (Admin)

Links:

Bailii

Statutes:

Extradition Act 2003 14, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Cited by:

Cited – Krzyzowski v Circuit Court In Gliwice, Poland Admn 23-Nov-2007
Extradition of the defendant to Poland was sought, the court saying he had fled his trial for burglaries in 1999. The defendant argued that his extradition would now be unfair.
Held: The judge was right to hold that his ruling of deliberate . .
Cited – Krzyzowski v Circuit Court In Gliwice, Poland Admn 23-Nov-2007
Extradition of the defendant to Poland was sought, the court saying he had fled his trial for burglaries in 1999. The defendant argued that his extradition would now be unfair.
Held: The judge was right to hold that his ruling of deliberate . .
Cited – Gomes v Trinidad and Tobago HL 29-Apr-2009
Each appellant challenged orders for their extradition, saying that the delay had been too prolonged, and that detention in Trinidad’s appalling jails would be an infringement of their human rights.
Held: The House had to consider its own . .
Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights

Updated: 06 December 2022; Ref: scu.249150

Illich Sanchez Ramirez v France: ECHR 24 Jun 1996

The applicant was arrested in Khartoum by Sudanese security forces and handed over to French police officers who escorted him to France in a French military aircraft. The ECommHR was willing to accept that he was effectively under the authority, and therefore the jurisdiction, of France on SAA principles, notwithstanding that this authority was being exercised abroad.

Citations:

86 DR 155

Jurisdiction:

Human Rights

Cited by:

Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 December 2022; Ref: scu.238301

ABC v Principal Reporter and Another (Scotland): SC 18 Jun 2020

These appeals concern the role of siblings in the procedures by which children’s hearings in Scotland make compulsory supervision orders (‘CSOs’). The principal issue concerns the procedures required to make sure that public authorities comply with the obligation in article 8 of the European Convention on Human Rights (‘ECHR’) to show respect for the private or family life established between a sibling and a child who might be the subject of a CSO.

Judges:

Lady Hale, Lord Kerr, Lord Wilson, Lord Hodge, Lady Arden

Citations:

[2020] UKSC 26

Links:

Bailii, Bailii Summary

Jurisdiction:

Scotland

Children, Human Rights

Updated: 05 December 2022; Ref: scu.651752

Austrianu v Romania: ECHR 12 Feb 2013

ECHR Article 9-1
Manifest religion or belief
Confiscation of cassette player used by prisoner to listen to religious tapes: inadmissible
Facts – The applicant, who was of Baptist confession, was serving a lengthy prison sentence. After reacting to the confiscation of a small radio-cassette player he had received after obtaining good results on a ‘Christian moral education’ programme, he was informed by the prison authorities that prisoners were only entitled to have battery-operated radios and television sets, but that he could listen to his audio cassettes on the cassette player belonging to the prison’s cultural-educational department if he wished. In his application to the European Court, the applicant complained inter alia that the confiscation of his religious tapes and cassette player had infringed his freedom of religion.
Law – Article 9: This provision did not protect every act motivated or inspired by a religion or belief. Taking into account the State’s margin of appreciation, confiscation of the cassette (assuming it constituted interference with the applicant’s rights under Article 9) had not completely prevented the applicant from manifesting his religion. According to the Government the prison authorities had offered the applicant the use of a cassette player in the prison’s cultural-educational department to listen to his religious cassettes and, although the applicant had contested the existence of such a facility, he did not appear to have raised any complaint in that respect with the prison authorities. Moreover, he had been allowed to attend religious seminars, and it had never been contested that he could read religious books in his cell. Taking these considerations into account, the Court considered that restricting the list of things prisoners could have in their cells by excluding items (such as cassette players) which were not essential for manifesting religion was a proportionate response to the necessity to protect the rights and freedoms of others and to maintain security in prison.
Conclusion: inadmissible (manifestly ill-founded).
(See also Kovalkovs v. Latvia (dec.), no. 35021/05, 31 January 2012)
The Court also found a complaint of discrimination on religious grounds (Article 14 in conjunction with Article 9) manifestly ill-founded. It upheld the applicant’s complaints of violations of both the substantive and procedural limbs of Article 3 in respect of an incident in which he was hit with a truncheon on 9 December 1998, but found no violation of that provision in respect of an alleged lack of adequate medical treatment.

Citations:

16117/02 – Legal Summary, [2013] ECHR 396

Links:

Bailii

Statutes:

European Convention on Human Rights 9-1

Human Rights, Prisons

Updated: 05 December 2022; Ref: scu.491920

Garcia Mateos v Spain: ECHR 19 Feb 2013

ECHR Article 14
Discrimination
Failure to enforce a judgment acknowledging gender discrimination against a working mother: violation
Facts – In February 2003, relying on the labour regulations, the applicant asked her employer for a reduction in her working hours as she had custody of her son, who was under the six-year age-limit. When her employer refused, she brought proceedings before the Employment Tribunal, but her complaint was dismissed. In a judgment of 2007 the Constitutional Court upheld the applicant’s amparo complaint. It found that the principle of non-discrimination on grounds of sex had been breached in respect of the applicant, as her employer had prevented her from reconciling her professional life with her family life. It remitted the case to the Employment Tribunal for a new judgment. In 2007 the Tribunal dismissed the applicant’s case and she lodged a fresh amparo appeal. In 2009 the Constitutional Court found that its 2007 judgment had not been properly enforced and declared null and void the Employment Tribunal’s judgment. It decided, however, that it would not be appropriate to remit the case to the Employment Tribunal for a further decision, as in the meantime the applicant’s son had reached the age of six. It further ruled that it could not award compensation in lieu as this was not permitted by the Institutional Law on the Constitutional Court.
Law – Article 14 in conjunction with Article 6 ss 1: The State was required to enable applicants to obtain due enforcement of decisions given by the national courts. The Constitutional Court had found, in its 2009 decision, that the applicant’s right to the enforcement of its first judgment, acknowledging a violation of the non-discrimination principle, had been breached. A decision or measure in an applicant’s favour did not deprive him or her of ‘victim’ status unless the authorities had recognised, expressly or in substance, and then remedied the violation of the Convention. The violation found by the Constitutional Court had not to date been remedied in spite of two judgments by that court.
The applicant’s initial intention had not been to obtain compensation but to seek recognition of her right to reduced working hours so that she could look after her son when he was still under six. She subsequently submitted a compensation claim only because she no longer qualified for the reduction in working hours, as her child had passed the age-limit. The Constitutional Court, having refused her compensation in its decision of 2009, did not give her any indication about the possibility of taking her claim to any other administrative or judicial body. It was true that because of the child’s age at the end of the proceedings it was no longer possible to grant alternative redress for the acknowledged breach of the applicant’s right. Nor could the Court could indicate to the respondent State how redress in the context of amparo complaints should be provided. It simply observed that the protection provided by the Constitutional Court had proved ineffective. Moreover, the applicant’s claim before the Employment Tribunal regarding the refusal to grant her a reduction in working hours had not been settled on the merits, even though the two unfavourable judgments of the Employment Tribunal had been declared null and void. In addition, her amparo appeal had proved meaningless, as the Constitutional Court had considered that the law did not provide for compensation as a means of redress for a breach of a fundamental right. Accordingly, the failure to restore to the applicant her full rights had rendered illusory the protection provided through the upholding of an amparo complaint by the Constitutional Court.
Conclusion: violation (unanimously).
Article 41: EUR 16,000 in respect of non-pecuniary damage.
Discrimination (Article 8)

Citations:

38285/09 – Legal Summary, [2013] ECHR 395

Links:

Bailii

Statutes:

European Convention on Human Rights 6-1 14

Human Rights, Discrimination, Employment

Updated: 05 December 2022; Ref: scu.491922

Tymoshenko v Ukraine: ECHR 30 Apr 2013

Citations:

49872/11 – Chamber Judgment, [2013] ECHR 389

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Tymoshenko v Ukraine ECHR 31-May-2012
. .
See Also – Tymoshenko v Ukraine ECHR 3-Jul-2012
. .
Legal Summary – Tymoshenko v Ukraine (Legal Summary) ECHR 30-Apr-2013
ECHR Article 5-1
Lawful arrest or detention
Pre-trial detention for allegedly contemptuous behaviour to trial court: violation
Article 18
Restrictions for unauthorised purposes
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 05 December 2022; Ref: scu.491929

B v Romania (No 2): ECHR 19 Feb 2013

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of adequate legal protection in a case concerning a mother’s committal to a psychiatric institution and the placement of her children in care: violations
Facts – The applicant was assisted by the social services from 1996 onwards, having been classified as a disabled person unfit to work. In 2000 she was diagnosed with ‘paranoid schizophrenia’. Two of her children were minors at the time. No measure of guardianship or administration was ever introduced for the applicant or her children. Since 2000 she has been admitted on numerous occasions to psychiatric institutions, after being taken there by the police. Her children have not been living with her; instead they were placed in residential care for abandoned children.
Law – Article 8
(a) The applicant’s confinement – In most of the cases previously heard by the Court concerning ‘persons of unsound mind’, the domestic proceedings concerning psychiatric confinement had been examined under Article 5 of the Convention. Consequently, in order to determine whether the confinement in the present case had complied with Article 8 of the Convention, the Court found it appropriate to refer, mutatis mutandis, to its case-law under Article 5 ss 1 (e).
Despite the fact that the law on the protection of disabled persons imposed an obligation to introduce a legal protection measure, in the form of guardianship or administration, no such measure had been adopted in respect of the applicant, even though her state of health had been known to the authorities well before the beginning of her periods of confinement. Her vulnerability had also been noted and brought to the attention of the domestic courts by numerous reports of the social services. But neither the social services nor the courts had drawn any conclusions as regards the legal protection of the applicant herself. It was precisely the shortcomings of the authorities which had contributed to depriving her of the guarantees available under mental-health legislation, in particular the right for the patient to be assisted when giving consent or the obligation to notify the patient’s legal representative of the measure of confinement and the reasons for its adoption. Recent amendments to mental-health legislation provided that if the patient had no legal representative and was unable to appoint one on account of mental incapacity, the hospital would be required to notify the relevant local authority promptly so that legal protection measures could be put in place. However, those new provisions had not benefited the applicant. The provisions of domestic law governing psychiatric confinement and the protection of persons unable to look after their own interests had not been applied to the applicant in the spirit of her right to respect for her private life under Article 8. The authorities had thus failed in their obligation to take appropriate measures for the defence of the applicant’s interests.
Conclusion: violation (unanimously).
(b) Placement of the applicant’s children in care – It was because of the lack of special protection for the applicant, who, in particular, was not assigned a lawyer during the placement proceedings or any guardian ad litem, that she had not been able to participate effectively in the proceedings concerning the placement of her children or to have her interests defended. In addition, her family situation had been examined on only two occasions in a period of twelve years. Lastly, there was no evidence that the social workers had maintained the regular contact with the applicant that would have afforded a good opportunity to make her views known to the authorities. For those reasons, the decision-making process leading to the placement of the applicant’s two minor children had not been conducted in compliance with her rights as guaranteed by Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.

Citations:

1285/03 – Legal Summary, [2013] ECHR 393

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Human Rights, Children, Health

Updated: 05 December 2022; Ref: scu.491921