Category: Human Rights

Antonio Gutierrez Dorado and Carmen Dorado Ortiz v Spain: ECHR 27 Mar 2012

Citations:

30141/09, [2012] ECHR 600

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another SC 25-Nov-2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 October 2022; Ref: scu.452519

Saadi v United Kingdom: ECHR 29 Jan 2008

(Grand Chamber) The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants falling within defined criteria (usually by nationality) were normally detained at Oakington while their claims were determined in an accelerated process. The Grand Chamber examined the concept of arbitrary detention in the context of the first limb of article 5(1)(f) authorising a detention to prevent the person making an unauthorised entry to the country. The Chamber directed itself to the restrictions permitted by the various sub-paragraphs of article 5(1), saying that it is fundamental that no arbitrary detention can be compatible with article 5(1) and that the notion of ‘arbitrariness’ extends beyond lack of conformity with national law. The notion of arbitrariness in the context of this article varies to a certain extent depending on the type of detention involved. To avoid being branded as arbitrary, such detention must be carried out in good faith and its length should not exceed that reasonably required for the purpose pursued.
‘One general principle established in the case law is that detention will be ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of article 5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.
The notion of arbitrariness in the contexts of sub-paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The duration of the detention is a relevant factor in striking such a balance.
The court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under article 5(1)(a), where, in the absence of bad faith or one of the other grounds set out in para 69 above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the court under article 5(1).’

Citations:

[2008] ECHR 79, [2008] ECHR 80, 13229/03, (2008) 47 EHRR 17, [2008] Imm AR 368, [2008] INLR 436

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights 5(1)(f)

Jurisdiction:

Human Rights

Citing:

See Also – Saadi v United Kingdom ECHR 11-Jul-2006
The claimant had been detained as an asylum seeker. He complained that reasons for his detention were not given to him or his lawyer for 76 hours.
Held: The delay was incompatible with the applicant’s rights. . .
See Also – Saadi v United Kingdom ECHR 16-May-2007
Grand Chamber – Press Release . .

Cited by:

Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
See Also – Saadi v United Kingdom ECHR 3-Jun-2010
Execution of the judgment . .
Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
Cited – Lee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 October 2022; Ref: scu.280504

Brand v The Netherlands: ECHR 11 May 2004

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Non-pecuniary damage – financial award
The court set out a list of cases in which a person can be deprived of liberty without infringement of Article 5

Citations:

49902/99, [2004] ECHR 196, (2004) 17 BHRC 398

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Secretary of State for Justice v Walker; Same v James CA 1-Feb-2008
The claimant had been sentenced to a short period of imprisonment but with an indeterminate term until he demonstrated that it was no longer necessary for the protection of the public. He complained that the term having expired, no opportunity had . .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 October 2022; Ref: scu.196848

Grisez v Belgique: ECHR 26 Sep 2002

The court held that ‘the medical experts did actually cause a certain amount of delay in the conduct of the proceedings,’ and rejected the complaint under article 5(3): ‘[T]he delay due to the medical reports, although improper, does not in itself provide a sufficient basis for a finding that there was a violation of article 5(3) of the Convention. The total length of the detention pending trial in this case-two years, three months and nineteen days-does not appear excessive in view of the seriousness of the charges and the number of matters requiring investigation.’

Citations:

35776/97, [2002] ECHR 632, (2003) 36 EHRR 854, [2002] ECHR 637

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – O v Crown Court at Harrow HL 26-Jul-2006
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 06 October 2022; Ref: scu.213204

Whitefield v General Medical Council: PC 14 Nov 2002

The doctor had been allowed to continue in practice only on condition that he did not drink alcohol and that he complied with other conditions to support that restriction. He challenged it as an infringement of his human rights.
Held: The conditions were in pursuit of a legitimate aim, and in the wider interest of protecting his patients. There were limits to the right to a private life, and those had not been transgressed.

Judges:

Hope of Craighead L, Sir Denis Jenry, Sir Philip Otton

Citations:

Times 29-Nov-2002, [2002] UKPC 62

Links:

Bailii, PC

Statutes:

European Convention on Human Rights Art 8

Jurisdiction:

England and Wales

Citing:

Cited – Bruggeman and Scheuten v Federal Republic of Germany ECHR 12-Jul-1977
(Commission) The applicants complained at restrictions on the termination of unwanted pregnancies.
Held: Article 8(1) secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. He . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 06 October 2022; Ref: scu.178295

Bouamar v Belgium: ECHR 29 Feb 1988

Hudoc Violation of Art. 5-1; Violation of Art. 5-4; Just satisfaction reserved; Judgment (Just satisfaction) Struck out of the list (friendly settlement)
A person detained as a juvenile in need of educational supervision should not be detained in a prison where no education is available. The applicant’s successive placements in a remand prison, by way of interim custody measure, amounted to unlawful detention under Article 5-1 and that he had not been able to take any proceedings satisfying the requirements of Article 5

Citations:

9106/80, [1988] ECHR 1, (1989) 11 EHRR 1

Links:

Worldlii, Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
See Also – Bouamar v Belgium ECHR 27-Jun-1988
. .
Cited – Brown v The Parole Board for Scotland, The Scottish Ministers and Another SC 1-Nov-2017
The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Education

Updated: 06 October 2022; Ref: scu.165007

A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent): FC 20 Jan 2020

M and F, members of an ultra orthodox Jewish sect, had five children. F transgendered and sought and was granted an order for restricted indirect contact. The Court of Appeal allowed his appeal and the case was remitted for reconsideration.
Held: F now accepted with great reluctance the children’s opposition to contact, and the matter as formally abandoned.

Judges:

Hayden J

Citations:

[2020] EWFC 3

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At FD (1) – J v B (Ultra-Orthodox Judaism: Transgender) FC 30-Jan-2017
F had left the family all ultra orthodox Jews, to identify and live as a woman, an action straightforwardly forbidden within the sect. F had abandoned contact with the children but now sought to re-instate at first indirect but then full contact. M, . .
At CA – Re M (Children) CA 20-Dec-2017
F and M were members of an ultra orthodox Jewish sect. H transgendered, a process utterly unacceptable within the sect. Any continued association with the children would severely risk their ostracism, and at first F did not seek contact, but on his . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 06 October 2022; Ref: scu.646220

Cumpana and Mazare v Roumanie: ECHR 17 Dec 2004

(Grand Chamber) Reputation falls within the ambit of the protection afforded by article 8

Judges:

Wildhaber P

Citations:

33348/96, (2005) 41 EHRR 14, [2004] ECHR 692

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10

Citing:

See Also – Cumpana Et Mazare v Roumanie ECHR 10-Jun-2003
Reputation can be a Convention right within Article 8. . .

Cited by:

Cited – Flood v Times Newspapers Ltd SC 21-Mar-2012
The defendant had published an article which was defamatory of the claimant police officer, saying that he was under investigation for alleged corruption. The inquiry later cleared him. The court was now asked whether the paper had Reynolds type . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 October 2022; Ref: scu.452429

G v Germany: ECHR 1987

ECHR (Commission) The applicants had conducted a sit-in, to protest against nuclear arms, and which obstructed a highway, which gave access to a US army barracks in Germany, for twelve minutes every hour.
Held: Applying the authorities, the Commission said that it considered that ‘the right to freedom of peaceful assembly is secured to everyone who organises or participates in a peaceful demonstration.’
However, it went on to say that: ‘[T]he applicant’s conviction for having participated in a sit-in can reasonably be considered as necessary in a democratic society for the prevention of disorder and crime. In this respect, the Commission considers especially that the applicant had not been punished for his participation in the demonstration . . as such, but for particular behaviour in the course of the demonstration, namely the blocking of a public road, thereby causing more obstruction than would normally arise from the exercise of the right of peaceful assembly. The applicant and the other demonstrators had thereby intended to attract broader public attention to their political opinions concerning nuclear armament. However, balancing the public interest in the prevention of disorder and the interest of the applicant and the other demonstrators in choosing the particular form of a sit-in, the applicant’s conviction for the criminal offence of unlawful coercion does not appear disproportionate to the aims pursued.’

Judges:

CA Norgaard, P

Citations:

[1989] ECHR 28, 13079/87

Links:

Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 October 2022; Ref: scu.452371

Amrohalli v Denmark: ECHR 11 Jul 2002

A properly conducted examination of proportionality when considering a deportation is quite capable of producing a decision in favour of the applicant.

Citations:

Unreported, 11 July 2002

Jurisdiction:

Human Rights

Cited by:

Cited – Machado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 05 October 2022; Ref: scu.225195

Smith and Grady v The United Kingdom: ECHR 27 Sep 1999

The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into private lives and sexual activity were intrusive, and given the excessive consequences following, were also striking in their inability to admit of exceptions. The threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court’s analysis of complaints under article 8 of the Convention.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No separate issue under Art. 14+8; No violation of Art. 3 or Art. 14+3; Not necessary to examine under Art. 10 or Art. 14+10; Violation of Art. 13; Just satisfaction reserved
Hudoc Judgment (Just satisfaction) Non-pecuniary damage – financial award; Pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings

Citations:

Gazette 10-Nov-1999, Times 11-Oct-1999, (1999) 29 EHRR 493, (1999) IRLR 734, (2001) 31 EHRR 620, [2000] 29 EHRR 549, [2000] ECHR 383, 33986/96, [1999] ECHR 72, [1999] ECHR 180, 33985/96

Links:

Worldlii, Worldlii, Bailii, Bailii

Statutes:

European Convention on Human Rights 8 13 41, Prison Act 1952, European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Appeal from – Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
Appeal from – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .

Cited by:

Cited – The Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
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 . .
Cited – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
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 – Wilkinson, Regina (on the Application Of) v Inland Revenue HL 5-May-2005
The claimant said that the widows’ bereavement tax allowance available to a wife surviving her husband should be available to a man also if it was not to be discriminatory.
Held: Similar claims had been taken before the Human Rights Act to the . .
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Energy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
See Also – Smith And Grady v United Kingdom (Article 41) ECHR 25-Jul-2000
. .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment, Armed Forces, Administrative

Updated: 05 October 2022; Ref: scu.165747

Osu v Italy: ECHR 11 Jul 2002

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; No separate issue under Art. 13; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings

Citations:

36534/97, [2002] ECHR 593

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 05 October 2022; Ref: scu.174281

Re M (Children): CA 20 Dec 2017

F and M were members of an ultra orthodox Jewish sect. H transgendered, a process utterly unacceptable within the sect. Any continued association with the children would severely risk their ostracism, and at first F did not seek contact, but on his application limited indirect contact was ordered.
Held: Appeal allowed The Judge had not engaged sufficiently with the complex interplay of Article 9: the right to manifest one’s religion; Article 14: prohibition of discrimination; and the reach and scope of the Equality Act 2010. The matter was remitted for further consideration.

Judges:

Sir James Munby, President of the Family Division

Citations:

[2017] EWCA Civ 2164, [2018] 2 FLR 800, [2018] WLR(D) 165, [2018] 4 WLR 60, [2018] 3 All ER 316, [2018] 2 FCR 559

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – J v B (Ultra-Orthodox Judaism: Transgender) FC 30-Jan-2017
F had left the family all ultra orthodox Jews, to identify and live as a woman, an action straightforwardly forbidden within the sect. F had abandoned contact with the children but now sought to re-instate at first indirect but then full contact. M, . .

Cited by:

At CA – A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) FC 20-Jan-2020
M and F, members of an ultra orthodox Jewish sect, had five children. F transgendered and sought and was granted an order for restricted indirect contact. The Court of Appeal allowed his appeal and the case was remitted for reconsideration.
Lists of cited by and citing cases may be incomplete.

Children, Human Rights, Discrimination

Updated: 05 October 2022; Ref: scu.601852