TD v Secretary of State for Work and Pensions and London Borough of Richmond-Upon-Thames (HB): UTAA 20 Dec 2013

Human rights law – article 10 (freedom of expression) – ‘ This appeal is concerned with the rule in the housing benefit that, in effect, allows a child in what I will term ‘an exactly equal shared care’ situation to count only as the child of one of his parents for housing benefit (and council tax benefit) purposes. ‘

[2013] UKUT 642 (AAC)
Bailii
Housing Benefit Regulations 2006 20(2)(a)
England and Wales

Benefits, Human Rights

Updated: 01 December 2021; Ref: scu.522255

Ellis-Carr v Levy (Home Rights : Requirements To Establish Interest): LRA 19 Nov 2013

LRA Family Law Act 1996 – home rights notice – meaning and effect of ‘intention’ in statute – Applicant’s evidence – property never occupied as a matrimonial home – whether husband ever had entitlement to occupy by virtue of a beneficial estate or interest or application – application opposed by Applicant’s husband’s trustee in bankruptcy – effect of orders relating to property made by Registrar Derrett in the bankruptcy upheld by Norris J on appeal – Mental Capacity Act 2005 – CPR 21 – s283A Insolvency Act – s261 Enterprise Act 2002

Judge Hargreaves
[2013] LRAD 2012 – 1122
Bailii
Family Law Act 1996

Registered Land, Family, Human Rights, Insolvency

Updated: 01 December 2021; Ref: scu.521988

Hasan and Chaush v Bulgaria: ECHR 2 Dec 2011

[2011] ECHR 2133
Bailii, Bailii
Citing:
Principal judgmentHasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2021; Ref: scu.521996

Pentikainen v Finland: ECHR 4 Feb 2014

11882/10 – Chamber Judgment, [2014] ECHR 106
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoPentikainen v Finland ECHR 4-Feb-2014
ECHR Article 10-1 – Freedom of expression
Arrest and conviction of journalist for not obeying police orders during a demonstration: no violation
Facts – The applicant was a photographer and journalist . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2021; Ref: scu.521906

Oruk v Turkey (Judgment): ECHR 4 Feb 2014

33647/04 – Chamber Judgment (French text), [2014] ECHR 114
Bailii
European Convention on Human Rights
Human Rights
Citing:
SummaryOruk v Turkey (Summary) ECHR 4-Feb-2014
Article 2
Positive obligations
Article 2-1
Life
Death of six children as a result of failure to secure and supervise firing range containing unexploded ordnance: violation
Facts – In October 1993 a mortar rocket . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2021; Ref: scu.521902

Placi v Italy (Legal Summary): ECHR 21 Jan 2014

ECHR Article 3
Degrading treatment
Positive obligations
Absence of timely reaction by the Military to a conscript’s mental disorder: violation
Facts – Following two medical examinations in which he was found fit for military service the applicant was conscripted in June 1994. During the subsequent months, he was subjected to various disciplinary measures, including 24 days’ confinement, for inappropriate behaviour. He was later hospitalised and diagnosed with anxiety disorder, before being discharged as unfit in April 1995. He made a claim for damages, alleging a causal link between his military service and his illness, or alternatively that his illness had not been detected by the medical examiners who had declared him fit for service. However, his claim was rejected by the Ministry of Defence in a decision that was ultimately upheld by the Supreme Administrative Court in February 2011.
Law – Article 3: The Court was not convinced that the Italian authorities had acted negligently. Prior to his conscription, the applicant had undergone a medical examination which had found him fit for military service despite certain deficiencies. He had received a further examination upon being drafted. The applicant had not questioned the qualifications or the experience of the doctors who had made the assessments. Nor had he complained about his health or sought a second opinion. It was not, therefore, established that on the date of the applicant’s conscription the Italian authorities had substantial grounds for believing that his condition was such that he would be at real risk of proscribed treatment if he was drafted into the army.
However, as regards subsequent events, the Court noted that while during the first six months it had not occurred to the applicant’s superiors that his repeated unruliness might be the result of psychological issues, that possibility had become blatantly apparent to a new superior within just a few days of the applicant’s transfer to another unit. It was only then that his health and well-being had been adequately secured through medical examinations and assistance. The Government had not given details of the competencies of the applicant’s superiors, including whether there was any trained personnel capable of and responsible for detecting such situations. Nor had they pointed to any practice, rules or procedures for ensuring early identification of such situations and the steps to be taken in such circumstances. It had not been shown that the applicant had had access to psychological support or at least to some kind of examination or supervision. The applicant had therefore been left to his own devices for the initial six months (following less than a month’s training), during which period he had been subjected to treatment which, although perhaps not overwhelming for a person in good health, could, and in the present case apparently did, constitute an onerous burden on anyone lacking the requisite mental strength. While it could not be ruled out that even routine duties might in certain circumstances raise an issue, in the instant case the applicant had been repeatedly punished, for a total of 29 days, in a span of six months. Again, while the punishments at issue might have been of little consequence to healthy individuals, their effects on someone like the applicant might not only be detrimental in the long run – as appeared to have been the case for the applicant – but also very disturbing, with instantaneous effects on physical or mental health lasting throughout their duration. The medical reports of 1995 had found that the applicant was suffering from ‘dysphoria and borderline personality disorder’ and highlighted that the military service had caused him stress. Given his vulnerability, the suffering to which he had been subjected went beyond that of any regular conscript in normal military service. In the absence of any timely detection and reaction by the military, or of any framework capable of preventing such occurrences, the State had failed to ensure that the applicant performed his military service in conditions which were compatible with respect for his rights under Article 3.
Conclusion: violation (unanimously).
The Court also found a violation of Article 6 – 1 in account of the lack of a fair hearing before an impartial tribunal and a breach of the principle of equality of arms.
Article 41: EUR 40,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

48754/11 – Legal Summary, [2014] ECHR 174
Bailii
European Convention on Human Rights
Human Rights

Human Rights

Updated: 01 December 2021; Ref: scu.521857

Shchiborshch And Kuzmina v Russia (Legal Summary): ECHR 16 Jan 2014

ECHR Article 2
Positive obligations
Article 2-1
Effective investigation
Death of man suffering from psychiatric disorder as a result of police attempts to hospitalise him by force: violation
Facts – The applicants’ son suffered from a psychiatric disorder. In 2006 his father obtained a referral for his in-patient treatment and asked the police for assistance with his hospital placement. As the son was in a delirious state, he mistook the police for burglars and threatened them with a knife. The police tried to knock the knife out of his hand using their truncheons and the butt of a rifle, but he son ran to the kitchen and barricaded the door. After unsuccessful attempts to negotiate, the police ‘stormed’ the kitchen where the son put up resistance and was seriously wounded. He was taken to hospital in a coma and died shortly afterwards without regaining consciousness. The findings of the forensic examinations were conflicting as to the cause of his death: according to some reports, it was caused by craniocerebral trauma, according to others, by a slash wound to the neck. The criminal investigation was closed in 2010 on the grounds that the use of force had been in accordance with the law and that, given the conflicting findings of the forensic reports, there was insufficient evidence to hold the police responsible.
Law – Article 2
(a) Substantive aspect – While the craniocerebral trauma and slash wound to the neck were life-threatening injuries whose combination might have led to the lethal outcome, there was insufficient evidence to conclude that the injuries were directly caused by the police.
As regards the planning and control of the police operation, dealing with mentally disturbed individuals clearly required special training, the absence of which was likely to render futile any attempted negotiations with a person with a mental disorder as grave as that of the applicants’ son. This understanding was reflected in the domestic law, which while providing for police assistance to medical personnel when carrying out involuntary hospitalisation did not empower the police to act independently. No explanation had been presented to the Court as to why the police had taken action without being accompanied by qualified medical personnel. Emergency psychiatric assistance had only been called after several unsuccessful attempts to apprehend the applicants’ son. No explanation for the delay had been provided to the Court. The use of special equipment, such as rubber truncheons, in such circumstances did not comply with the police’s duty to minimise risks to the life and health. No evidence had been submitted to show that the son had posed such an immediate danger to himself or others as to require urgent measures, especially while he remained barricaded in the kitchen. In so far as he had wounded three police officers, the Court considered this to have been the result of the police’s own actions. Given that the applicant’s son was delirious and therefore unable to comprehend who the police officers were or what they wanted, the only appropriate course would have been to await the arrival of psychiatric assistance. However, the officers had persisted in their attempts to apprehend him as if they were dealing with a typical armed offender. The Court was particularly struck by the order to shoot to kill should he try to leave or attack the police, which, though not executed, was clearly excessive and demonstrated the officers’ inability to assess the situation and react appropriately. Moreover, there was no evidence that the storming operation had resulted from any kind of preliminary planning and consideration. There was nothing to show that the imminent arrival of the psychiatric emergency services had been taken into account, that the use of less violent means had been considered, or that the use of force had been given any prior consideration or assessment. The applicants’ son had a history of involuntary hospitalisation requiring police assistance, as on each occasion he had resisted his placement in hospital. Therefore, the situation had not been new and the police should have been able to foresee that they would be faced with resistance and should have prepared accordingly.
In sum, even assuming that the lethal injuries were the consequence of the applicants’ son’s own actions, the Court considered that to be the result of the uncontrolled and unconsidered manner in which the police operation had been carried out. The measures taken by the police had lacked the degree of caution to be expected from law-enforcement officers in a democratic society. The operation had not been organised so as to minimise to the greatest extent possible any risk to the life of the applicants’ son.
Conclusion: violation (unanimously).
(b) Procedural aspect – The investigating authorities had not addressed the issue of the planning and control of the operation. In particular, they had not investigated why the police had acted on their own authority in the absence of qualified medical personnel, contrary to domestic law. While the investigation had assessed the use of force and special equipment, like the police officers the investigating authorities appeared to have considered the situation as though it had involved a typical armed offender, with no regard to the mental condition of the applicants’ son. Furthermore, the investigating authorities had made no assessment of the manner in which the decision to storm the flat had been taken. Given the investigation’s failure to address such crucial points, despite the large volume of investigative measures carried out, it had fallen short of the thoroughness required by Article 2.
Conclusion: violation (unanimously).
The Court also found a violation of Article 13 since the applicants had been denied an effective remedy in respect of their complaint under Article 2.
Article 41: EUR 45,000 jointly in respect of non-pecuniary damage; EUR 2,550 jointly in respect of pecuniary damage.

5269/08 – Legal Summary, [2014] ECHR 175
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal SummaryShchiborshch And Kuzmina v Russia ECHR 16-Jan-2014
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 December 2021; Ref: scu.521858

Flynn and Another v Secretary of State for Communities and Local Government and Another: Admn 20 Feb 2014

The claimant travellers had been moved from one site, and retationed their caravans on a nearby track. The Council served an enforcement notice alleging unlawful change of use to residential purposes. The Claimants contended that the decision was unlawful in that the Defendant failed to consider whether Mrs Flynn was a relevant occupier as she had an implied licence to occupy the land. Further the Claimants contended that the provisions of section 174 of the 1990 Act must be interpreted so as to enable Mrs Flynn to appeal in order to avoid a breach of her right to respect for her home and private life under Article 8.
Held: The defendant had erred in failing first to establish whether the claimant had an implied licence to occupy the land. Given the limited investigation undertaken by the court the correct thing to do was to quash the decision and remit it to the Defendant.

Lewis J
[2014] EWHC 390 (Admin), [2014] 1 WLR 3270
Bailii
Town and Country Planning Act 1990 174, European Convention on Human Rights 8
England and Wales

Planning, Human Rights

Updated: 30 November 2021; Ref: scu.521576

Regina v Secretary of State for Health, Ex Parte Lally: QBD 26 Oct 2000

Tight restrictions had been placed on the circumstances under which children might visit prisoners in high security hospitals who were seen to be a risk to them having been convicted of murder or similar or who were schedule 1 offenders. The restrictions were valid, since they always allowed visits where a court had ordered contact, and there was no clear line to be drawn between different classes of convicted murderers. Contact was to be assessed in accordance with the child’s best interests, and breaks in contact with remoter family members such as nephews and nieces, need not be considered interference with family life.

Times 26-Oct-2000
European Convention on Human Rights
England and Wales

Children, Human Rights, Family

Updated: 29 November 2021; Ref: scu.85486

The Secretary of State for Justice v MM: CA 29 Mar 2017

Power of FTT to deprivie patient of liberty

Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
Held: The orders made by the UT were set aside. There is no ‘umbrella’ power that can be exercised by the tribunal to authorise a patient’s deprivation of liberty outside hospital. It is accordingly inappropriate for a tribunal to do so, whether by direct or indirect means (for example, by the use of declarations to provide for an asserted lacuna in the statutory scheme). There is no lacuna in the scheme. However practicable and effective it may be to provide for a tribunal to have such a power, for example to improve access to justice to a specialist and procedurally appropriate adjudication, Parliament has not provided for the same.

Sir James Munby, President, Lady Justice Gloster, Vice-President, and Sir Ernest Ryder, Senior President
[2017] EWCA Civ 194
Bailii
Mental Health Act 1983
England and Wales
Citing:
CitedSecretary of State for Justice v KC and C Partnership NHS Foundation Trust UTAA 2-Jul-2015
Mental Health : All
The local authority had sought an order under the 2005 Act seeking a personal welfare order on the basis that it would be in KC’s best interests for him to move to a proposed placement (the Placement) on the terms of a care . .
CitedP (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
CitedGhaidan 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 . .
Appeal fromMM v WL Clinic and Another UTAA 23-Nov-2015
Mental Health : All – whether for the purposes of Article 5 a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a . .
CitedSecretary of State for the Home Department, Regina (on the Application of) v Mental Health Review Tribunal Admn 20-May-2002
The Court considered the meaning of ‘discharge’ from a mental health hospital. Elias J held that it meant ‘discharge from detention in hospital’, so that there could be a discharge on condition of residence in another hospital: but he also held that . .

Cited by:
Appeal fromSecretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Health, Human Rights

Updated: 29 November 2021; Ref: scu.581298

Winterwerp v The Netherlands: ECHR 24 Oct 1979

A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure.
Held: Article 5(1)(a) is concerned with the question whether the detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation. The Court defined the conditions to be met before the detention of a person may be justified on grounds of mental illness: ‘In the Court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority – that is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.’ but ‘it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation . . . Mental illness may entail restricting or modifying the manner of the exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.’

[1979] 2 EHRR 387, [1979] ECHR 4, 6301/73
Bailii
European Convention on Human Rights 5 6 8
Human Rights
Cited by:
CitedA v The Scottish Ministers PC 15-Oct-2001
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
CitedGiles, 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. . .
CitedRegina v Secretary of State for the Home Department and Another ex parte IH HL 13-Nov-2003
The appellant had been found unfit to plead after assaulting his son, and he had been detained under the 1964 Act. He alleged his detention was in breach of his right to a fair trial. His release had been authorised subject to the appointment of a . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedB, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
CitedWard v Commissioner of Police for the Metropolis and others HL 5-May-2005
The claimant had been taken under warrant to a mental hospital, but was found not to be suffering any mental illness. She complained that the arrest was unlawful, since the police officer had not been accompanied by the people named on the warrant. . .
CitedRegina 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 . .
CitedMH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedMasterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
See AlsoWinterwerp v The Netherlands ECHR 27-Nov-1981
Hudoc Judgment (Just satisfaction) Struck out of the list (friendly settlement) . .
CitedIn re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
CitedJuncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
CitedSK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
CitedG v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
CitedG v E and Others CA 4-May-2010
E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of . .
CitedG v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
CitedSherry v The Queen PC 4-Mar-2013
Discretion as to credit for remand time
(Guernsey) In 1980 the appellant had been sentenced to three months imprisonment. He had spent 10 days on remand, but no allowance was given for that time. He gave notice of appeal, but after being released on open remand, he failed to appear at his . .
CitedIn re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
inreX_dolCoP1408
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
CitedModaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .
CitedThe Health Service Executive of Ireland v PA and Others CoP 3-Jun-2015
hsen_paCoP201506
The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton.
Held: On an . .
CitedSecretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Leading Case

Updated: 29 November 2021; Ref: scu.164887

Shchiborshch And Kuzmina v Russia: ECHR 16 Jan 2014

5269/08 – Chamber Judgment, [2014] ECHR 52
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal SummaryShchiborshch And Kuzmina v Russia (Legal Summary) ECHR 16-Jan-2014
ECHR Article 2
Positive obligations
Article 2-1
Effective investigation
Death of man suffering from psychiatric disorder as a result of police attempts to hospitalise him by force: . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 28 November 2021; Ref: scu.520055

Ungvary And/Et Irodalom Kft v Hungary: ECHR 3 Dec 2013

Freedom of expression

Award of damages against a historian and a publisher for alleging that a public official had collaborated with the state security services during the Communist era: violation
Facts – In 2007 a literary and political weekly owned by Irodalom Kft (the second applicant) published a study by a historian, Mr Ungvary (the first applicant). The article stated that a named judge of the Constitutional Court had worked during the Communist era as an official contact of the State-security service, written reports for the service, and advocated hard-line policies. After being sued by the judge the second applicant printed a rectification. However, the first applicant repeated his allegations in interviews and in a book he co-authored. The judge then brought a civil action in defamation against both applicants, which resulted in a judgment of the Supreme Court in 2010 in which the applicants were held jointly and severally liable in damages in the sum of EUR 7,000, and the first applicant was ordered to pay an additional EUR 3,500.
Law – Article 10: The interference with the applicants’ rights had been prescribed by law and pursued the legitimate aim of protecting the judge’s reputation. The Court went on to consider whether the interference had been necessary in a democratic society.
(a) As regards the first applicant – The Supreme Court had not assessed the impact of the allegations on the judge’s personality rights in the light of the role of the press or considered the fact that many of the allegations regarding his involvement in the actions directed against a student peace movement in the 1980s (Dialogus) had been proved true. It was undisputed that the judge had had local responsibilities in the Communist party and as a party secretary had produced reports on the Dialogus affair. The Supreme Court had understood those activities as belonging to his responsibilities within the party, without considering their relation to the goals of the State security service. Such a selective interpretation of the impugned statements, with the resultant burden of proof incumbent on the first applicant, was hardly compatible with the demands of the ‘most careful scrutiny’ applicable in the instant case.
Furthermore, the first applicant’s statements concerned Hungary’s recent history and sought to shed new light on the functioning of the secret service and, in particular, its reliance on public and party officials. Various issues related to the Communist regime still appeared to be open to ongoing debate between researchers, in the general public as well as in Parliament, and as such should be a matter of general interest in contemporary Hungarian society. The publication had been based on research by the first applicant, a known historian, who had relied on material available in the security services’ historical archives. It had therefore deserved the high level of protection guaranteed to political discourse and the press, but those considerations were absent from the Supreme Court’s judgment.
Moreover, the personal moral integrity of holders of high office was a matter of public scrutiny in a democratic society. The publication did not concern the judge’s personal life but his public behaviour, a matter which was to some extent related to his position as a member of the Constitutional Court in 2007-08. Although the article had asserted that the judge had cooperated as an ‘official contact’ with the security services of the previous regime, that criticism had been limited to his role as a Communist party official in the 1980s and had not focused on his contemporary professional conduct as a Constitutional Court judge. The judge had not concealed his past position within the Communist Party and as a public figure had to tolerate stronger criticism by the first applicant acting in his capacity as a historian.
The impugned article had presented a scholarly position and, although it used excessive language, it was not sensationalist. The judge had had the opportunity to comment on the allegations and a further rectification had been published in the magazine. He had not been accused of criminal wrongdoing, and there was no indication that he had suffered any negative consequences in his professional activities.
While the first applicant had been subjected to civil-law, rather than criminal, sanctions, he had been ordered to pay a considerable amount of money in damages and legal costs. This had affected his professional credibility as a historian and been capable of producing a chilling effect. Since rectification of the statement of facts had already been ordered, the subsequent sanctions had not been strictly necessary.
Accordingly, the domestic courts had not convincingly established a proper balance between the personality rights of a public figure and the first applicant’s right to freedom of expression and the reasons relied on could not be regarded as sufficient and relevant justification for the interference with that right.
Conclusion: violation (four votes to three).
(b) As regards the second applicant – The findings regarding the lack of a proper balance between the competing rights also held true in respect of the second applicant, even if the sanction imposed on it was not a matter of concern per se. The second applicant had published the judge’s comments on the first applicant’s statements in its next weekly edition, thus enabling readers to form their own opinion.
Publishers were understandably motivated by considerations of profitability and holding them responsible for publications often resulted in proprietary interference in the editorial process. In order to enable the press to exercise its ‘watchdog’ function, it was important that the standards of liability of publishers for publication be such that they should not encourage censorship of publications by the publisher. The consideration of liability-related chilling effect was of relevance in the finding of the proper standard of care.
Since access to the State security archives was restricted, the information that had served as the factual basis for the allegations had, in all likelihood, not been accessible for verification. Moreover, since the use of the archives required special professional knowledge, there had been no reason for the second applicant to call into question the accuracy of an article written by a historian who specialised in state security affairs. The second applicant had thus acted in accordance with the rules governing journalistic ethics.
Conclusion: violation (unanimously).
Article 41: EUR 7,000 to the first applicant in respect of pecuniary damage; EUR 3,000 to the second applicant in respect of non-pecuniary damage plus, in respect of pecuniary damage, any sums it had paid pursuant to the domestic judgment.

64520/10 – Legal Summary, [2013] ECHR 1361
Bailii
European Convention on Human Rights
Human Rights

Human Rights

Updated: 28 November 2021; Ref: scu.519694

Vlad And Others v Romania (Legal Summary): ECHR 26 Nov 2013

ECHR Article 46-2
Execution of judgment
Measures of a general character
Respondent State encouraged to take further measures to provide genuine effective relief for violations of the right to a fair trial within a reasonable time
Facts – In their applications to the European Court, the three applicants complained of the lack of an effective domestic remedy in respect of delays in civil and criminal proceedings in which they had been involved before the domestic courts. The applications were lodged in 2006 and 2007 and the Government argued that legislation had since been introduced to provide remedies in such cases: Law no. 202/2010, which amended the 1993 Code of Civil Procedure and the 1997 Code of Criminal Procedure pending the entry into force and implementation of new codes of procedure, and Articles 522 to 526 of the new Code of Civil Procedure, which provided a complaints procedure for delays (but applied only to proceedings instituted after 15 February 2013). The Government also submitted that a number of recent cases based on the direct applicability of the Convention in Romania demonstrated that litigants now had access to compensation in length-of-proceedings cases.
Law – Article 6 – 1: In each of the applicants’ cases the length of the proceedings had been excessive and failed to meet the ‘reasonable-time’ requirement of Article 6.
Conclusion: violation (unanimously).
Article 13: The second and third applicants complained that they had not had effective remedies in respect of the length of the proceedings in which they were involved. Although the Government had argued that the changes to the national legal system and the direct applicability of the Convention meant that litigants now had an effective remedy, they had failed to produce examples of domestic cases in which litigants had been able to access an effective remedy in length-of-proceedings cases. Furthermore, both the change to the law and the new Code of Civil Procedure had come into force only after the domestic courts had already dealt with the majority of the proceedings brought by the two applicants concerned.
Conclusion: violation (unanimously).
Article 46: Since its first judgment concerning the length of civil proceedings in Romania*, the Court had adopted decisions and judgments in some 200 Romanian cases dealing with allegations of breaches of the ‘reasonable-time’ requirement laid down in Article 6 – 1 in relation to civil and criminal proceedings. A further 500 cases were currently pending. Those figures indicated the existence of a systemic problem, one the Parliamentary Assembly of the Council of Europe had noted in 2011 was of grave concern and required tackling as a matter of priority.**Although new legislation had been introduced, the Government had not submitted any information in reply to questions that had been raised by the Committee of Ministers regarding, in particular, the procedural rules applicable to length-of-proceedings complaints under the new Code of Civil Procedure, the remedies available in criminal proceedings or the possibility of introducing a specific compensatory remedy.*** In any event, the measures aimed at ensuring the speedy examination of civil cases applied only to proceedings instituted after 15 February 2013 and could not remedy the problem of delays accrued before that date.
Accordingly, in view of the extent of the recurrent problem and of the weaknesses and shortcomings of the current remedies, Romania was encouraged to either amend the existing range of legal remedies or add new remedies, such as a specific and clearly regulated compensatory remedy, in order to provide genuine effective relief for violations of the right to a fair trial within a reasonable time.
Article 41: Sums ranging from EUR 2,340 to EUR 7,800 to each applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

40756/06 – Legal Summary, [2013] ECHR 1309
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal SummaryVlad And Others v Romania ECHR 26-Nov-2013
. .
See AlsoVlad And Others v Romania ECHR 17-Mar-2015
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 27 November 2021; Ref: scu.519061

Pichkur v Ukraine (Legal Summary): ECHR 7 Nov 2013

ECHR Article 14
Discrimination
Termination of payment of retirement pension on the ground that beneficiary was permanently resident abroad: violation
Facts – In 1996 the applicant, who was then living in Ukraine, retired and began to receive a retirement pension. He emigrated to Germany in 2000. In 2005, after discovering that the applicant was now permanently resident abroad, the Ukrainian authorities decided to terminate his pension payments in accordance with the relevant provisions of the General State Pension (Obligatory Insurance) Act. The Constitutional Court of Ukraine declared those provisions unconstitutional on 7 October 2009. In 2011 a Ukrainian district court ordered the authorities to resume payment of the applicant’s pension with effect from the date of the Constitutional Court’s judgment. The district court’s judgment was upheld on appeal.
Law – Article 14 in conjunction with Article 1of Protocol No. 1: The applicant could no longer claim to be a victim of the alleged violation for the period after 7 October 2009. As to the preceding period, had he continued to reside in Ukraine or returned to live there, he would have continued to receive a pension. His interests thus fell within the scope of Article 1 of Protocol No. 1, which was sufficient to render Article 14 applicable. The applicant had complained of a difference in treatment on the basis of his place of residence, which constituted an aspect of personal status for the purposes of Article 14. The instant case had to be distinguished from the Carson v. the United Kingdom judgment*, in which the difference in treatment had concerned the lack of indexation of existing pensions for persons residing in certain foreign States, while nobody had questioned the applicants’ entitlement to the pension as such. In the instant case, however, the entitlement to the pension itself had been made dependent on the applicant’s place of residence, resulting in a situation in which the applicant, having worked for many years in Ukraine and having contributed to the pension scheme, had been deprived of it altogether, on the sole ground that he no longer lived there. He had been in a relevantly similar situation to pensioners living in Ukraine. No justification for the difference in treatment had ever been advanced by the authorities. The Government had not relied on considerations of international cooperation in that context. The rise in population mobility, higher levels of international cooperation and integration, and developments in the banking-services and information-technology sectors no longer justified technically motivated restrictions in respect of beneficiaries of social-security payments living abroad. The difference in treatment at issue had therefore been in breach of Article 14 read in conjunction with Article 1 of Protocol No. 1.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of pecuniary and non-pecuniary damage.

10441/06 – Legal Summary, [2013] ECHR 1313
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoPichkur v Ukraine ECHR 21-Sep-2010
. .

Cited by:
Legal SummaryPichkur v Ukraine ECHR 7-Nov-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 27 November 2021; Ref: scu.519056

Amos, Regina (on The Application of) v Maidstone Crown Court and Another: CA 6 Nov 2013

The court was asked whether the process of condemnation and forfeiture of goods pursuant to section 139 and Schedule 3 of the Customs and Excise Management Act 1979 is civil or criminal in nature for the purposes of Article 6 of the European Convention on Human Rights.

Richards, Elias LJJ
[2013] EWCA Civ 1643
Bailii
European Convention on Human Rights 6
England and Wales

Customs and Excise, Human Rights

Updated: 27 November 2021; Ref: scu.519016

De Luca v Italy: ECHR 24 Sep 2013

Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Inability to recover judgment debt from local authority in receivership: violation
Facts – In December 1993 the municipality of Benevento declared itself insolvent. An extraordinary liquidation committee (the OSL) was entrusted with the management of its finances. In a judgment given in November 2003 further to an action in damages brought in 1992 the local court ordered the municipality to pay the applicant damages in the amount of EUR 17,604.46, plus statutory interest and compensation to offset inflation. However, under a decree passed in 2000, from the declaration of insolvency until final approval of the accounts no enforcement proceedings could be brought in respect of debts on the list drawn up by the OSL. Nor could the insolvent local authority be required to pay statutory interest on its debts or compensation for inflation. In June 2005 the OSL acknowledged that the municipality owed the applicant EUR 42,028.58. In February 2006 the OSL offered the applicant a friendly settlement in the amount of 80% of the outstanding debt. The applicant declined the offer.
Law – Article 1 of Protocol No. 1: Following the declaration of insolvency it had been impossible for the applicant to bring enforcement proceedings against the municipality of Benevento, which had failed to honour its debts, in breach of the applicant’s right to the peaceful enjoyment of his possessions. By failing to enforce the Benevento court’s judgment the domestic authorities had prevented the applicant from receiving money he could reasonably have expected to receive. It was true that the OSL had offered the applicant a friendly settlement, to the tune of 80% of the sum owed to him; but had he accepted that offer the applicant would have lost the other 20% as well as forfeiting any interest or compensation for inflation. The reasons given by the Government to justify this interference with the applicant’s right to the peaceful enjoyment of his possessions were the insolvency of the municipal authority and the concern to guarantee that all creditors were treated equally in recovering their debts. However, a local authority could not use financial difficulties as an excuse not to honour its obligations arising from a final judgment against it. The debt in this case was that of a local authority, a State body, ordered by a court to pay damages. In that respect this case differed from that of Back v. Finland*, which concerned social-policy plans to reduce the salaries and pensions of public servants.
Conclusion: violation (unanimously).
Article 41: EUR 50,000 for pecuniary and non-pecuniary damage.

43870/04 – Chamber Judgment (French text), [2013] ECHR 854, 43870/04 – Legal Summary, [2013] ECHR 1252
Bailii, Bailii
European Convention on Human Rights, European Convention on Human Rights
Human Rights

Human Rights

Updated: 26 November 2021; Ref: scu.518821