Category: Human Rights

Sukran Aydin And Others v Turkey: ECHR 22 Jan 2013

ECHR Article 10-1
Freedom of expression
Conviction for having spoken non-official language during election campaigns: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to reform the system of judicial discipline
Facts – The applicants, candidates in parliamentary and municipal elections, were convicted and sentenced to prison terms and fines for having spoken Kurdish during rallies, in breach of the statutory ban on using non-official languages in election campaigning. The courts finally decided to defer delivery of the judgments or to grant stays of execution, having regard to the applicants’ character and the circumstances of the cases.
Law – Article 10: The ban on using non-official languages in election campaigning had directly affected the applicants and had thus amounted to an interference with their freedom of expression. The case did not concern the use of an non-official language in the context of communications with public authorities or before official institutions, but a linguistic restriction imposed in their relations with other private individuals. Article 10 encompassed the freedom to receive and impart information and ideas in any language that allowed people to participate in the public exchange of all varieties of cultural, political and social information and ideas and in such contexts language as a medium of expression undoubtedly deserved protection under that provision. The relevant law at the time had contained a blanket prohibition on the use of any language other than the official language, Turkish, in election campaigning. Breaches of that provision had entailed criminal sanctions ranging from six months to one year and the payment of a fine. Moreover, the absolute nature of the ban had deprived the domestic courts of their power to exercise proper judicial scrutiny: they had not gone, in the applicants’ cases, beyond checking records and recordings of the election rallies. While States had discretion to determine their linguistic policies and were entitled to regulate the use of languages during election campaigns, a blanket ban on the use of unofficial languages coupled with criminal sanctions was not compatible with freedom of expression. Furthermore, Kurdish was the applicants’ mother tongue as well as the mother tongue of the population they had addressed. Some of the applicants had stressed that many people in the crowd, notably the elderly and women, did not understand Turkish. Free elections were inconceivable without the free circulation of political opinions and information. The right to impart one’s political views and ideas and the right of others to receive them would be meaningless if the possibility of using the language which could properly convey these views and ideas was diminished owing to the threat of criminal sanctions. Turkey was alone among the twenty-two Council of Europe States in respect of whom materials had been before the Court to make the use of minority languages by candidates speaking at election meetings subject to criminal penalties. The Court welcomed the fact that the impugned legislation had been subsequently amended. In those circumstances and notwithstanding the national authorities’ margin of appreciation, the ban in question had not met a pressing social need and could not be regarded as ‘necessary in a democratic society’.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 to each applicant in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed.

Citations:

60912/08 – CLIN, [2013] ECHR 275, 49197/06, 14871/09, 23196/07, 50242/08

Links:

Bailii

Statutes:

European Convention on Human Rights 10-1

Human Rights

Updated: 14 November 2022; Ref: scu.472445

Mosendz v Ukraine: ECHR 17 Jan 2013

ECHR Positive obligations
Article 2-1
Life
Effective investigation
Failure to establish responsibility of senior officers for conscript’s suicide following incident of hazing: violation
Facts – In April 1999 the applicant’s son, who was performing mandatory military service at the time, was found dead, with gunshot wounds to his head, about six hundred metres from his post. A criminal investigation which found that the death was a suicide was repeatedly reopened on the grounds that it had not been sufficiently thorough. In 2003 an ex-private explained that on the night of the applicant’s son death two sergeants had criticised him and the applicant’s son. They had taken them to a separate room where they had forced them to read military statutes and to do push-ups at the same time. At some point the applicant’s son had collapsed. One sergeant had ordered him to continue and, when he had failed to do so, the sergeant had kicked him and struck him on the back. The ex-private explained that he had been withholding this information through fear of reprisals. In 2005 one of the two sergeants confessed that he had ill-treated the applicant’s son. He was sentenced and stripped of his military rank. Later the other sergeant was relieved from criminal liability as prosecution of the charge had become time-barred. However, the investigator refused to institute criminal proceedings against senior officers in the absence of a corpus delicti, as they had not personally bullied the applicant’s son and had not instructed anybody to do so. The applicant lodged civil and administrative claims against the Ministry of Interior which are still pending.
Law – Article 2: The authorities had assumed the version of a suicide too readily from the outset and had pursued it throughout the investigation, without seriously considering any alternatives. At the same time, a number of gross discrepancies and omissions in the investigation, and certain inexplicable aspects of the case, had undermined the plausibility of the findings and given grounds for serious misgivings regarding the good faith of the authorities concerned and the genuineness of their efforts to establish the truth. It therefore appeared that all the pertinent facts surrounding the incident which, according to the domestic investigation and judicial authorities, had prompted the suicide of the applicant’s son, could not be regarded as having been established with sufficient precision. The domestic authorities, however, had contented themselves with these factual findings. In particular, one of the two sergeants had successfully evaded prosecution until the charges against him had become time-barred. Allowing such a grievous charge to become time-barred was in itself an omission serious enough to raise an issue under Article 2. Moreover, the investigation had stalled and the applicant’s claim against the higher military authority remained unadjudicated. Thus, the State authorities could not be regarded as having discharged their obligation to effectively investigate and duly account for the death of the applicant’s son, which had occurred while he was under their control. It had been that ill-treatment, and not any frustrating life situation unrelated to the realities of being in the army, that had caused the suicide. The State therefore bore responsibility for the death.
Lastly, having regard to the widespread concern that had been voiced (in particular, in the Ukrainian Ombudsman’s report and in some international materials) over the existence of hazing in the Ukrainian army, the Court did not rule out the existence of a broader context of coercive hazing in the military unit where the applicant’s son had been serving. That being so, the failure to allocate the responsibility for what had happened there to upper echelons of the hierarchy, rather than limiting it to the wrongdoings of individual officers, was especially worrying. Therefore, there had been a violation of the State’s positive obligation to protect the life of the applicant’s son while under its control and to adequately account for his death, and of the procedural obligation to conduct an effective investigation into the matter.
Conclusion: violation (unanimously).
Article 41: EUR 20,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

Citations:

52013/08 – Legal Summary, [2013] ECHR 283

Links:

Bailii

Statutes:

European Convention on Human Rights 2-1

Jurisdiction:

Human Rights

Human Rights

Updated: 14 November 2022; Ref: scu.472443

Lashin v Russia: ECHR 22 Jan 2013

ECHR Article 41
Just satisfaction
Award in respect of non-pecuniary damage to be paid to legal guardian for use in best interests of legally incapacitated mental patient
Facts – In 2000 a district court declared the applicant, who was suffering from schizophrenia, legally incapacitated. His father was subsequently appointed as his legal guardian. Two applications were lodged seeking to restore the applicant’s legal capacity. In 2002 the applicant was placed in a psychiatric hospital following a medical hospitalisation order. In 2003 his daughter was appointed as his legal guardian and he was discharged from hospital.
Law – The Court found violations of Articles 8, 5 – 1 and 5 – 4 of the Convention.
Article 41: Taking into account the cumulative effect of the violations of the applicant’s rights, their duration, and the fact that the applicant had been in a particularly vulnerable situation, the Court awarded him EUR 25,000 in respect of non-pecuniary damage.
It further ruled that if the applicant was still legally incapacitated when the award was paid, the Government should ensure that it was transferred to the guardian on the applicant’s behalf and in his best interest.

Citations:

33117/02 – Legal Summary, [2013] ECHR 282

Links:

Bailii

Statutes:

European Convention on Human Rights 41

Human Rights

Updated: 14 November 2022; Ref: scu.472440

Legillon v France: ECHR 10 Jan 2013

ECHR Article 6
Criminal proceedings
Article 6-1
Criminal charge
Fair hearing
Assize court judgment containing statement of reasons for jury’s guilty verdict: violation; no violation
[This summary also covers the judgment in the case of Agnelet v. France, no. 61198/08, 10 January 2013]
Facts – In Agnelet, the applicant was sentenced in 2007 by the Assize Court to twenty years’ imprisonment for murder. He was the lover and lawyer of the murdered woman. Earlier proceedings against him had been discontinued or had led to an acquittal.
The applicant in Legillon was sentenced by the Assize Court of Appeal to fifteen years’ imprisonment for rape and sexual assault of minors under the age of fifteen within his immediate family.
The applicants complained of the lack of reasons given in the assize court judgments. They lodged appeals with the Court of Cassation, which were dismissed on the grounds that the requirements of Article 6 of the European Convention had been satisfied.
Law – Article 6-1: The absence of reasons in a judgment, owing to the fact that the applicant’s guilt was determined by a lay jury, was not in itself contrary to the Convention. The specific features of the procedure before the assize courts with the participation of a lay jury had to be taken into account. It emerged from the Grand Chamber judgment in Taxquet v. Belgium that it should be clear from the indictment, together with the questions put to the jury, which pieces of evidence and factual circumstances among all those examined in the course of the trial the jurors had ultimately based their answers to the questions on, and that the questions themselves had to be precise and geared to the individual concerned.
In Agnelet, the applicant had been the only defendant and the case had been very complex. The indictment decision had been limited in scope because it had preceded the debates, which formed the crux of the proceedings. As to the factual information included in the indictment and its usefulness in understanding the guilty verdict against the applicant, it had of necessity left a number of areas of uncertainty: as the murder had not been positively established, the explanation for the victim’s disappearance had inevitably been based on hypothesis. As to the questions, they had been all the more important since, when deliberating, the judges and jury had not had access to the case file and had based their decision solely on the elements examined during the adversarial proceedings, albeit with the addition, in this case, of the decision indicting the accused. Furthermore, there had been a great deal at stake as the applicant had been sentenced to twenty years’ imprisonment after earlier proceedings had been discontinued or had led to his acquittal. The subsidiary questions had been found to be devoid of purpose, so that only two questions had been put to the jury: the first was whether the applicant had intentionally murdered the victim and the second, if so, whether the murder had been premeditated. Considering the considerable complexity of the case, those questions had been succinctly worded and made no allusion to the specific circumstances. They had not referred to ‘any precise and specific circumstances that could have enabled the applicant to understand why he [had been] found guilty’. It was true that the public prosecutor had appealed, thus enabling the first-instance judgment to be reviewed. However, besides the fact that this judgment had not been accompanied by reasons either, the appeal had resulted in the formation of a new assize-court bench, made up of different judges, whose task was to re-examine the case file and reassess the factual and legal issues in the course of fresh hearings. It followed that the applicant had been unable to retrieve any pertinent information from the first-instance proceedings as to why he had been convicted on appeal by a different jury and different judges, especially since he had initially been acquitted. Thus, the applicant had not had sufficient guarantees to enable him to understand why he had been found guilty.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.
In Legillon, the applicant had been the sole defendant and the offences of which he was accused, despite their seriousness, had not been complex. The indictment decision that had preceded the hearings had been particularly detailed and the charges had then been debated for three days. The reclassification of the offences after the order committing the applicant for trial and before the questions to the jury emphasised that the latter’s decision was not to be confused with the indictment decision. This development, arising out of the debate, had necessarily allowed the accused to understand part of the jury’s reasoning. Twelve questions had been asked, forming a clear whole which left no ambiguity as to the charges against the applicant. Furthermore, specific questions concerning the aggravating circumstances of the father-daughter relationship and the age of the victims had enabled the jury to weigh precisely the applicant’s individual criminal responsibility. In sum, the applicant had been given sufficient guarantees to enable him to understand the guilty verdict against him.
Lastly, a reform had been put in place since the time of the events, following the enactment of legislation in August 2011 introducing a new provision (Article 365-1) into the Code of Criminal Procedure. This provided for the reasons for the assize court judgment to be set out in a ‘statement of reasons form’ appended to the list of questions. In the event of a conviction, the reasons had to be based on those facts examined in the course of the deliberations which had convinced the assize court in respect of each of the charges brought against the accused. This reform thus appeared, on the face of it, to significantly strengthen the guarantees against arbitrariness and to help the accused understand the court’s decision, as required by Article 6-1 of the Convention.
Conclusion: no violation (unanimously).

Citations:

53406/10 – CLIN, [2013] ECHR 277

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights, Criminal Practice

Updated: 14 November 2022; Ref: scu.472441

Eweida And Others v The United Kingdom: ECHR 15 Jan 2013

ECHR Article 9-1
Manifest religion or belief
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their religious beliefs: violation; no violations
Article 14
Discrimination
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their religious beliefs: violation; no violations
Facts – All four applicants were practising Christians who complained that domestic law had failed adequately to protect their right to manifest their religious beliefs. The first applicant, Ms Eweida, a British Airways employee, and the second applicant, Ms Chaplin, a geriatrics nurse, complained that their employers had placed restrictions on their visibly wearing Christian crosses around their necks while at work. The third applicant, Ms Ladele, a Registrar of Births, Deaths and Marriages; and the fourth applicant, Mr McFarlane, a counsellor with a confidential sex therapy and relationship counselling service, complained that they had been dismissed for refusing to carry out certain of their duties which they considered would condone homosexuality, a practice they felt was incompatible with their religious beliefs.
Law – Article 9 alone and/or in conjunction with Article 14: There is case-law of the Court and Commission which indicates that, if a person is able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there is no interference with the right under Article 9 – 1 and the limitation does not therefore require to be justified under Article 9 – 2. However, given the importance in a democratic society of freedom of religion, the Court considered that where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.
Where, as in the case of the first and fourth applicants, the acts complained of were carried out by private companies and were not therefore directly attributable to the respondent State, the Court must consider the issues in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction.
As regards the applicable principles under Article 14 of the Convention, while generally for an issue to arise there must be a difference in the treatment of persons in analogous, or relevantly similar, situations, the right not to be discriminated against is also violated when States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different. Such actions are discriminatory if they have no objective and reasonable justification; in other words, if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
(a) The first applicant – The Court was satisfied that the first applicant’s insistence on wearing a cross visible at work was a manifestation of her religious belief, and that the refusal by British Airways between September 2006 and February 2007 to allow her to remain in her post while visibly wearing a cross amounted to interference with her right to manifest her religion. Since the interference was not directly attributable to the State, the Court examined whether the State had complied with the positive obligation under Article 9.
The Court did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.
The aim of the British Airways uniform code, namely to communicate a certain image of the company and to promote recognition of its brand and staff, was legitimate. However, the domestic courts had accorded this aim too much weight. The first applicant’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other previously authorised items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image.
Moreover, the fact that the company was later able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrated that the earlier prohibition had not been of crucial importance.
Therefore, as there was no evidence of any real encroachment on the interests of others, the domestic authorities had failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9. No separate examination of her complaint under Article 14 in conjunction with Article 9 was necessary.
Conclusion: violation in respect of the first applicant (five votes to two).
(b) The second applicant – The Court was satisfied that the second applicant’s determination to wear a cross at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion.
The restriction in question had a legitimate aim, which was to protect the health and safety of nurses and patients. The evidence was that the second applicant’s managers considered there was a risk that a disturbed patient might seize and pull the chain with the risk of injury, or that the cross might swing forward, and could, for example, come into contact with an open wound. The reason for the restriction in this situation was therefore inherently of greater magnitude than in the case of the first applicant. There was also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited. The second applicant had been offered the possibility of wearing a cross in the form of a brooch attached to her uniform, or tucked under a high-necked top worn under her tunic, but she had not considered this would be sufficient to comply with her religious convictions.
This was an area where the domestic authorities had to be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no direct evidence. It followed that the Court was unable to conclude that the measures in question were disproportionate, and that the interference with the second applicant’s freedom to manifest her religion had been necessary in a democratic society. There had therefore been no violation of Article 9 alone or in conjunction with Article 14.
Conclusion: no violation in respect of the second applicant (unanimously).
(c) The third applicant – It was clear that the third applicant’s objection to participating in the creation of same-sex civil partnerships was directly motivated by her religious beliefs. The events in question therefore fell within the ambit of Article 9 and Article 14 was applicable. The relevant comparator in this case was a registrar with no religious objection to same-sex unions. The Court accepted that the local authority’s requirement that all registrars of births, marriages and deaths be designated also as civil-partnership registrars had had a particularly detrimental impact on her because of her religious beliefs. The requirement pursued the legitimate aim of protecting equal opportunities for those of different sexual orientation. In considering the proportionality of the measures, it was notable that the consequences for the third applicant were serious: she considered that she had no choice but to face disciplinary action rather than be designated a civil-partnership registrar and, ultimately, she lost her job. Furthermore, it could not be said that when she entered into her contract of employment she had specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement had been introduced by her employer at a later date.
On the other hand, however, the local authority’s policy aimed to secure the rights of others which were also protected under the Convention and the Court generally allowed the national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights. In all the circumstances, the Court did not consider that either the local-authority employer which had brought the disciplinary proceedings or the domestic courts which had rejected the third applicant’s discrimination claim, had exceeded the margin of appreciation available to them. There had therefore been no violation of Article 14 in conjunction with Article 9.
Conclusion: no violation in respect of the third applicant (five votes to two).
(d) The fourth applicant – While employed by a private company with a policy of requiring employees to provide services equally to heterosexual and homosexual couples, the fourth applicant had refused to commit himself to providing psycho-sexual counselling to same-sex couples. As a result, disciplinary proceedings had been brought against him.
The Court accepted that the fourth applicant’s objection was directly motivated by his orthodox Christian beliefs about marriage and sexual relationships, and held that his refusal to undertake to counsel homosexual couples constituted a manifestation of his religion and belief. The State therefore had a positive obligation under Article 9 to secure his rights.
In deciding whether the positive obligation was met by achieving an appropriate balance between the competing interests, the Court took into account that the loss of his job was a severe sanction with grave consequences for the fourth applicant. On the other hand, he had voluntarily enrolled on his employer’s post-graduate training programme in psycho-sexual counselling, knowing that his employer operated an equal opportunities policy and that filtering of clients on the ground of sexual orientation would not be possible.
While an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knew would have an impact on his freedom to manifest his religious belief was not determinative of the question whether or not there has been an interference with Article 9 rights, this was a matter to be weighed in the balance when assessing whether a fair balance was struck.
However, the most important factor to be taken into account was that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities had therefore benefited from a wide margin of appreciation in deciding where to strike the balance between the fourth applicant’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court did not consider that that margin had been exceeded. There had therefore been no violation of Article 9 alone or in conjunction with Article 14.
Conclusion: no violation in respect of the fourth applicant (unanimously).
Article 41: EUR 2,000 to the first applicant in respect of non-pecuniary damage.
‘Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.’

Citations:

48420/10, 59842/10 – Legal Summary, [2013] ECHR 285, 36516/10, 51671/10

Links:

Bailii

Statutes:

European Convention on Human Rights 9-1 14

Jurisdiction:

Human Rights

Citing:

At EAT – Eweida v British Airways Plc EAT 20-Nov-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Christian who objected to BA’s policy of requiring jewellery to be worn concealed by the uniform. There were exceptions for those whose religions . .
At CA – Eweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
Statement of Facts – Eweida And Chaplin v The United Kingdom ECHR 12-Apr-2011
Statement of Facts and questions to the parties . .

Cited by:

Legal Summary – 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 – Harron v Dorset Police EAT 12-Jan-2016
EAT DISABILITY DISCRIMINATION
RELIGION OR BELIEF DISCRIMINATION
The Claimant had a belief (which the Employment Tribunal thought genuine) that public service was improperly wasteful of money. He . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination

Updated: 14 November 2022; Ref: scu.472438

Ibrahim Gurkan v Turkey: ECHR 3 Jul 2012

Citations:

10987/10 (Judgment (Merits and Just Satisfaction)), [2012] ECHR 1367

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Ibrahim Gurkan v Turkey (CLIN) ECHR 3-Jul-2012
ECHR Article 6
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Participation of serving military officer in military criminal court: violation
Facts – . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 November 2022; Ref: scu.462101

Karabet And Others v Ukraine: ECHR 17 Jan 2013

ECHR Article 3
Torture
Effective investigation
Large-scale violence against prisoners to punish them for peaceful hunger strike and absence of effective investigation: violations
Facts – In January 2007 the applicants, who were all serving prison sentences, took part in a hunger strike with other prisoners to protest about their conditions of detention. A week later the prison authorities conducted a security operation using officers and special forces. Immediately after the search, a group of prisoners whom the authorities considered to be the organisers of the hunger strike, including the applicants, were transferred to other detention facilities (SIZOs). The official report on the operation noted that two of the applicants were subjected to physical measures but all the applicants allege that, during and/or following the operation, they were submitted to ill-treatment. Following the operation, relatives of the applicants complained to various State authorities about the alleged ill-treatment and arbitrary transfer of the prisoners. However, the prosecutor refused to institute criminal proceedings against the prison administration or other authorities involved. The investigation was reopened and subsequently closed on a number of occasions, without any further action being taken.
Law – Article 3 (procedural aspect): Having regard to the magnitude of the events complained of and the fact that they unfolded under the control of the authorities and with their full knowledge, the applicants had an arguable claim that they had been ill-treated and that the State officials were under an obligation to carry out an effective investigation into the matter. Whenever a number of detainees were injured as a consequence of a special forces operation in a prison, the State authorities were under a positive obligation under Article 3 to conduct a medical examination of the inmates in a prompt and comprehensive manner.
The status of the prosecutor under domestic law, his proximity to prison officials with whom he supervised the relevant prisons on a daily basis, and his integration into the prison system did not offer adequate safeguards such as to ensure an independent and impartial review of the prisoners’ allegations of ill-treatment on the part of prison officials. Furthermore, on many occasions the applicants’ complaints were dismissed by Prison Department officials who had been directly involved in the events complained of. In sum, there had been no independent investigation into the applicants’ allegations of ill-treatment.
Although medical examinations and the questioning of the supposed victims and the alleged perpetrators had been commenced within a few days, the examinations were incomplete and superficial, the victims had been subjected to intimidation and the alleged perpetrators’ denial of any wrongdoing had been taken at face value. Far from constituting a prompt and serious attempt to find out what had happened, the measures taken amounted to a hasty search for any reasons to discontinue the investigation. Further, following several remittals for additional investigations, the authorities had acknowledged almost five years later that the investigation was incomplete. They had thus failed to comply with the requirement of promptness. Nor, in the absence of evidence that the decisions taken in respect of the applicants’ allegations had been duly served on them, had their right to participate effectively in the investigation been ensured.
In these circumstances, the investigation into the applicants’ allegations of ill-treatment was not thorough or independent, had failed to comply with the requirement of promptness and lacked public scrutiny.
Conclusion: violation (unanimously).
Article 3 (substantive aspect): The Court found on the basis of the materials before it that the operation by the security forces had been prompted by the prisoners’ mass hunger strike in protest at the conditions of detention and was not a general search or preventive measure. The applicants’ submission that the officers concerned were wearing masks was credible in view of the involvement of a special forces unit equipped and trained for antiterrorist operations. While before the impugned operation almost all the prisoners in the jail had united in expressing quite specific complaints against the administration, not a single complaint was recorded after the operation took place. Such a drastic change, in a matter of hours, from explicitly manifested unanimous dissent to complete acceptance could only be explained by indiscriminate brutality towards the prisoners having taken place. Lastly, the applicants had not been given any chance to prepare for their transfers to the SIZOs following the operation: they had not been allowed to collect their personal belongings or even to dress appropriately for the weather conditions. Such a course of events was conceivable against a background of violence and intimidation. In the light of all the foregoing inferences and the Government’s silence on the applicants’ factual submissions, the Court considered it established to the requisite standard of proof that the applicants had been subjected to the treatment complained of.
It was a commonly accepted fact that the protests by the prisoners had been confined to peaceful refusals to eat prison food, without a single violent incident being reported. They had demonstrated a willingness to cooperate with prison department officials. Moreover, the prison was under a minimum security level because all the inmates were serving a first sentence in respect of minor or medium-severity criminal offences. Nevertheless, the operation had taken place following prior preparations, with the involvement of specially trained personnel. The officers involved outnumbered the prisoners by more than three to one. The prisoners had not received the slightest warning of what was about to happen. As regards the only two instances where the use of force had been acknowledged by the domestic authorities, no attempt had been made by the officials concerned to show that it had been necessary. Instead, all the reports contained identical formalistic wording and referred to unspecified physical resistance by the prisoners to the officers conducting the search. Furthermore, all the prisoners in question had been beaten on the buttocks, an action that appeared to be demeaning and retaliatory, rather than aimed at overcoming physical resistance. While it was impossible for the Court to establish the seriousness of all the bodily injuries and the level of the shock, distress and humiliation suffered by every single applicant, there was no doubt that the authorities’ unexpected and brutal action was grossly disproportionate and gratuitous, taken with the aim of crushing the protest movement, punishing the prisoners for their peaceful hunger strike and nipping in the bud any intention of their raising complaints. It must have caused severe pain and suffering and, even though it had not apparently resulted in any long-term damage to their health, could only be described as torture.
Conclusion: violation (unanimously).
The Court also found a violation of Article 1 of Protocol No. 1 on account of a failure by the prison administration to return the applicants’ personal belongings.
Article 41: EUR 25,000 each in respect of non-pecuniary damage.

Citations:

38906/07 – Legal Summary, [2013] ECHR 284

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Prisons

Updated: 14 November 2022; Ref: scu.472439

Secretary of State for the Home Department v AU: Admn 20 Jan 2009

The court upheld a 16-hour curfew imposed under a control order made under the 2005 Act.

Judges:

Mitting J

Citations:

[2009] EWHC 49 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 14 November 2022; Ref: scu.280055

RA (Sri Lanka) v Secretary of State for the Home Department: CA 6 Nov 2008

The appellant challenged rejection of her asylum application made on human rights grounds. Medical evidence said that ‘There was a body of evidence before the senior immigration judge on the subject of the appellant’s mental health. It is sufficient to refer to a report by Dr David Bell, a consultant psychiatrist, who was in agreement with earlier diagnoses and gave a full assessment of the appellant’s condition. Dr Bell said that the appellant was suffering from severe depressive disorder, with typical symptoms of objective features of depression, pervasive apathy, pervasive depressed mood, very poor appetite, guilt and self-blame, history of suicide attempts, disturbed sleep and morbid existential preoccupations. There were also typical symptoms of post-traumatic stress disorder, with a typical pattern of intrusive thought, noise sensitivity, flash-back phenomena, hallucinatory experiences, nightmares, avoidance of stimuli that might trigger anxiety attacks, and paranoid ideation.’
Held: The appeal failed. Richards LJ looked at the requirements under Article 3: ‘The senior immigration judge was also right to stress the particularly high threshold that has to be crossed for a claim of this nature to succeed under article 3.’

Judges:

Rix LJ, Richards LJ, Lawrence Collins LJ

Citations:

[2008] EWCA Civ 1210

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – McKinnon, Regina (On the Application of) v Secretary Of State for Home Affairs Admn 31-Jul-2009
Assurances for Extradition
Extradition of the defendant was sought to the US to face allegations of hacking into defence computers there. He said this would infringe his article 3 rights, saying that he suffered Autism Spectrum Disorder.
Held: The application failed. US . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 14 November 2022; Ref: scu.277565

Adlard and Others, Regina (on the Application Of) v Secretary of State for Transport, Local Government and Regions and others: CA 24 Apr 2002

It was argued that the Secretary of State should have called in a planning application so as to avoid the risk of the local planning authority acting incompatibly with article 6.
Held: The court considered the obligations of the Secretary of State: ‘The Secretary of State’s obligation under section 6 of the Human Rights Act 1998 is not himself to act incompatibly with a Convention right; he is not obliged to ensure that other public authorities themselves act compatibly.’

Judges:

Laws, Arden LJJ

Citations:

[2002] 1 WLR 2515, [2002] EWCA Civ 614

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Adlard, Regina (on the Application of) v Secretary of State for the Environment, Transport and the Regions and others Admn 17-Jan-2002
The court dismissed a claim for judicial review of the refusal by the Secretary of State to call in, and establish a public inquiry to consider, certain applications for planning permission and listed building and conservation area consents which . .
See Also – Adlard, Regina (on the Application of) v Secretary of State for the Environment, Transport and the Regions and others Admn 17-Jan-2002
The court dismissed a claim for judicial review of the refusal by the Secretary of State to call in, and establish a public inquiry to consider, certain applications for planning permission and listed building and conservation area consents which . .

Cited by:

Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Planning, Human Rights

Updated: 14 November 2022; Ref: scu.217008

N (Kenya) v The Secretary of State for the Home Department: CA 5 Aug 2004

The appellant a foreign national, had been convicted of very serious sex offences, and as his sentence came to an end was ordered to be deported. He appealed saying this infringed his right to a family life.
Held: The court had to balance the public revulsion at his crimes with the need for compassion. The adjudicator exercised an original discretion and had to take into account all individual factors, and give appropriate weight to the Home Secretary’s considered opinions. Even so, the adjudicator was in no better position to the critical public interest than was the court. Given the need to allow for the public good and interest, it was right for the adjudicator to include in his exercise the nature of the offence. The Article 8 issues and deportation issues merged. Proper weight must be given to the Secretary of State’s policy on deportation, and in particular to the fact that she has taken the view, in the public interest that crimes of violence such as that committed by the appellant are sufficiently serious to warrant deportation.

Judges:

Lord Justice May Lord Justice Judge Lord Justice Sedlay

Citations:

[2004] EWCA Civ 1094, Times 13-Sep-2004, [2004] INLR 612

Links:

Bailii

Statutes:

European Convention on Human Rights 8, Immigration Act 1971 3(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Secretary of State for the Home Department v N (Kenya) IAT 3-Feb-2004
. .

Cited by:

Cited – OH (Serbia) v Secretary of State for the Home Department CA 30-Apr-2008
Wilson LJ considered N (Kenya) and said: ‘Primary responsibility for the public interest, whose view of it is likely to be wide and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal . .
Cited – OP (Jamaica) v Secretary of State for the Home Department CA 1-May-2008
The applicant had been granted leave to stay. He was convicted of manslaughter and ordered to be deported on release. The Home Secretary appealed an overturning of the AIT decision in his favour, and the applicant in turn now appealed saying there . .
Cited – Secretary of State for The Home Department v HK (Turkey) CA 27-May-2010
The SS appealed against the successful appeal by the respondent against a deportation order. He had come to England in 1994, been granted indefinite leave to stay, and made a family here. In 2007 he was convicted of grievous bodily harm.
Held: . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Criminal Sentencing

Updated: 14 November 2022; Ref: scu.199883

AB X and Y, Regina (on the Application of) v East Sussex County Council and Another: Admn 18 Feb 2003

The physical and psychological integrity which the state may in principle be under an obligation to take positive steps to protect under Article 8 included two particularly important concepts. The first was human dignity, the second was the right of the disabled to participate in the life of the community and to have access to essential economic and social activities and to an appropriate range of recreational and cultural activities.

Judges:

Munby J

Citations:

[2003] EWHC 167 (Admin)

Links:

Bailii

Statutes:

National Assistance Act 1948 29, Chronically Sick and Disabled Persons Act 1970 2, National Health Service and Community Care Act 1990 47, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Walker v Northumberland County Council QBD 16-Nov-1994
The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did . .

Cited by:

Cited – Spink, Regina (on the Application Of) v Wandsworth Borough Council Admn 20-Oct-2004
Parents requested the local authority to make provision for their severely disabled children. The local authority wished when deciding whether to provide adaptations of the house to make allowance for the parents’ financial resources.
Held: . .
Cited – Spink, Regina (on the Application Of) v Wandsworth Borough Council Admn 20-Oct-2004
Parents requested the local authority to make provision for their severely disabled children. The local authority wished when deciding whether to provide adaptations of the house to make allowance for the parents’ financial resources.
Held: . .
Cited – K v The School and the Special Needs and Disability Tribunal CA 6-Mar-2007
The child was subject to the school eventually declined to clean and change him. The mother claimed that the school was discriminating.
Held: The mother had understated the frequency of the bowel accidents. The school was not properly equipped . .
Lists of cited by and citing cases may be incomplete.

Local Government, Benefits, Human Rights

Updated: 14 November 2022; Ref: scu.181948

Whitmey, Regina (on the Application of) v the Commons Commissioners: CA 21 Jul 2004

The applicant sought to leave to appeal against refusal of his challenge to the registration of land as a green.
Held: The 1965 Act did not limit the registration of greens to those which were registered by 3 January 1970. The Commons Commissioners have no jurisdiction in a dispute arising under section 13. The 1969 Regulations clearly required anyone adversely affect to be heard, and they were Human Rights compliant. The registration authority made decisions which did affect landowners, but it had power to hold an inquiry. Leave to appeal refused.

Citations:

[2004] EWCA Civ 951, Times 10-Aug-2004, [2005] 1 P and CR 24, [2004] 45 EG 126, [2005] 1 QB 282, [2004] 4 PLR 68, [2004] 3 WLR 1342, [2005] QB 282, [2004] 32 EGCS 63, [2004] 3 EGLR 1

Links:

Bailii

Statutes:

Commons Registration Act 1965 13, Commons Registration (New Land) Regulations 1969 6

Jurisdiction:

England and Wales

Citing:

Cited – Re Dance’s Way CA 1962
The chief land registrar should not decide the construction of an instrument, under the power conferred on him by rule 298(1) of the Land Registration Rules, where there was a dispute of the fact as to the surrounding circumstances, but he should . .
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – In re West Anstey Common 1985
Though an enquiry as to whether land is a green can only be initiated by an application for the addition of the claimed green to the register by some individual, the enquiry should not be seen as civil litigation between the applicant and any . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – Chassagnou and Others v France ECHR 29-Apr-1999
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically . .
Cited – 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. . .
Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 14 November 2022; Ref: scu.199350

Adlard, Regina (on the Application of) v Secretary of State for the Environment, Transport and the Regions and others: Admn 17 Jan 2002

The court dismissed a claim for judicial review of the refusal by the Secretary of State to call in, and establish a public inquiry to consider, certain applications for planning permission and listed building and conservation area consents which the local planning authority (the London Borough of Hammersmith and Fulham) had decided in principle to grant.

Judges:

Collins J

Citations:

[2002] EWHC 7 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Adlard and Others, Regina (on the Application Of) v Secretary of State for Transport, Local Government and Regions and others CA 24-Apr-2002
It was argued that the Secretary of State should have called in a planning application so as to avoid the risk of the local planning authority acting incompatibly with article 6.
Held: The court considered the obligations of the Secretary of . .
See Also – Adlard and Others, Regina (on the Application Of) v Secretary of State for Transport, Local Government and Regions and others CA 24-Apr-2002
It was argued that the Secretary of State should have called in a planning application so as to avoid the risk of the local planning authority acting incompatibly with article 6.
Held: The court considered the obligations of the Secretary of . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Planning, Human Rights

Updated: 14 November 2022; Ref: scu.168020

Zabolotnyi v The Mateszalka District Court, Hungary: SC 30 Apr 2021

Whether expected treatment in a Hungarian prison would be inhuman and degrading. Admission of evidence doubting state re-assurances.

Judges:

Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt, Lord Burrows, Lord Stephens

Citations:

[2021] UKSC 14

Links:

Bailii, Bailii Press Summary, Bailii Issues and Facts

Statutes:

European Convention on Human Rights 3, Extradition Act 2003 27

Jurisdiction:

England and Wales

Extradition, Human Rights

Updated: 14 November 2022; Ref: scu.662307

Bucur And Toma v Romania: ECHR 8 Jan 2013

ECHR Article 10-1
Freedom to impart information
Criminal conviction for making public irregular telephone tapping procedures: violation
Facts – The first applicant worked in the telephone communications surveillance and recording department of a military unit of the Romanian Intelligence Service (RIS). In the course of his work he came across a number of irregularities. In addition, the telephones of a large number of journalists, politicians and businessmen were tapped, especially after some high-profile news stories received wide media coverage. The applicant affirmed that he reported the irregularities to his colleagues and the head of department, who allegedly reprimanded him. When the people he spoke to showed no further interest in the matter, the applicant contacted an MP who was a member of the RIS parliamentary supervisory commission. The MP told him that the best way to let people know about the irregularities he had discovered was to hold a press conference. In his opinion telling the parliamentary commission about the irregularities would serve no purpose in view of the ties between the chairman of the commission and the director of the RIS. On 13 May 1996 the applicant held a press conference which made headline news nationally and internationally. He justified his conduct by the desire to see the laws of his country – and in particular the Constitution – respected. In July 1996 criminal proceedings were brought against him. Amongst other things, he was accused of gathering and imparting secret information in the course of his duty. In 1998 he was given a two-year suspended prison sentence.
One of the tapes the applicant had made public contained a recording of a telephone conversation between the third applicant, the minor daughter of the second applicant, and her mother on the telephone at the home of the second and third applicants.
Law – Article 10: The applicant’s criminal conviction had interfered with his right to freedom of expression, with the legitimate aim of preventing and punishing offences that threatened national security. Concerns about the foreseeability of the legal basis for the conviction did not need to be examined in so far as the measure was, in any event, not necessary in a democratic society.
(a) Whether or not the applicant had other means of imparting the information – No official procedure existed. All the applicant could do was inform his superiors of his concerns. But the irregularities he had discovered concerned them directly. It was therefore unlikely that any internal complaints the applicant made would have led to an investigation and put a stop to the unlawful practices concerned. As regards a complaint to the parliamentary commission responsible for supervising the RIS, the applicant had contacted an MP who was a member of the commission, who had advised him that such a complaint would serve no useful purpose. The Court was not convinced, therefore, that a formal complaint to this commission would have been an effective means of tackling the irregularities. It was worth noting that Romania had passed special laws to protect whistleblowers in the public service. However, these new laws, which were all the more praiseworthy as very few other States had introduced them, had been passed well after the activities denounced by the applicant, and therefore did not apply to him. Consequently, divulging the information directly to the public had been justifiable.
(b) The public interest value of the information divulged – The interception of telephone communications took on a particular importance in a society which had been accustomed under the communist regime to a policy of close surveillance by the secret services. Furthermore, civil society was directly affected by the information concerned, as anyone’s telephone calls might be intercepted. The information the applicant had disclosed related to abuses committed by high-ranking officials and affected the democratic foundations of the State. It concerned very important issues for the political debate in a democratic society, in which public opinion had a legitimate interest. The domestic courts did not take this argument of the applicant into account, however.
(c) The accuracy of the information made public – The applicant had spotted a number of irregularities. All the evidence seemed to support his conviction that there were no signs of any threat to national security that could justify the interception of the telephone calls, and indeed that no authorisation for the phone tapping had been given by the public prosecutor. In addition, the courts had refused to examine the merits of the authorisations produced by the RIS for the interception of the phone calls. The domestic courts had thus not attempted to examine every aspect of the case, but had simply acknowledged the existence of the requisite authorisations. Yet the applicant’s defence comprised two arguments: firstly that the requisite authorisations had not been obtained, and secondly that there was no evidence of any threat to national security that could possibly have justified the alleged interception of the telephone conversations of numerous politicians, journalists and members of the public. What is more, the Government had failed to explain why the information divulged by the applicant was classified ‘top secret’; instead, they had refused to produce the full criminal case file, which included the requests from the RIS and the authorisations of the public prosecutor. In such conditions the Court could only trust the copies of these documents submitted by the applicants concerning the interception of the telephone conversations of the second applicant, Mr Toma. However, these documents showed that the RIS had given no reasons for requesting the authorisation and the public prosecutor had given no reasons for granting it. The first applicant had accordingly had reasonable grounds to believe that the information he divulged was true.
(d) The damage done to the RIS – The general interest in the disclosure of information revealing illegal activities within the RIS was so important in a democratic society that it prevailed over the interest in maintaining public confidence in that institution.
(e) The good faith of the first applicant – There was no reason to believe that the applicant was driven by any motive other than the desire to make a public institution abide by the laws of Romania and in particular the Constitution. This was supported by the fact that he had not chosen to go to the press directly, in order to reach the broadest possible audience, but had first turned to a member of the parliamentary commission responsible for supervising the RIS.
Consequently, the interference with the first applicant’s freedom of expression, and in particular with his right to impart information, had not been necessary in a democratic society.
Conclusion: violation in respect of the first applicant (unanimously).
The Court also found a violation of Article 6 in respect of the first applicant and a violation of Article 8 and of Article 13 combined with Article 8 in respect of the second and third applicants.
Article 41: The applicants were each awarded a sum ranging from EUR 7,800 to EUR 20,000 in respect of non-pecuniary damage; the first applicant’s claim in respect of pecuniary damage was rejected.

Citations:

40238/02 – Legal Summary, [2013] ECHR 291

Links:

Bailii

Statutes:

European Convention on Human Rights 10-1

Human Rights, Media, Crime

Updated: 14 November 2022; Ref: scu.472435

Claes v Belgium: ECHR 10 Jan 2013

ECHR Article 3
Degrading treatment
Structural problems resulting in prisoner suffering from mental disorders being held for more than fifteen years in prison psychiatric wing with no hope of change or appropriate medical care: violation
Facts – In February 1978 a Criminal Court judgment ruled that the applicant, who had raped his underage sisters, was not criminally responsible for his actions. After committing a series of sexual assaults the applicant, who has an intellectual disability, was held continuously in the psychiatric wing of a prison from 1994 onwards, with the exception of a single period of twenty-two months outside prison following a decision of the Mental Health Board.
Law – Article 3: Apart from access to the prison psychiatrist or psychologist, no specific treatment or medical supervision had ever been prescribed for the applicant. Starting in 2002, he had been able to participate in the activities offered by an association and in September 2005 the prison’s psychosocial unit, backed up by the Mental Health Board, had observed an improvement in his condition and had raised the possibility of his situation being reviewed. However, he had remained in the psychiatric wing until 2009 since no facility had been found that was prepared to accept him. This long-lasting situation, which had continued since 1994, had clearly had a detrimental effect on the applicant’s psychological state. He had suffered distress owing to the lack of any prospect of having his situation reviewed; in addition, he had not come any closer to understanding his problems and required individual and intense supervision.
The Court did not underestimate the efforts made within the prison to improve the support provided to persons in compulsory confinement. Nevertheless, the applicant’s allegations were corroborated by unanimous findings at both national and international level with regard to the unsuitability of psychiatric wings for the detention of persons with mental health problems because of widespread staff shortages, the poor standard and lack of continuity of care, the dilapidated state of premises, overcrowding and a structural shortage of places in psychiatric facilities outside prison. Likewise, the Court did not underestimate the steps taken by the authorities on a regular basis from 1998 onwards to find the applicant a place in an external facility geared to dealing with his disorder. However, the applicant’s situation stemmed in reality from a structural problem. The support provided to persons detained in prison psychiatric wings was inadequate and placing them in facilities outside prison often proved impossible either because of the shortage of places in psychiatric hospitals or because the relevant legislation did not allow the mental health authorities to order their placement in external facilities. Accordingly, the national authorities had not provided the appropriate treatment for the applicant’s condition in order to prevent a situation contrary to Article 3 from arising in his case. His continued detention in the psychiatric wing without the appropriate medical care and over a significant period of time, without any realistic prospect of change, therefore constituted particularly acute hardship causing distress which went beyond the suffering inevitably associated with detention. Whatever obstacles may have been created by the applicant’s own behaviour, they did not dispense the State from its obligations in his regard by virtue of the position of inferiority and powerlessness typical of patients confined in psychiatric hospitals and even more so of those detained in a prison setting. Hence, the applicant had been subjected to degrading treatment on account of his continued detention over a significant period under the conditions referred to above.
Conclusion: violation (unanimously).
The Court further found a violation of Article 5 ss 1 (e) since the applicant’s confinement in prison in breach of Article 3 had also severed the requisite link between the aim of detention and the conditions in which it was effected. It also found a violation of Article 5 ss 4 with regard to the review of lawfulness that could be conducted by the Mental Health Board.
Article 41: EUR 16,000 in respect of non-pecuniary damage. The applicant’s transfer to an institution geared to his needs constituted the most appropriate form of redress.

Citations:

43418/09 – Legal Summary, [2013] ECHR 286

Links:

Bailii

Statutes:

European Convention on Human Rights 3

Human Rights, Health

Updated: 14 November 2022; Ref: scu.472437

AK and L v Croatia: ECHR 8 Jan 2013

ECHR Article 8-1
Respect for family life
Authorities’ failure to ensure legal representation of mentally disabled applicant in proceedings divesting her of parental rights and to inform her of adoption proceedings in respect of her son: violation
Facts – The first applicant is the mother of the second applicant L., who was born in 2008. Soon after his birth, L. was placed, with his mother’s consent, in a foster family in another town, on the grounds that his mother had no income and lived in a dilapidated property without heating. In May 2010 the first applicant was divested of her parental rights in respect of L., on the grounds that she had a mild mental disability and was not able to provide proper care to him. She applied for legal aid to lodge an appeal, but was only assigned a lawyer after the time-limit for appealing had expired. In October 2010 her lawyer applied to a municipal court for an order restoring the first applicant’s parental rights, but the application was dismissed because in the meantime L. had been adopted by third parties. The first applicant was not a party to the adoption proceedings and was not informed of them, as her consent was not needed because she had been divested of her parental rights.
Law – Article 8
(a) Standing of the first applicant to act on behalf of L. – In respect of any issues concerning the facts after the adoption became final, L.’s only representatives under national law were his adoptive parents. However, all issues concerning the severing of his ties with his biological mother before his adoption should be examined by the Court. It was in principle in a child’s interest to preserve its ties with its biological parents, save where weighty reasons existed to justify severing them. In the present proceedings, owing to his tender age, L. was not in a position to represent his interests. The first applicant was the only person able to argue on his behalf that severing the ties between them had also affected L.’s right to respect for his family life. The Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court had to be dismissed.
(b) Applicability – Although the child had been placed in a foster family soon after birth, the first applicant had continued to visit him. In the Court’s view there existed a bond between the first applicant and her son that amounted to ‘family life’. Article 8 was therefore applicable.
(c) Merits – The measures taken by the State amounted to interference with the applicants’ right to respect for their family life. The interference had a basis in domestic law and had been aimed at protecting the best interests of the child. The Court was not called upon to determine whether the adoption of the first applicant’s child was justified as such. Nor did it have to rule on the compliance with Article 8 of legislation which did not allow a parent divested of parental rights to participate in the adoption proceedings. Instead, the Court examined whether sufficient safeguards for the protection of the applicants’ private and family life had been provided at every stage of the process. The domestic legislation provided adequate safeguards as regards the interests of parents and their children in proceedings. However, despite the legal requirement and the authorities’ findings that the first applicant suffered from a mild mental disability, she had not been represented by a lawyer in the proceedings divesting her of parental rights. Given that she could not properly understand the full legal effect of such proceedings and adequately argue her case and given the importance of such proceedings for her right to respect for her family life, the national authorities should have ensured that the interests of both the first applicant and L. were adequately protected, in particular from the standpoint of preserving ties between them. While the Court could accept that the consent of the first applicant, who had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considered that where, as in Croatia, a national system allowed for parental rights to be restored, it was indispensable that a parent be given an opportunity to exercise that right before the child was put up for adoption. However, by not informing the first applicant about the adoption proceedings the national authorities had deprived her of the opportunity to seek restoration of her parental rights before the ties between her and her son had been finally severed by his adoption. She had thus been prevented from enjoying her right guaranteed by domestic law and had not been sufficiently involved in the decision-making process.
Conclusion: violation (unanimously).
Article 41: EUR 12,500 to the first applicant in respect of non-pecuniary damage.

Citations:

37956/11 – Legal Summary, [2013] ECHR 290

Links:

Bailii

Statutes:

European Convention on Human Rights 8-1

Human Rights, Adoption, Legal Aid

Updated: 14 November 2022; Ref: scu.472432

Agnelet v France: ECHR 10 Jan 2013

Article 6
Criminal proceedings
Article 6-1
Criminal charge
Fair hearing
Assize court judgment containing statement of reasons for jury’s guilty verdict: violation; no violation
[This summary also covers the judgment in the case of Legillon v. France, no. 53406/10, 10 January 2013]
Facts – In Agnelet, the applicant was sentenced in 2007 by the Assize Court to twenty years’ imprisonment for murder. He was the lover and lawyer of the murdered woman. Earlier proceedings against him had been discontinued or had led to an acquittal.
The applicant in Legillon was sentenced by the Assize Court of Appeal to fifteen years’ imprisonment for rape and sexual assault of minors under the age of fifteen within his immediate family.
The applicants complained of the lack of reasons given in the assize court judgments. They lodged appeals with the Court of Cassation, which were dismissed on the grounds that the requirements of Article 6 of the European Convention had been satisfied.
Law – Article 6-1: The absence of reasons in a judgment, owing to the fact that the applicant’s guilt was determined by a lay jury, was not in itself contrary to the Convention. The specific features of the procedure before the assize courts with the participation of a lay jury had to be taken into account. It emerged from the Grand Chamber judgment in Taxquet v. Belgium that it should be clear from the indictment, together with the questions put to the jury, which pieces of evidence and factual circumstances among all those examined in the course of the trial the jurors had ultimately based their answers to the questions on, and that the questions themselves had to be precise and geared to the individual concerned.
In Agnelet, the applicant had been the only defendant and the case had been very complex. The indictment decision had been limited in scope because it had preceded the debates, which formed the crux of the proceedings. As to the factual information included in the indictment and its usefulness in understanding the guilty verdict against the applicant, it had of necessity left a number of areas of uncertainty: as the murder had not been positively established, the explanation for the victim’s disappearance had inevitably been based on hypothesis. As to the questions, they had been all the more important since, when deliberating, the judges and jury had not had access to the case file and had based their decision solely on the elements examined during the adversarial proceedings, albeit with the addition, in this case, of the decision indicting the accused. Furthermore, there had been a great deal at stake as the applicant had been sentenced to twenty years’ imprisonment after earlier proceedings had been discontinued or had led to his acquittal. The subsidiary questions had been found to be devoid of purpose, so that only two questions had been put to the jury: the first was whether the applicant had intentionally murdered the victim and the second, if so, whether the murder had been premeditated. Considering the considerable complexity of the case, those questions had been succinctly worded and made no allusion to the specific circumstances. They had not referred to ‘any precise and specific circumstances that could have enabled the applicant to understand why he [had been] found guilty’. It was true that the public prosecutor had appealed, thus enabling the first-instance judgment to be reviewed. However, besides the fact that this judgment had not been accompanied by reasons either, the appeal had resulted in the formation of a new assize-court bench, made up of different judges, whose task was to re-examine the case file and reassess the factual and legal issues in the course of fresh hearings. It followed that the applicant had been unable to retrieve any pertinent information from the first-instance proceedings as to why he had been convicted on appeal by a different jury and different judges, especially since he had initially been acquitted. Thus, the applicant had not had sufficient guarantees to enable him to understand why he had been found guilty.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.
In Legillon, the applicant had been the sole defendant and the offences of which he was accused, despite their seriousness, had not been complex. The indictment decision that had preceded the hearings had been particularly detailed and the charges had then been debated for three days. The reclassification of the offences after the order committing the applicant for trial and before the questions to the jury emphasised that the latter’s decision was not to be confused with the indictment decision. This development, arising out of the debate, had necessarily allowed the accused to understand part of the jury’s reasoning. Twelve questions had been asked, forming a clear whole which left no ambiguity as to the charges against the applicant. Furthermore, specific questions concerning the aggravating circumstances of the father-daughter relationship and the age of the victims had enabled the jury to weigh precisely the applicant’s individual criminal responsibility. In sum, the applicant had been given sufficient guarantees to enable him to understand the guilty verdict against him.
Lastly, a reform had been put in place since the time of the events, following the enactment of legislation in August 2011 introducing a new provision (Article 365-1) into the Code of Criminal Procedure. This provided for the reasons for the assize court judgment to be set out in a ‘statement of reasons form’ appended to the list of questions. In the event of a conviction, the reasons had to be based on those facts examined in the course of the deliberations which had convinced the assize court in respect of each of the charges brought against the accused. This reform thus appeared, on the face of it, to significantly strengthen the guarantees against arbitrariness and to help the accused understand the court’s decision, as required by Article 6-1 of the Convention.
Conclusion: no violation (unanimously).

Citations:

61198/08 – CLIN, [2013] ECHR 276

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Human Rights, Criminal Practice

Updated: 14 November 2022; Ref: scu.472433

Ashby Donald And Others v France: ECHR 10 Jan 2013

ECHR Article 10-1
Freedom of expression
Conviction of photographers for copyright infringement through publication on the Internet of photographs of fashion show: no violation
ARTICLE 10
Freedom of expression
no violation
Facts – The applicants are fashion photographers. Accredited by the French designers’ federation Federation francaise de la couture for different fashion publications, they were invited by various fashion houses to the women’s winter 2003/2004 collection fashion shows in March 2003. They had not signed any exclusive agreements. Photographs they took at the fashion shows were sent to a company that published them on line, a few hours after the shows, on a specialised Web site offering photos and videos of fashion shows on a free or pay-to-view basis and for sale. The designers’ federation and several fashion houses lodged a complaint with the Central Industrial and Artistic Copyright Infringement Brigade. The applicants were questioned in 2003. They were acquitted by the criminal court in June 2005. The complainants and the public prosecutor appealed. In a judgment of January 2007 the court of appeal set aside the first-instance judgment and found the applicants guilty of copyright infringement. The Court of Cassation rejected their subsequent appeal in February 2008.
Law – Article 10: There had been interference with the applicants’ legally protected right to freedom of expression as they had been convicted of copyright infringement for disseminating or representing intellectual works in breach of the authors’ rights under the Intellectual Property Code as interpreted by the domestic courts. The interference pursued the legitimate aim of protecting the rights of others, namely the authors’ rights of the fashion houses whose creations were featured in the disputed photographs. The photos had been published on the Web site of a company run by the first two applicants, with the aim of selling them or charging a fee to view them. The applicants’ approach had essentially been a commercial one. Although there was no denying the public appeal of fashion in general and designer fashion in particular, it could not be said that the applicants had taken part in a debate on a topic of general interest by simply publishing photographs of fashion shows. The domestic authorities had a particularly wide margin of appreciation in this case considering the aim of the interference and the fact that, as Article 1 of Protocol No. 1 applied to intellectual property, the interference was also aimed at protecting rights safeguarded by the Convention or its Protocols.
The applicants considered that their conviction for copyright infringement was not ‘necessary’ in so far as they had been invited to the fashion shows in question, in their capacity as photographers, to take photographs of the fashions presented with a view to their publication, and the publication of the photographs outside the framework of their accreditation had given rise to no additional risk of copyright infringement because the same pictures had been published at the same time by accredited magazines, and the ‘press commitment’ practice whereby photographers were required to sign exclusive agreements with the magazines that accredited them was no longer really followed. The court of appeal had nevertheless found that the applicants had knowingly disseminated the photographs in issue without the authorisation of the rights holders, that the argument that ‘press commitment’ agreements were unsuitable or no longer standard practice did not absolve them of their liability and that they were accordingly guilty of copyright infringement. The domestic court had therefore not overstepped its margin of appreciation in privileging respect for the fashion designers’ property over the applicants’ right to freedom of expression.
The applicants also contended that the sentences served on them had been disproportionately harsh. They had been sentenced not only to large criminal fines but also to pay substantial damages. They adduced no evidence, however, as to the consequences of these penalties on their financial situation. In any event, the domestic court had fixed these sums following adversarial proceedings the fairness of which was not in dispute, and had given adequate reasons for its decision, explaining the circumstances which it considered warranted such penalties.
In these circumstances and regard being had to the particularly wide margin of appreciation open to the domestic authorities, the nature and gravity of the penalties imposed on the applicants were not such that the Court could find that the interference in issue was disproportionate to the aim pursued.
Conclusion: no violation (unanimously).

Citations:

36769/08 – Legal Summary, [2013] ECHR 287

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights

Updated: 14 November 2022; Ref: scu.472434

Ayliffe And Others v United Kingdom: ECHR 10 Feb 2009

The applicants were all either employees of or volunteers for Greenpeace. They were charged with a number of offences relating to the boarding of a cargo ship. They were acquitted but the trial judge refused to award the applicants their costs in the criminal proceedings. They complained that the refusal to award them their costs was incompatible with Article 6-2 of the Convention. They further complained that since their action in boarding the ship was also a protest, it was protected by Article 10. The application was withdrawn, and the case struck out.

Judges:

Lech Garlicki, P

Citations:

[2009] ECHR 431

Links:

Bailii

Statutes:

European Convention on Human Rights 6-2 10

Citing:

See Also – Ayliffe And Others v United Kingdom ECHR 6-May-2008
The applicants are employees of or volunteers for Greenpeace. They boarded a cargo ship, preventing it continuing its voyage to harbour. They did so because they believed the cargo contained unlicensed animal feed and thus the importation was in . .
At Admin Court – Ayliffe and others v Director of Public Prosecutions Admn 21-Apr-2005
The case concerned actions taken at military bases by way of protest against the Iraq war. Each raised questions arising from the prosecution of the appellants for offences of aggravated trespass. The defendants asserted, among other things, that . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice, Costs

Updated: 14 November 2022; Ref: scu.472102

Othman (Aka Abu Qatada) v Secretary of State for The Home Department: CA 27 Mar 2013

The appellant sought the deportation of the respondent to his home country of Jordan to face trial on terrorism related charges. The respondent said that evidence against him would have been obtained by torture, and challenged re-assurances accepted by the respondent as to the conduct of the trial. He said there was a real risk of a flagrantly unfair trial.
Held: The appeal failed: ‘to succeed in this appeal, the Secretary of State has to show that SIAC erred in law. It is not sufficient to persuade us that we would have reached a different conclusion on the facts and Mr Eadie rightly recognised the difficulty of such an exercise. The Secretary of State accepts that SIAC directed itself properly as to the general legal test to apply. Her case that SIAC nevertheless erred in law is based on a detailed examination of a careful and comprehensive judgment. As we have stated . . criticisms of this kind of a decision by a specialist tribunal are particularly difficult to sustain. For the reasons that we have given, we are satisfied that SIAC did not commit any legal errors.’

Judges:

Lord Dyson MR, Richards, Elias LJJ

Citations:

[2013] EWCA Civ 277

Links:

Bailii

Statutes:

Immigration Act 1971

Jurisdiction:

England and Wales

Citing:

See Also – Omar Othman v The United Kingdom ECHR 26-May-2009
Statement of Facts. The applicant resisted deportation to Jordan to face trial on on terrorism related charges, saying that there was a real risk that the evidence to be presented against him would include evidence obtained by torture. . .
At ECHR – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
SIAC Bail Application – Othman v Secretary of State for The Home Department SIAC 6-Feb-2012
Application for bail. . .
SIAC Baill – Othman v Secretary of State for The Home Department SIAC 28-May-2012
SIAC (Deportation – Bail Application – Refused) The applicant was held in immigration detention pending a proposed deportation to his native Jordan to face retrial on terrorist charges. Having resisted his . .
Admn Reasons – Othman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
At HL – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
Appeal from – Othman (Abu Qatada) v Secretary of State for The Home Department SIAC 12-Nov-2012
The applicant challenged his proposed deportation to Jordan to face perrorism related charges. He said that there was a real risk that the evidence used against him would have been obtained by torture.
Held: His appeal was allowed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Crime

Updated: 14 November 2022; Ref: scu.472067

Valiuliene v Lithuania: ECHR 26 Mar 2013

Citations:

33234/07 – HEJUD, [2013] ECHR 240

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Legal Summary – Valiuliene v Lithuania (LS) ECHR 26-Mar-2013
ECHR Article 3
Degrading treatment
Inhuman treatment
Effective investigation
Investigative and procedural flaws resulting in prosecution of domestic-violence case becoming time-barred: . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 November 2022; Ref: scu.472053

J1 v Secretary of State for The Home Department: CA 27 Mar 2013

The applicant said that his proposed deportation to Ethiopia would infringe his article 3 rights, and in particular whether SIAC was entitled to conclude that assurances given by the Ethiopian Government were a satisfactory safeguard, even though not all the arrangements for monitoring fulfilment of those assurances were in place.

Judges:

Jackson, Elias, Treacy LJJ

Citations:

[2013] EWCA Civ 279

Links:

Bailii

Statutes:

European Convention on Human Rights 83

Jurisdiction:

England and Wales

Citing:

At SIAC – J1 v Secretary of State for The Home Department SIAC 15-Apr-2011
Deportation – Substantive (National Security) – Dismissed . .
Appeal from – J1 v Secretary of State for The Home Department SIAC 11-Jul-2011
Deportation – Substantive (Safety On Return) – Dismissed . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 14 November 2022; Ref: scu.472065

A, Regina (on The Application of) v Lowestoft Magistrates’ Court: Admn 26 Mar 2013

A had pleaded guilty to a charge of being drunk in a public place, while having the charge of a child under the age of 7 years, contrary to section 2(1) of the Licensing Act 1902. The child in question was A’s daughter, to whom I shall refer as B. B was 2 and a half years old. A was an elected councillor and likely to be well known in the local community. The magistrates refused to make an order anonymising the case being not convinced that any damage would flow for the child.
Held: Section 39 of the CYP Act engages important, and competing, principles, namely, on the one hand, the private and family life of a child, and the best interests of that child, and, on the other hand, the freedom of the media to publish, and of the public to receive, information or comment, and the requirements of open justice.

Judges:

Picthford lJ, Kenneth Parker J

Citations:

[2013] EWHC 659 (Admin), [2013] WLR(D) 177, [2014] 1 WLR 1489, [2013] EMLR 20, [2013] Crim LR 763, (2013) 177 JP 377, 177 JP 377

Links:

Bailii, WLRD

Statutes:

Children and Young Persons Act 1933 39, European Convention on Human Rights 8 10

Citing:

Cited – A Child v Cambridge University Hospitals NHS Foundation Trust QBD 4-Mar-2011
The court gave its reasons for making an order preventing identification of a child claimant in professional negligence proceedings.
Held: By virtue of the Human Rights Act 1998, the court, as a public authority, must take account of these . .
Cited – ex parte Godwin CA 1992
An order had been made to include provision that ‘the names and addresses of the defendants shall . . not be revealed or published’. The court was now asked whether a criminal court had power under section 39 of the CYP Act to prohibit in terms the . .
Cited – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – JIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – ETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Media, Human Rights

Updated: 14 November 2022; Ref: scu.472037

Ismail v Secretary of State for Home Department: Admn 26 Mar 2013

The court was asked as to the extent of the Secretary of State’s discretion and obligation to consider a person’s Article 6 rights when requested personally to serve a judgment of an overseas court pursuant to a request for mutual legal assistance from the government of the country of that overseas court. The Claimant said that by serving the judgment the Secretary of State would be directly assisting in the enforcement of a foreign conviction obtained in circumstances which included a flagrant denial of justice. The Secretary of State suggested it would be no more that an administrative role in accordance with her responsibility to assist another state. She would be merely giving the Claimant a copy of the judgment, that her discretion in such circumstances was limited, and that responsibilities under Article 6 were not engaged.
Held: In exercising her discretion under section 1 of the 2003 Act, the Secretary of State could not ignore evidence of obvious illegality or bad faith in the proceedings which had led to the request to enforce a foreign judgment. Nor could she fail to have regard to evidence in relation to the manner in which the judgment had been obtained. She was also obliged to take into account the consequences for the person on whom the judgment was to be served.
The consequences which the court considered would ensue for the respondent by service of the judgment were summarised: ‘Service of the judgment would have serious implications for the claimant both in Egypt and the United Kingdom. It would set time running for finalising the judgment. He would have two options: return to Egypt and begin to serve the prison sentence of seven years with hard labour and appeal or remain in the United Kingdom and suffer the consequences of a final judgment.
Remaining in the United Kingdom would have significant consequences for the claimant once the judgment is served. Although there is presently no extradition arrangement between the United Kingdom and Egypt, on any request for extradition, the claimant could not dispute the facts. Egypt would then be seeking the extradition of a man guilty of manslaughter. Of course, the claimant would have the protection rights under Part 2 of the Extradition Act 2003. Further, a final judgment in the United Kingdom might well lead to an Interpol ‘red notice’. He could not then leave the United Kingdom for fear of being arrested.’
Goldring LJ referred to four factors which, he said, constituted ‘sufficient evidence for the Secretary of State to have considered whether this was a judgment obviously obtained in flagrant disregard of justice; in other words, in bad faith’. Those factors were: (i) the background of public pressure after the respondent’s acquittal for him to be convicted; (ii) the fact that two of the three judges due to hear the appeal were replaced shortly after their appointment by two men who had worked in the prosecutor’s office at the time of the investigation; (iii) in the course of the appeal hearing, the respondent’s legal representation was effectively withdrawn; and (iv) there were grounds to question whether the judgment could be sustained on a proper analysis of the facts.
There was sufficient evidence for the Secretary of State to consider whether article 6 was engaged: ‘For article 6 to be engaged the disregard of a person’s article 6 rights must be flagrant. The test is a very high one. Some indication of that can be gauged from the fact that over the past 20 years article 6 has not been successfully invoked in an extradition context. Even in a case where defence counsel was appointed by the public prosecutor, the applicants were held incommunicado until trial, the hearing was not public and closed to the defence lawyers and self-incriminating statements were obtained in highly doubtful circumstances, extradition was permitted (see Lord Brown’s speech in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110). That underlines how very exceptional must be the circumstances to result in the application of article 6 in a case such as the present.’

Judges:

Goldring LJ, Wyn Williams J

Citations:

[2013] EWHC 663 (Admin), [2013] WLR(D) 133

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 6, Human Rights Act 1998

Jurisdiction:

England and Wales

Cited by:

At Admn – Ismail, Regina (on The Application of) v Secretary of State for The Home Department SC 6-Jul-2016
The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Updated: 14 November 2022; Ref: scu.472040

SNF SAS v European Chemicals Agency: ECJ 21 Mar 2013

ECJ Opinion – Appeal – Actions for annulment – Admissibility – Premature action – Action out of time – Article 47 of the Charter of Fundamental Rights of the European Union – Right to effective judicial protection – European Chemicals Agency (ECHA) – Regulation (EC) No 1907/2006 – Articles 57 and 59 – Substances subject to authorisation – Identification of acrylamide as a substance of very high concern – Inclusion on the candidate list of substances – Publication of the list on the ECHA website – Time-limit for instituting proceedings – Dies a quo – Article 102(1) of the Rules of Procedure of the General Court – Claim barred by lapse of time

Judges:

Cruz Villalon AG

Citations:

C-626/11, [2013] EUECJ C-626/11

Links:

Bailii

Statutes:

Charter of Fundamental Rights of the European Union, Regulation (EC) No 1907/2006

European, Human Rights

Updated: 14 November 2022; Ref: scu.471951

Polyelectrolyte Producers Group Geie v European Chemicals Agency: ECJ 21 Mar 2013

ECJ Appeal – Actions for annulment – Admissibility – Premature action – Action out of time – Article 47 of the Charter of Fundamental Rights of the European Union – Right to effective judicial protection – European Chemicals Agency (ECHA) – Regulation (EC) No 1907/2006 – Articles 57 and 59 – Substances subject to authorisation – Identification of acrylamide as a substance of very high concern – Inclusion on the candidate list of substances – Publication of the list on the ECHA website – Time-limit for instituting proceedings – Dies a quo – Article 102(1) of the Rules of Procedure of the General Court – Claim barred by lapse of time

Judges:

Cruz Villalon AG

Citations:

C-625/11, [2013] EUECJ C-625/11

Links:

Bailii

Statutes:

Charter of Fundamental Rights of the European Union 45

Jurisdiction:

European

Cited by:

Opinion – Polyelectrolyte Producers Group Geie v European Chemicals Agency ECJ 26-Sep-2013
ECJ Appeal – European Chemicals Agency (ECHA) – Registration, evaluation and authorisation of chemical substances – Regulation (EC) No 1907/2006 (REACH Regulation) – Articles 57 and 59 – Substances subject to . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Human Rights

Updated: 14 November 2022; Ref: scu.471947

Lord Carlile of Berriew and Others, Regina (on The Application of) v Secretary of State for The Home Department: CA 20 Mar 2013

The applicants complained of the refusal of a visitors permit by the respondent to an eminent Iranian dissident.
Held: The appeal was dismissed. Although the decision was an interference in the human rights of the applicants, that intereference had been supported by clear justification.

Judges:

Arden, Patten, McCombe LJJ

Citations:

[2013] EWCA Civ 199

Links:

Bailii

Statutes:

Terrorism Act 2000 3, European Convention on Human Rights 9 10

Jurisdiction:

England and Wales

Citing:

Appeal from – Lord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
See Also at POAC – Lord Alton of Liverpool and Others v Secretary of Dtate for the Home Department POAC 30-Nov-2007
The Mujaheddin-e-Khalq had been proscribed under the 2000 Act by the respondent. It now appealed against such proscription.
Held: The organisation had in the past used terrorist methods, but had repeatedly now renounced the use of violence. . .

Cited by:

Appeal from – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 14 November 2022; Ref: scu.471916

Birmingham City Council v Beech and Another: QBD 15 Mar 2013

The tenant, the claimant’s mother had surrendered the tenancy before her death. The claimant now said that she should have been allowed to succeed to the tenancy and that the possession order was disproportionate.

Judges:

Keith J

Citations:

[2013] EWHC 518 (QB)

Links:

Bailii

Statutes:

Housing Act 1985

Jurisdiction:

England and Wales

Housing, Human Rights

Updated: 14 November 2022; Ref: scu.471773

AKJ and Others v Commissioner of Police for The Metroplis and Others: QBD 17 Jan 2013

The claimants sought damages for the actions of undercover police officers engaging in sexual activity as part of the investigation. The court now considered the role of the Investigatory Powers Tribunal in dealing with such claims.
Held: Such activity fell within ‘personal or other relationship with a person’ for the purposes of section 26(8) of the 2000 Act and therefore under section 65, the Tribunal had exclusive jurisdiction to hear a claim brought against the police under the Human Rights Act 1998.

Judges:

Tugendhat J

Citations:

[2013] EWHC 32 (QB), [2013] WLR(D) 49, [2013] 1 WLR 2734

Links:

Bailii, Justiciary, WLRD

Statutes:

Regulation of Investigatory Powers Act 2000, Human Rights Act 1998

Jurisdiction:

England and Wales

Litigation Practice, Police, Human Rights

Updated: 14 November 2022; Ref: scu.470146

Falter Zeitschriften Gmbh v Austria (No 2) (1707): ECHR 18 Sep 2012

Citations:

3084/07 – HEJUD, [2012] ECHR 1707

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 November 2022; Ref: scu.464483

Department for Work and Pensions v Courts: Admn 3 May 2006

The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants’ human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, the appellant had increased the charges adding allegations of dishonesty which had not been put to the defendant.
Held: ‘The finding of a deliberate manipulation of the court process by a prosecutor is a very serious accusation and ought not to be based on inferences drawn from the conduct of an interview and the passage of time.’ There was nothing to indicate that the finally chosen offences were not justified by the evidence. Questions of delay as an infringement of the right to a fair trial arose as between the dat of charge and determination. The cae did not get to determination.

Citations:

[2006] EWHC 1156 (Admin)

Links:

Bailii

Statutes:

Social Security Administration Act 1992, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Scunthorpe Justices ex parte McPhee and Gallagher Admn 24-Feb-1998
The defendant faced a charge of robbery. More than six months after the alleged offence the prosecution sought to add alternate charges including one of common assault. The magistrates declined jurisdiction on the ground that, more than six months . .
Cited – Regina v Ghosh CACD 5-Apr-1982
The defendant surgeon was said to have made false claims for payment for operations, and was charged under the 1968 Act. He claimed to have been entitled to the sums claimed, and denied that he had been dishonest. The court considered the meaning of . .
Cited – Attorney General’s Reference (No 1 of 1990) CACD 1990
A police officer attended an incident where two people were arrested. Complaints about his conduct were made of which he was given notice. A formal investigation was instituted and adjourned pending the outcome of criminal proceedings against those . .
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 – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
Cited – Regina v Commissioner of Police of the Metropolis, Ex parte Blackburn CA 1968
Answerability of Chief Constables
The constitutional status of the Commissioner had never been defined, either by statute or by the courts. By common law police officers owe to the general public a duty to enforce the criminal law. The court considered the extent to which a court . .
Cited – Regina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .
Cited – Regina v Croydon Justices Ex Parte Dean QBD 9-Mar-1993
The applicant a 17 year old assisted the police in a murder investigation on the understanding, induced by the police, that he would not himself be prosecuted. Some weeks later, at the instance of the CPS, the applicant was charged with a lesser . .
Cited – Eckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
Cited – Dyer v Watson and Burrows PC 29-Jan-2002
Parties challenged the compliance of proceedings with the convention where there had been considerable delay.
Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing . .
Lists of cited by and citing cases may be incomplete.

Benefits, Crime, Human Rights

Updated: 14 November 2022; Ref: scu.242204

Taylor, Regina (on the Application of) v Haydn-Smith and Another: Admn 27 May 2005

Whether a detained mental patient could be obliged to receive treatment in the form of antipsychotic medication without his consent.

Judges:

Collins J

Citations:

[2005] EWHC 1668 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983 63 58(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina (B) v Haddock Admn 20-May-2005
Judicial review of continued detention of claimant under hospital order . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 14 November 2022; Ref: scu.229294

T v Special Educational Needs Tribunal and Another: Admn 18 Jul 2002

Gilliatt Parents wanted their high end autistic child to be educated according to the Lovaas principle at home with a phased introduction into mainstream school. The local education authority proposed that the child should be educated at a specialist centre based in a school. The court held that under s 319 of the Education Act 1996 the SEN Tribunal only had to decide whether the education provision proposed by the LEA was appropriate. If it was, there was no power for arrangements to be made outside a school, such as the parents preferred. The Tribunal had done as much as it had to in taking into account the views of the parents. At the High Court hearing, the argument had been put for the first time that there was a breach of Article 2 of Protocol 1 of the Human Rights Act and that the parents belief in the value of the Lovaas method amounted to a philosophical conviction. The court said that it was too late to run the argument and it should have been put to the SENT but that in any event the parents’ beliefs did not amount to a philosophical conviction but only a judgment that one educational method was to be preferred to another.

Judges:

Mr Justice Richards

Citations:

[2002] EWHC 1474 (Admin)

Links:

Bailii

Statutes:

Education Act 1996 319

Jurisdiction:

England and Wales

Education, Human Rights

Updated: 14 November 2022; Ref: scu.175127

Regina v Secretary of State for Trade and Industry Ex Parte McCormick: CA 10 Feb 1998

Statements made under compulsion could be used in disqualification proceedings at discretion of the Secretary of State.

Citations:

Gazette 01-Apr-1998, Times 10-Feb-1998, Gazette 11-Mar-1998

Statutes:

Company Directors Disqualification Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Company, Human Rights

Updated: 14 November 2022; Ref: scu.87954

Wynne v United Kingdom: ECHR 18 Jul 1994

A Discretionary lifer is not entitled to a review by a court of his continued detention. His article five rights were not breached. Where a national court imposed a fixed sentence of imprisonment, the supervision required by article 5.4 was incorporated into that judgment. The court held that the mandatory life sentence belonged to a different category from other sentences because it is imposed automatically as punishment for the offence of murder irrespective of conditions pertaining to the dangerousness of the offender.

Citations:

Ind Summary 26-Sep-1994, Times 27-Jul-1994, 26/1993/421/500, (1994) 19 EHRR 333, 15484/89, [1994] ECHR 24

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5.4

Jurisdiction:

Human Rights

Cited by:

Cited – Waite v The United Kingdom ECHR 10-Dec-2002
The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts . .
Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Cited – Flynn, Meek, Nicol and McMurray v Her Majesty’s Advocate PC 18-Mar-2004
PC (High Court of Justiciary) The applicants had each been convicted of murder, and complained that the transitional provisions for determining how long should be served under the life sentences infringed their . .
Cited – Black, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 14 November 2022; Ref: scu.90638

Rowe and Davis v The United Kingdom: ECHR 16 Feb 2000

(Grand Chamber) Complaint as to non-disclosure of prosecution evidence.

Judges:

Wildhaber P

Citations:

[2000] ECHR 91

Links:

Bailii

Statutes:

European Convention on Human Rights 5 6.1

Citing:

Conjoined Hearing – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
Conjoined Hearing – Fitt v United Kingdom ECHR 16-Feb-2000
(Grand Chamber) Complaint as to non-disclosure of prosecution evidence. . .

Cited by:

Conjoined Hearing – Amann v Switzerland ECHR 16-Feb-2000
(Grand Chamber) Complaint as to non-disclosure of prosecution evidence.
Held: The holding and use of the information in question had not been ‘in accordance with the law’, as required by article 8(2), because of the absence from the relevant . .
Conjoined Hearing – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 14 November 2022; Ref: scu.471640

Evans, Regina v: CACD 23 Jan 2013

The defendant appealed against his conviction in a case concerning the use of a false passport. The central issue was whether the appellant had a defence based upon the proposition that he was a refugee entitled to asylum in this country. He had been deported to Jamaica, but returned with a forged passport which was detected on entry. The court had rejected his argument that he was a refugee entitled to protection after fleeing gangs in Jamaica.
Held: On the evidence before the jury, there was no possible basis for classifying the appellant as a refugee.

Judges:

Jackson LJ, Wyn Williams J, Beaumont QC HHJ

Citations:

[2013] EWCA Crim 125, [2013] WLR(D) 22

Links:

Bailii, WLRD

Statutes:

Convention Relating to the Status of Refugees made at Geneva in 1951, Identity Documents Act 2010 4, Immigration and Asylum Act 1999 31

Jurisdiction:

England and Wales

Citing:

Cited – In re Acosta 1985
US Board of Immigration Appeals –
Held: ‘We find the well-established doctrine of ejusdem generis, meaning literally, ‘of the same kind,’ to be most helpful in construing the phrase ‘membership in a particular social group.’ That doctrine . .
Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Regina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .
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 . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights, Immigration

Updated: 14 November 2022; Ref: scu.471585

Negassi and Another, Regina (on The Application of) v Secretary of State for The Home Department: CA 7 Mar 2013

Maurice Kay VP began: ‘It is well-known that asylum applications, even when made promptly on arrival in this country, can take months or even years before final determination through the decision-making and appellate process. This causes familiar problems. Applicants require support and accommodation for substantial periods of time. When the time is particularly prolonged, features of private and family life may develop which themselves have to be considered as aspects of the applicant’s legal position. During the significant period of time when an applicant cannot be removed from the country, the question arises as to whether he should be permitted to take employment here. Different policy issues are in play. On the one hand, if he is permitted to work, the burden on the public finances will be relieved and he will have a more normal existence. On the other hand, British nationals and others with a right to seek employment here, including citizens of the European Union, will face increased competition for scarce jobs. Until recently, this aspect of asylum was largely a matter of domestic law, including any entitlement arising from the Human Rights Act 1998. However, the law now has a specific EU dimension. ‘

Judges:

Maurice Kay VP, Rimer LJJ, Sir Stanley Burnton

Citations:

[2013] EWCA Civ 151

Links:

Bailii

Statutes:

Council Directive 2003/9/EC

Jurisdiction:

England and Wales

Citing:

Cited – ZO (Somalia) and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 28-Jul-2010
The Directive gave certain rights to asylum applicants. The claimants had applied for asylum, and on failing in their applications, renwewed them, claiming the rights under the Directive again. The respondent said that the rights applied only on a . .
Lists of cited by and citing cases may be incomplete.

Immigration, European, Human Rights

Updated: 14 November 2022; Ref: scu.471504

Kafkaris v Cyprus: ECHR 2 Dec 2011

Execution of the judgment of the European Court of Human Rights

Citations:

[2011] ECHR 2123

Links:

Bailii

Citing:

See Also – Kafkaris v Cyprus ECHR 12-Feb-2008
(Grand Chamber) The claimant said that his rights had been infringed by the mandatory imposition of a life sentence after conviction for murder. Only the President could order the release of such a prisoner, either by exercising the power of mercy . .
See Also – Panayiotis Agapiou Panayi Kafkaris v Cyprus ECHR 21-Jun-2011
Admissibility . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 November 2022; Ref: scu.471499

Vinter, Bamber And Moore v The United Kingdom: ECHR 17 Jan 2012

The prisoners appealed saying that the whole life terms set on the imposition of a life sentence for murder were a breach of their human rights.
Held: The continued detention of three defendants who had been made subject to a whole life tariff did not violate Article 3 because the ‘requirements of punishment and deterrence could only be satisfied by a whole life order’. This was a legitimate penological purpose. The dissenting justices expressed concern about the ‘hopelessness inherent in a sentence of life imprisonment from which, independently of the circumstances, there is no possibility whatsoever of release while the prisoner is still well enough to have any sort of life outside prison’.

Citations:

[2012] ECHR 61, 66069/09, (2012) 55 EHRR 34

Links:

Bailii

Statutes:

Crime (Sentences) Act 1997 30(1), European Convention on Human Rights 3, Criminal Justice Act 2003

Citing:

Statement of facts – Vinter, Bamber And Moore v The United Kingdom ECHR 9-Feb-2011
(Statement of Facts) Prisoners appealed saying that the imposition of a whole life tariff on their life term by the judge, so that they could only be released at the discretion of the Home Secretary, and that this was inhuman treatment. . .

Cited by:

Cited – Oakes and Others v Regina CACD 21-Nov-2012
A specially constituted CACD heard sentencing appeals for defendants serving life terms for very grave crimes, and in particular, the judicial assessment of the minimum term to be served by the appellants for the purposes of punishment and . .
Appeal from – Vinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The three appellants had each been convicted of exceptionally serious murders, and been sentenced to mandatory life sentences, but with provision that they could not be eligible for early release, making them whole life terms. They . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 14 November 2022; Ref: scu.471220