The applicants alleged that the search of their computer club and the seizure and retention of five computers had been unlawful and unnecessary. They also complained of a lack of domestic remedies in this connection.

Ineta Ziemele, P
8429/05, [2014] ECHR 1011
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Police

Updated: 21 December 2021; Ref: scu.537291

The applicant alleged, in particular, that he had been subjected to severe police brutality and that the authorities had failed to carry out an adequate investigation into the incident, in breach of Article 3 of the Convention.

Josep Casadevall, P
35840/09, [2014] ECHR 1010
Bailii
European Convention on Human Rights 3
Human Rights

Human Rights, Police

Updated: 21 December 2021; Ref: scu.537275

[2021] UKIPTrib IPT – 11 – 167
Bailii, Judiciary
England and Wales

Police, Human Rights

Updated: 21 December 2021; Ref: scu.670073

ECHR Article 3
Torture
Effective investigation
Extradition
Torture and inhuman and degrading treatment during and following applicants’ extraordinary rendition to CIA: violations
Article 5
Article 5-1
Lawful arrest or detention
Detention during and following operation involving extraordinary rendition to CIA: violations
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Extraordinary rendition to CIA despite real risk of flagrantly unfair trial before US military commission: violations
Article 38
Article 38-1-a
Obligation to furnish all necessary facilities
Failure to produce documentary evidence despite Court assurances regarding confidentiality: failure to comply with Article 38
Article 46
Individual measures
Article 46-2
Execution of judgment
Respondent State required to seek assurances that US authorities would not impose death penalty in respect of applicant following extraordinary rendition
[This summary also covers the judgment in the case of Al Nashiri v. Poland, no. 28761/11].
Facts – Both applicants alleged that they were victims of an ‘extraordinary rendition’ by the United States Central Intelligence Agency (CIA), that is, of apprehension and extrajudicial transfer to a secret detention site in Poland with the knowledge of the Polish authorities for the purpose of interrogation. They arrived in Poland on board the same ‘rendition plane’ in December 2002 and were detained in a CIA operated detention facility, where they were subjected to so-called ‘enhanced interrogation techniques’ and to ‘unauthorised’ interrogation methods, including in Mr Al Nashiri’s case: mock executions, prolonged stress positions and threats to detain and abuse members of his family. They were subsequently secretly removed from Poland (Mr Al Nashiri in June 2003 and Mr Husayn in September 2003) on rendition flights before ultimately arriving at the US Naval Base in Guantanamo Bay.
In 2011 Mr Al Nashiri was indicted to stand trial before a US military commission on capital charges. The military commissions were set up in March 2002 specifically to try ‘certain non-citizens in the war against terrorism’, outside the US federal judicial system. The trial and review panels were composed exclusively of commissioned officers of the US armed forces. The commission rules did not exclude any evidence, including evidence obtained under torture, if it ‘would have probative value to a reasonable person’. On 29 June 2006 the US Supreme Court ruled* that the military commission ‘lacked power to proceed’ and that the scheme had violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions.
The circumstances surrounding the applicants’ extraordinary rendition have been the subject of various reports and investigations, including reports prepared by Dick Marty, as rapporteur for the investigation conducted by the Parliamentary Assembly of the Council of Europe (PACE) into allegations of secret detention facilities being run by the CIA in several Council of Europe member States (the ‘Marty Reports’). The applicants also relied on a report by the CIA Inspector General in 2004** that was released in heavily redacted form by the US authorities in August 2009. It shows that they fell into the category of ‘High-Value Detainees’ – terrorist suspects likely to be able to provide information about current terrorist threats against the United States – against whom the ‘enhanced interrogation techniques’ were being used, which included the ‘waterboard technique’, confinement in a box, wall-standing and other stress positions. They also referred to a 2007 report by the International Committee for the Red Cross on the treatment of ‘High-Value Detainees’ in CIA custody, based on interviews with 14 such detainees, including Mr Al Nashiri and Mr Husayn, which describes the treatment to which they were subjected in CIA custody.
A criminal investigation in Poland concerning secret CIA prisons on Polish territory was opened against persons unknown in March 2008. It was extended a number of times and was still pending at the date of the Court’s judgment.
Law – Article 38: The Government had refused on the grounds of confidentiality and the pending criminal investigation to comply with the Court’s repeated requests to produce documentary evidence.
The Court was mindful that the evidence requested was liable to be of a sensitive nature or might give rise to national-security concerns and for that reason had from the start given the Government an explicit guarantee as to the confidentiality of any sensitive materials produced. It had imposed confidentiality on the parties’ written submissions and had held a separate hearing in camera, devoted exclusively to matters of evidence.
The Court did not accept the Government’s view that the Court’s rules of procedure did not offer sufficient safeguards of confidentiality. The obligations the Contracting States took upon themselves under the Convention read as a whole included their undertaking to comply with the procedure as set by the Court under the Convention and the Rules of Court. The Rules of Court were not, as the Government had maintained, a mere ‘act of an internal nature’ but emanated from the Court’s treaty-given power set forth in Article 25 (d) of the Convention to adopt its own rules regarding the conduct of the judicial proceedings before it. The absence of specific, detailed provisions for processing confidential, secret or otherwise sensitive information in the Rules did not mean that the Court operated in a vacuum. On the contrary, over many years the Convention institutions had established sound practice in handling cases involving highly sensitive matters, including national-security related issues. The Court was sufficiently well equipped to address adequately any concerns involved in processing confidential evidence by adopting a wide range of practical arrangements adjusted to the particular circumstances of a given case.
Nor could the Court accept the Government’s plea that the domestic regulations on the secrecy of investigations constituted a legal barrier to the discharge of their obligation to furnish evidence. A Government could not rely on national laws or domestic legal impediments to justify a refusal to comply with evidential requests by the Court. In particular, the Court could not be required to obtain permission from the investigating prosecutor to consult the case file. In sum, it was the Government’s responsibility to ensure that the documents requested were prepared by the prosecution authority and submitted either in their entirety or, as directed, at least in a redacted form, within the prescribed time-limit and in the manner indicated by the Court. The failure to submit this information had to be seen as hindering the Court’s tasks under Article 38.
Conclusion: failure to comply with Article 38 (unanimously).
Establishment of the facts
Having regard to the materials before it, including the expert and witness evidence and the international inquiries and reports, the Court found it established beyond reasonable doubt that the applicants had arrived in Poland on board a CIA rendition aircraft on 5 December 2002, had been detained in a CIA detention facility where they were subjected to unauthorised interrogation techniques and had subsequently been transferred from Poland on a CIA rendition aircraft in June and September 2003 respectively.
It also found that Poland had known of the nature and purposes of the CIA’s activities on its territory at the material time. Poland had cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by providing logistics and services, including special security arrangements, a special procedure for landings, the transportation of CIA teams with detainees on land, and the securing of the base for the secret detention. Having regard to the widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention.
Article 3
(a) Procedural aspect – The investigation into the allegations concerning the existence of a CIA secret detention facility in Poland were only opened in March 2008 some six years after the applicants’ detention and ill-treatment, despite the Polish authorities’ knowledge of the nature and purposes of the CIA’s activities on their territory between December 2002 and September 2003. However, at that time they had done nothing to prevent such activities, let alone inquire into whether they were compatible with the national law and Poland’s international obligations. More than six years later the investigation – against persons unknown – was still pending and there had been no official confirmation that criminal charges had been brought. This failure to inquire on the part of the Polish authorities could be explained only by the fact that the activities were to remain a secret shared exclusively by the US and Polish intelligence services.
These were cases in which the importance and the gravity of the issues involved – allegations of serious human-rights violations, questions of the legality and the legitimacy of the activities – had required particularly intense public scrutiny of the investigation. Securing proper accountability of those responsible for the alleged, unlawful action was instrumental in maintaining confidence in the Polish State institutions’ adherence to the rule of law and the Polish public had a legitimate interest in being informed of the investigation and its results. The case also raised a more general problem of democratic oversight of intelligence services and the need for appropriate safeguards – both in law and in practice – against violations of Convention rights by intelligence services, notably in the pursuit of their covert operations. The circumstances of the instant case could raise concerns as to whether the Polish legal order fulfilled that requirement.
In the light of all these considerations, the Court held that the proceedings had failed to meet the requirements of a ‘prompt’, ‘thorough’ and ‘effective’ investigation for the purposes of Article 3 of the Convention.
Conclusion: violations (unanimously).
(b) Substantive aspect – The treatment to which the applicants had been subjected by the CIA during their detention in Poland had amounted to torture. It was true that the interrogations and, therefore, the ill-treatment of the applicants at the detention facility had been the exclusive responsibility of the CIA and it was unlikely that the Polish officials had witnessed or known exactly what had happened inside it. However, under Article 1 of the Convention, taken together with Article 3, Poland had been required to take measures to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment. For all practical purposes, Poland had facilitated the whole process, had created the conditions for it to happen and had made no attempt to prevent it from occurring. Accordingly, the Polish State, on account of its acquiescence and connivance in the CIA rendition programme had to be regarded as responsible for the violation of the applicants’ rights committed on its territory.
Furthermore, Poland had been aware that the transfer of the applicants to and from its territory was effected by means of ‘extraordinary rendition’. Consequently, by enabling the CIA to transfer the applicants to other secret detention facilities, the Polish authorities had exposed them to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3.
Conclusion: violations (unanimously).
Article 5: The secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. The rendition operations largely depended on the cooperation, assistance and active involvement of the countries which put at the US’s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners and, premises on which the prisoners could be securely detained and interrogated. Such cooperation and assistance in the form of customising premises for the CIA’s needs, ensuring security and providing logistics were the necessary condition for the effective operation of the CIA secret detention facilities.
In addition, the Court’s finding under Article 3 that by enabling the CIA to transfer the applicants to its secret detention facilities overseas Poland had exposed them to a foreseeable serious risk of non- Convention compliant conditions of detention also applied to the complaint under Article 5.
Poland’s responsibility was thus engaged in respect of both the applicant’s detention on its territory and his transfer from Poland.
Conclusion: violations (unanimously).
Article 6 – 1: At the time of the applicant’s transfer from Poland there was a real risk that his trial before the US military commission would amount to a flagrant denial of justice for three reasons. First, the commission did not offer guarantees of impartiality or independence as required of a ‘tribunal’ under the Court’s case-law; second, it did not have legitimacy under US and international law (the US Supreme Court had ruled that it lacked the ‘power to proceed’ – and so for the purposes of Article 6 – 1 was not ‘established by law’; third, there was a sufficiently high probability of evidence obtained under torture being admitted in trials against terrorist suspects.
The Polish authorities must have been aware at the time that any terrorist suspect would be tried by the military commission and of the circumstances that had given rise to the grave concerns expressed worldwide about that institution, notably in a PACE Resolution of 26 June 2003.***
Consequently, Poland’s cooperation and assistance in the applicants’ transfer from its territory, despite a real and foreseeable risk that he could face a flagrant denial of justice, had engaged its responsibility under Article 6 – 1.
Conclusion: violations (unanimously).
Articles 2 and 3 of the Convention in conjunction with Article 1 of Protocol No. 6 (Al Nashiri only): At the time of Mr Al Nashiri’s transfer from Poland there was a substantial and foreseeable risk that he would be subjected to the death penalty following his trial before the military commission. Given that he was indicted on capital charges on 20 April 2011, that risk had not diminished.
Conclusion: violation (unanimously).
The Court also found, unanimously, violations of Article 8 of the Convention in that the interference with the applicants’ right to respect for their private and family life had not been in accordance with the law and lacked any justification, and of Article 13 in conjunction with Article 3 in that the criminal investigation had fallen short of the standards of an effective investigation and had thus denied the applicants an ‘effective remedy’.
Article 46 (Al Nashiri case): In order to comply with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention, Poland was required to seek to remove, as soon as possible, the risk that Mr Al Nashiri would be subjected to the death penalty by seeking assurances from the US authorities that it would not be imposed.
Article 41: EUR 100,000 each in respect of non-pecuniary damage.

7511/13 – Legal Summary, [2014] ECHR 876
Bailii
European Convention on Human Rights
Human Rights
Citing:
Judgment – Husayn (Abu Zubaydah) v Poland ECHR 24-Jul-2014
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 20 December 2021; Ref: scu.535696

Applicants allege primarily that their loved Metin Yurtsever died in custody as a result of beatings by police officers during his arrest and detention. They denounce the ineffectiveness of domestic remedies. They allege a violation of Articles 2, 3, 6 and 13 of the Convention.

Guido Raimondi, P
22965/10 – Chamber Judgment, [2014] ECHR 728
Bailii
European Convention on Human Rights

Human Rights, Police

Updated: 16 December 2021; Ref: scu.533861

Isabelle Berro-Lefevre, P
57856/11 – Chamber Judgment, [2014] ECHR 601
Bailii
European Convention on Human Rights

Human Rights

Updated: 04 December 2021; Ref: scu.526558

Josep Casadevall P
14974/09 – Chamber Judgment, [2014] ECHR 140, [2014] ECHR 141
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Police

Updated: 01 December 2021; Ref: scu.521881

Article 3
Degrading treatment
Inhuman treatment
Serious injury to nose caused by tear gas canister fired by police officer: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Facts – The first applicant, who was thirteen at the material time, was struck in the face by a tear gas canister which he claimed had been fired directly into the crowd by a law-enforcement officer during a demonstration. The public prosecutor decided to take no further action, without examining whether the force used had been proportionate, on the grounds that the law-enforcement agencies had acted in the interests of maintaining public order and to defend themselves against a hostile crowd.
Law – Article 3 (substantive aspect): The applicant had been injured in the nose by a tear gas canister fired by a police officer and his injuries had unquestionably been serious. The treatment to which the applicant had been subjected had attained the threshold of severity required by Article 3.
It was clear from the video footage and all the evidence in the file that the demonstration had not been peaceful. Accordingly, no particular issue arose under Article 3 on account of the use of tear gas as such to disperse the gathering. However, what was in issue in the present case was not simply the fact that tear gas had been used but the fact that a tear gas canister had been fired directly at the demonstrators. The firing of tear gas canisters using a launcher entailed a risk of causing serious injury, as in the present case, or even of killing someone if the launcher was used improperly. Consequently, given the dangerous nature of the equipment used, the Court considered that its case-law on the use of potentially lethal force should apply mutatis mutandis in the present case. As well as being authorised under national law, policing operations – including the firing of tear gas canisters – had to be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness, abuse of force and avoidable accidents.
In his decision to take no further action, the public prosecutor had merely observed that the applicant had been injured during a demonstration in which he had been actively involved. He noted that the police officers had fired tear gas canisters in order to disperse the demonstrators, but did not take the trouble to examine the manner in which the tear gas had been fired. Such an approach appeared clearly inadequate in the light of the applicant’s allegation that he had been struck directly in the nose by a canister, especially since the demonstration had been taking place on a boulevard with numerous passers-by who could potentially have been hit. In that connection the video footage appeared to show that, as the applicant claimed, the canister had been fired directly and in a straight line rather than at an upward angle. Since the Government had not produced any evidence capable of disproving the applicant’s allegations, the Court accepted that the canister had been fired directly and in a straight line. That could not be considered an appropriate action on the part of the police given that firing tear gas in that way could cause serious or even fatal injury; firing tear gas at an upward angle was generally considered the proper method, in so far as it avoided causing injury or death if someone was hit. Furthermore, at the time of the events, Turkish law had not contained any specific provisions regulating the use of tear gas canisters during demonstrations or any guidelines concerning their use. In view of the fact that two people had been killed by tear gas canisters during the events in question and that the applicant had been injured on that occasion, it could be inferred that the police officers had enjoyed a greater autonomy of action and been left with more opportunities to take unconsidered initiatives than would probably have been the case had they had the benefit of proper training and instructions. Such a situation did not afford the level of protection of individuals’ physical safety that was required in contemporary democratic societies in Europe.
Accordingly, it was not established that the use of force to which the applicant had been subjected had been an appropriate response to the situation from the standpoint of the requirements of Article 3 of the Convention or that it had been proportionate to the aim sought to be achieved, namely the dispersal of a non-peaceful gathering. The seriousness of the applicant’s head injuries was not consistent with the use by the police of a degree of force made strictly necessary by his conduct.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 in respect of pecuniary and non-pecuniary damage.
Article 46: There had been a violation of Article 3 of the Convention because it had not been established that the use of force to which the applicant had been subjected had been an appropriate response to the situation. Furthermore, at the material time, Turkish law had not contained any specific provisions regulating the use of tear gas canisters during demonstrations, nor had any guidelines on their use been issued to the law-enforcement agencies. The Court noted that on 15 February 2008 a circular laying down the conditions governing the use of tear gas had been sent to all the security forces. Nevertheless, the safeguards surrounding the proper use of tear gas canisters needed to be strengthened by means of more detailed legislation and/or regulations, in order to minimise the risk of death or injury resulting from their use.

44827/08 – Legal Summary, [2013] ECHR 839
Bailii
European Convention on Human Rights
Cited by:
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 20 November 2021; Ref: scu.515421

The claimant, who had a criminal record from 1984, and 1993, had refused to accede to a requirement that he attend at a police station to provide a non-intimate sample so that a DNA record could be created for him to be placed on the national database. He said that though the request was made to assist in the detection of crime, it was a disproprtionate interference in his right to a private life.
Held: The challenge failed. The first request had been incorrect but the second was correct and proportionate.

Pitchford LJ, Hickinbottom J
[2013] EWHC 2864 (Admin)
Bailii
Police and Criminal Evidence Act 1984 63A

Police, Human Rights

Updated: 20 November 2021; Ref: scu.515418

ECHR Article 5-1
Deprivation of liberty
Transfer and stay at police headquarters of a group of immigrants with a view to identifying and deporting unlawful residents: violation
Facts – The applicant, a Syrian national of Kurdish origin, fled Syria in 2005 and made an unsuccessful claim for asylum in Cyprus. His file was reopened by the asylum service in 2008 because new information had been received. In 2010, while the re-opened asylum proceedings were still pending, the applicant joined a round-the-clock protest that was being staged against the Government’s asylum policy. The authorities decided to remove the protestors, citing unsanitary conditions, the illegal use of electricity and complaints from members of the public. Early one morning in June 2010 250 police officers descended on the encampment, escorted the protesters to waiting buses and took them to police headquarters with a view to determining their immigration status. Those who were found to be refugees or bona fide asylum-seekers were allowed to leave. Those whose presence in the country was found to be unlawful were detained with a view to deportation. 22 protestors were deported on the same day and 44 others, including the applicant, were charged with unlawful stay and transferred to detention centres in Cyprus. The applicant was considered by the authorities to be unlawfully staying in the Republic and deportation and detention orders were issued against him despite the pending asylum proceedings. The next day, the applicant and 43 other people of Kurdish origin submitted a request to the European Court for interim measures under Rule 39. The Court indicated to the Cypriot Government that they should not be deported until the Court had had the opportunity to receive and examine all documents pertaining to their claims. In August 2010 the Minister of the Interior declared the applicant an irregular immigrant on public order grounds, relying on allegations that he had received money from prospective Kurdish immigrants in exchange for residence and work permits in Cyprus. New deportation and detention orders were issued on that basis and the previous ones cancelled. The Rule 39 interim measure in respect of the applicant was reviewed by the European Court in September 2010 and maintained. The applicant brought habeas corpus proceedings before the domestic courts to complain of his detention. Ultimately, in 2012, his appeal to the Supreme Court was dismissed as, in the meantime, in May 2011, he had been released after being granted refugee status.
Law – Articles 2 and 3: The applicant had been granted refugee status and was no longer at risk of deportation to Syria and could therefore not claim to be a victim of violations of his rights under those Articles.
Conclusion: inadmissible (incompatible ratione personae).
Article 13 in conjunction with Articles 2 and 3: The applicant’s complaints under Articles 2 and 3 had been arguable, so he could rely on Article 13. Although the decision to grant him refugee status had removed the risk that he would be deported, it had not acknowledged and afforded redress for his claim that the judicial-review proceedings were ineffective. He could therefore still claim to be a ‘victim’ in respect of that complaint.
Where a complaint suggested that an applicant’s expulsion might expose him or her to a real risk of treatment contrary to Articles 2 or 3, an effective remedy had to be such as to prevent the execution of measures that were contrary to the Convention and whose effects were potentially irreversible; this required close scrutiny by a national authority, a particularly prompt response and automatic suspensive effect. At the time the deportation and detention orders were issued, the applicant’s file was under consideration by the asylum service and such proceedings were, under the domestic law, suspensive in nature. The applicant had thus been lawfully in Cyprus and should not have been subject to deportation. Nonetheless the deportation order had remained in place for several months while the asylum proceedings were still pending, and the only reason he had not been deported to Syria was because Rule 39 had been applied. As admitted by the Government, that situation had arisen as a result of an error by the authorities. No effective domestic judicial remedy had been available to counter that error. Moreover, there had been a lack of effective safeguards to protect the applicant from wrongful deportation. In particular, recourse to the Supreme Court for annulment of a deportation order and an application for a provisional order to suspend deportation did not have automatic suspensive effect. In so far as the Government had argued that the latter remedy was suspensive ‘in practice’, the requirements of Article 13 and other provisions of the Convention took the form of guarantees and not mere statements of intent or practical arrangements. In sum, the applicant had not had an effective remedy in relation to his complaint under Articles 2 and 3.
Conclusion: violation (unanimously).
(See in this connection Gebremedhin [Gaberamadhien] v. France, no. 25389/05, 26 April 2007, Information Note 96; and De Souza Ribeiro v. France [GC], no. 22689/07, 13 December 2012, Information Note 158)
Article 5-1: In order to evaluate the lawfulness of the applicant’s detention, the Court identified three distinct stages.
First, regarding his transfer to the police headquarters, the protesters had been left with little choice but to board the buses and remain at the headquarters. Given the coercive nature, scale and aim of the police operation, including the fact that it had been carried out so early in the morning, there had been a de facto deprivation of liberty. As to the legal basis for that deprivation of liberty, the Government had relied on the police’s statutory powers and duties of arrest and to preserve order on the public highway and regulate movement. However, they had not claimed that any of those powers had actually been used to effect the applicant’s arrest. It was clear that the aim of the operation had also been to identify those protesters who were unlawfully on the territory with a view to deporting them. The authorities had considered that it would have been impossible to carry out an effective on-the-spot inquiry without provoking a violent reaction and so had taken the protesters to police headquarters. While the Court was conscious of the difficult situation in which the Cypriot authorities had found themselves, that could not justify measures giving rise to a deprivation of liberty without any clear legal basis. The applicant’s deprivation of liberty during that period had, therefore, been contrary to Article 5 -1.
Second, the applicant’s detention on the basis of the deportation and detention orders issued in June 2010 had been unlawful, as the orders were issued by mistake at a time when he had lawful resident status because the re-examination of his asylum application was still pending.
Finally, the procedure prescribed by law had not been followed in respect of the applicant’s detention from August 2010 until his release in May 2011, as he had not been given notice of the new deportation and detention orders in accordance with the domestic law.
Overall, the applicant’s entire period of detention namely, from June 2010 until May 2011, had been in breach of Article 5-1.
Conclusion: violation (unanimously).
(See Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, 15 March 2012, Information Note 150; and Medvedyev and Others v. France [GC], no. 3394/03, 29 March 2010, Information Note 128).
Article 4 of Protocol No. 4: All the persons concerned had had an individual examination of their personal circumstances. In particular, their asylum applications had been dealt with on an individual basis over a period of more than five years. Those who had appealed had had their appeals individually examined and dismissed. Separate letters had been sent by the asylum authorities to the persons concerned informing them of the relevant decisions. The authorities had carried out a background check with regard to each person before issuing the orders and separate deportation and detention orders had been issued in respect of each person. Individual letters had also been prepared informing the persons detained of the authorities’ decision to detain and deport them. The fact that the protesters, including the applicant, had been taken together to the police headquarters, that some had been deported in groups, or that deportation orders and letters had been phrased in similar terms and therefore had not specifically referred to the asylum decisions, was not itself indicative of a collective measure within the meaning attributed to that term by the Court’s case-law. Although a mistake had been made in relation to the status of some of the persons concerned, including the applicant, that fact, while unfortunate, could not be taken as showing that there had been a collective expulsion.
Conclusion: no violation (unanimously).
The Court also found no violation of Article-2 and a violation of Article 5-4 (speediness of review).
Article 41: EUR 10,000 in respect of non-pecuniary damage.

41872/10 – Legal Summary, [2013] ECHR 775
Bailii
European Convention on Human Rights
Citing:
Judgment – MA v Cyprus ECHR 23-Jul-2013
. .

Cited by:
See Also – MA v Cyprus ECHR 23-Jul-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 19 November 2021; Ref: scu.515134

The court considered the compatibility of the powers in Schedule 7 of the 2000 Act to ‘stop, question, and search’ with a detainee’s human rights.
Held: The powers were valid and required.

Gross LJ, Swift, Foskett JJ
[2013] EWHC 2573 (Admin), [2014] 1 All ER 529, [2014] 1 QB 607, [2014] 2 WLR 150, [2014] ACD 29
Bailii
England and Wales
Citing:
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

Cited by:
Appeal from – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 19 November 2021; Ref: scu.514945

Lech Garlicki, P
[2011] ECHR 2080, 42577/07
Bailii
European Convention on Human Rights
Citing:
Statement of Facts – Hurst v United Kingdom ECHR 19-Nov-2009
Statement of Facts . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 19 November 2021; Ref: scu.514424

ECHR Article 2
Positive obligations
Article 2-1
Effective investigation
Failure to establish the responsibility of the administrative authorities for the death of a thirteen-year old boy in a public place: violation
Facts – In June 2005 the applicants’ thirteen-year old son died from injuries sustained when part of a balcony broke off from a building and fell on him while he was out playing. In September 2006 the applicant made a civil claim for non-pecuniary damage in criminal proceedings that had been instituted as a result of the accident. The prosecutor established that the city municipality had known since February 2005 that the building was in a poor state of repair and two municipal officials were indicted for failing to perform their duties. However, because the municipality was undergoing administrative changes entailing a reallocation of the duties and responsibilities, it emerged that there was no one with specific responsibility for derelict and abandoned buildings and in May 2010, after the investigation had been discontinued and re-opened several times, the charges against the two officials were dropped. Following an appeal by the applicant, the regional court upheld the decision to discontinue the criminal proceedings under the statute of limitations.
Law – Article 2: According to the Court’s case-law, the State’s obligation to protect the right to life must also involve the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, to require an effective and independent judicial system to be set up to secure legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. Therefore, in cases involving non-intentional infringements of the right to life, the aforementioned positive obligations required States to adopt regulations for the protection of people’s safety in public spaces and to ensure the effective functioning of that regulatory framework. In that connection, the Court noted that the prosecutor had established that despite knowing the condition of the building the municipality had not complied with its legal duty to care for derelict buildings. On-going administrative reform could not justify inaction on the part of the authorities.
Further, although the national authorities had promptly opened a criminal investigation, the investigating officers had not acted with due diligence when collecting evidence, and had ignored possibilities of identifying those accountable, for example by bringing charges against the managers concerned. In conclusion, the criminal investigation had not been thorough and the domestic authorities had failed to display due diligence in protecting the applicant’s son’s right to life. Moreover, the legal system as a whole, faced with an arguable case of negligence causing death, had failed to provide an adequate and timely response consonant with Lithuania’s obligations under Article 2 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 20,000 in respect of non-pecuniary damage; EUR 8,135 in respect of pecuniary damage.

14326/11 – Legal Summary, [2013] ECHR 738
Bailii
European Convention on Human Rights 2-1

Human Rights, Police

Updated: 18 November 2021; Ref: scu.514304

Lawfulness of the police detention of a juvenile for his own protection or in his own interests under section 38 (s. 38) of the Police and Criminal Evidence Act 1984 (PACE). The appellant contends that the provisions in s.38 entitling a custody officer to decline to order a person’s release from police detention for such reasons are incompatible with Article 5 of the European Convention of Human Rights

Dame Victoria Sharp P
[2021] EWCA Civ 1662
Bailii
European Convention on Human Rights 5
England and Wales

Police, Human Rights

Updated: 18 November 2021; Ref: scu.669788

ECHR Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to take measures to resolve systemic problems with criminal investigations into missing persons
Facts – The cases concerned five joined applications lodged by families who complained about the disappearance of their eight male relatives in Grozny or the Grozny District between March 2002 and July 2004. The facts of the cases were similar in both the style of the abductions, which were conducted in a manner resembling a security operation, and the resulting criminal investigations, which remained pending without having produced any tangible results. The parties disputed the level of State involvement in the disappearances as well as whether the abducted men could be presumed dead.
Law – Following an analysis of the disputed facts, the Court found it established that the applicants’ family members must be presumed dead following their unacknowledged detention by State agents. Accordingly, a substantive violation of Article 2 was found. The Court also found a procedural violation of Article 2 on account of the failure to carry out effective investigations into the disappearances. In doing so, it noted that the criminal investigations in these cases had suffered similar defects to those in other cases concerning disappearances in Chechnya and Ingushetia. The Court also found a violation of Article 3 on account of the distress and anguish suffered by the families of the abducted men and a ‘particularly grave’ violation of Article 5 as the applicants’ relatives had been held in detention by State agents without legal grounds or acknowledgement. Lastly, the Court held that there had been a violation of Article 13 as, while the Russian Code of Criminal Procedure provided for the possibility of judicial review of investigators’ decisions, the Court was not satisfied that this provided an adequate remedy where, as in this case, the investigations were repeatedly adjourned and reopened.
Article 46: Violations of the same rights had regularly been found in similar cases against the Russian Federation, the majority of which concerned disappearances in Chechnya and Ingushetia between 1996 and 2006. More than 120 judgments had been adopted by September 2012 with more applications communicated or pending.
The Court stressed that Article 2 rights would be rendered illusory if an applicant’s victim status were to be remedied by damages alone. There is a clear obligation to conduct effective investigations capable of leading to the identification and punishment of those responsible. In cases of missing persons, there arises an additional obligation of investigating in order to locate the missing person or find out what happened to him or her. Article 3 also requires that the State should be compassionate and respectful to relatives of deceased or missing persons and that it should assist in obtaining information and uncovering facts.
With regard to the number of applications before the Court concerning similar issues, the Court found that the Russian Federation had systemic problems with investigating disappearances. This was attested in particular by reports of the Council of Europe Committee of Ministers which showed that the problems remained largely unresolved. The Court was therefore compelled to provide some guidance on certain measures that had to be taken, as a matter of urgency, to address these systemic failures. These measures fall into two principal groups:
(a) Situation of the victims’ families – This was the more pressing group of measures as ineffective criminal investigations resulted in a sense of acute helplessness and confusion on the part of the victims’ families. A key proposal of the Court was for the State to establish a single, sufficiently high-level body responsible for solving disappearances in the region, which would enjoy unrestricted access to all relevant information, would work on the basis of partnership with the families, and could compile a unified database of disappearances.
In addition, the Court stated that greater resources should be allocated to the forensic and scientific work necessary for the investigations.
The Court welcomed the State’s developments towards better compensating victims’ families. It noted that substantial compensation, coupled with a clear and unequivocal admission of State responsibility for the relatives’ frustrating and painful situation, could resolve Article 3 issues.
(b) Effectiveness of the investigation – Even where Article 3 concerns were resolved, there was a continuing obligation to investigate the situations of known or presumed deaths of individuals, where there was at least prima facie evidence of State involvement. The Court reaffirmed its position in Varnava and Others where it was noted that, inter alia: insufficient evidence resulting from delay in investigating could not absolve the State from making the requisite investigative efforts; a preference for a ‘politically-sensitive’ approach to avoid drawing attention to the circumstances of the disappearances could have no bearing on the application of the Convention; and investigations should be prompt, independent, under public scrutiny, and capable of leading to a determination of whether the death was caused unlawfully and, if so, to the identification and punishment of those responsible.
While the Court recognised the problem of illegal militant groups facing the Russian Federation, it also considered it possible to ensure accountability of the anti-terrorist and security services without compromising the legitimate need to combat terrorism. In view of the similar patterns surrounding the cases, it was held to be vital to form a general strategy to help elucidate a number of questions common to the cases as well as to review the adequacy of current existing legal definitions of relevant criminal acts.
Additionally, the Court judged that there should be stronger cooperative efforts between investigating authorities and the military and security agencies. This would demand that the investigators be given the power to identify the agencies responsible for capturing insurgents and to retrieve important records including details of personnel involved in operations concerning the subject matter of the investigation and of the passage of service vehicles through security roadblocks. More generally, investigators should be given unhindered access to the relevant data of the military and security agencies and it was necessary to ensure that the investigation and its supervision was not entrusted to persons or structures potentially implicated in the events at issue.
It was stressed that relatives should have better access to case files, particularly where the cases had been suspended. It was also found that invoking the statute of limitations as a bar to investigation would be contrary to the State’s Article 2 obligations.
Considering the serious and continuous nature of the alleged violations, the Court declined to adjourn similar cases.
Article 41: Sums ranging between EUR 14,000 and EUR 16,000 in respect of pecuniary damage. Sums ranging between EUR 60,000 and EUR 120,000 in respect of non-pecuniary damage.

2944/06 – CLIN, [2012] ECHR 3002
Bailii
European Convention on Human Rights

Human Rights, Police

Updated: 14 November 2021; Ref: scu.510860

[2021] UKIPTrib IPT – 20 – 01
Bailii
England and Wales

Police, Human Rights

Updated: 12 November 2021; Ref: scu.668281

The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: (Majority: Lord Dyson, Lord Phillips, Lady Hale, Lord Judge and Lord Kerr. Dissenting: Lord Rodger, Lord Brown) A declaration should be granted that the present ACPO guidelines (but not the Act itself), being contrary to Marper (ECHR), were incompatible with the human rights of the claimants. However it was not appropriate for the Court to create its own policy.
Lord Dyson said it was not clear that Parliament had intended by 64(1A) to require that specimens be kept pemanently: ‘To argue from the premise that Parliament intended that a greatly extended database should be created to the conclusion that it intended that, save in exceptional circumstances, the data should be retained indefinitely in all cases is a non sequitur.’ and ‘section 64(1A) permits a policy which (i) is less far-reaching than the ACPO guidelines; (ii) is compatible with article 8 of the ECHR; and (iii) nevertheless, promotes the statutory purposes. Those purposes can be achieved by a proportionate scheme.’
Lord Rodger dissented saying: ‘the power which was conferred on the police by section 64(1A) had to be exercised in accord with the policy and objects of that enactment. As I have explained, the policy and objects of Parliament in enacting section 64(1A) were plainly that DNA samples and data derived from suspects should be retained indefinitely so that a large and expanding database should be available to aid the detection and prosecution of the perpetrators of crimes. The police were therefore bound to exercise the power given to them by section 64(1A) in order to promote that policy and those objects. This meant, in effect, that, subject to possible very narrow exceptions (eg, those suspected of a crime which turned out not to be a crime at all), the police had to retain on their database the samples and profiles of all suspects. In short, the police were under a duty to do so.’ and ‘section 64(1A) is incompatible with suspects’ article 8 Convention rights. Even though Parliament and the Government have the matter under review, I consider that the better course is for this court to grant a declaration of incompatibility in terms of section 4(2) of the HRA.’

Lord Phillips, President, Lord Rodger, Lady Hale, Lord Brown, Lord Judge, Lord Kerr, Lord Dyson
[2011] UKSC 21, [2011] 1 WLR 1230, [2011] 2 Cr App R 18
Bailii, SC Summary, Bailii Summary, SC
Police and Criminal Evidence Act 1984 64 64(1A), European Convention on Human Rights, Crime and Security Act 2010, Human Rights Act 1998 4
England and Wales
Citing:
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Appeal from – Regina (GC) v Commissioner of Police of the Metropolis; Regina (C) v Commissioner of Police of the Metropolis Admn 16-Jul-2010
The claimants had each had biometric samples taken during police investigations, and now sought judicial review of the decision of the respondent not to remove those details from the Police National Computer, saying that in accordance with the . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Greens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
Cited – L, Regina (On the Application of) v Commissioner of Police of the Metropolis SC 29-Oct-2009
Rebalancing of Enhanced Disclosure Requirements
The Court was asked as to the practice of supplying enhanced criminal record certificates under the 1997 Act. It was said that the release of reports of suspicions was a disproportionate interference in the claimants article 8 rights to a private . .
Cited – In re S (Minors) (Care Order: Implementation of Care Plan) HL 14-Mar-2002
Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. The proposed . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Cited – Greens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
Cited – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – Car Owners’ Mutual Insurance Company Limited v The Treasurer of The Commonwealth of Australia (Australia) PC 17-Mar-1969
(Australia) Lord Wilberforce observed that ‘in a statutory framework it is impossible to conceive of a discretion not controlled by any standard or consideration stated, or to be elicited from, the terms of the Act.’ . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .

Cited by:
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 11 November 2021; Ref: scu.439807