Tag: Human Rights

Blackman, Regina v: CACD 22 May 2014

The appellant had been convicted of murder. As an Army sergeant serving in Afghanistan, he had killed a captured insurgent.

Lord Thomas of Cwmgiedd, CJ
[2015] 1 All ER 148, [2015] 1 WLR 1900, [2014] EWCA Crim 1029, [2014] 2 Cr App R 18
Bailii
England and Wales
Cited by:
See Also – Blackman, Regina v CACD 15-Mar-2017
The defendant appealed against his conviction for murder. As an army officer serving in Afghanistan he had killed an injured captured insurgent.
Held: The defendant had at the time of the offence suffered a recognised psychiatric condition, . .
See Also – Blackman, Regina v (Media) CACD 28-Mar-2017
The defendant officer appealed against his conviction for murder. Whilst serving a s an officer in Afghanistan, he had killed a captured soldier. That conviction had been quashed and a conviction for manslaughter on diminished responsibility . .
See Also – Blackman, Regina v (Sentence) CACD 28-Mar-2017
Sentence – manslaughter of prisoner
The defendant whilst serving in Afghanistan had killed a prisoner. His appeal against his conviction for murder had been successful, and a conviction for manslaughter had been substituted on the basis that he was at the time suffering a recognised . .

Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces, Human Rights

Updated: 03 December 2021; Ref: scu.525766

Oruk 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 exploded in a village near a military firing range containing unexploded ordnance, killing six children, including the applicant’s son. A rough sketch of the place where the explosion took place was made by the gendarmerie, many statements were taken and an expert’s report commissioned. In December 1993 the public prosecutor declined jurisdiction and transmitted the case file to the military prosecutor’s office. In December 1995 the military prosecutor discontinued the proceedings. The applicant lodged an appeal against that decision in June 2003, but in January 2004 the military tribunal dismissed her appeal.
Law – Article 2 (substantive limb): The present case concerned the exercise of military activity under the responsibility of the State, the dangerousness of which was not in doubt and was fully known to the domestic authorities. The firing range was not surrounded by a fence or barbed wire, it had no warning signs and a panel had been set up only after the incident that claimed the lives of six children. In view of the danger of unexploded military ordnance, it was primarily the responsibility of the military authorities to ensure the safety and supervision of the area to prevent access to it and minimise the risk of the ordnance being moved. To this end, signs warning of the dangerous nature of the area should have been put in place to clearly delineate the perimeter of the ground at risk. In the absence of such signs, it was for the State to ensure that the firing range was cleaned up in order to eliminate all unexploded ordnance. The fact that the villagers were informed through the village muhtar (chief) about the firing exercises and the presence of unexploded ordnance could not be regarded as sufficient to exempt the national authorities from their responsibility towards the people living near such training areas. Such information was not, in any event, likely to reduce significantly the risks in question, because the military authorities themselves were not able to locate the ordnance. Having regard to the seriousness of the danger, the domestic authorities should have ensured that all civilians living near the military firing range were warned of the risks that they incurred from unexploded ordnance. The authorities should have particularly made sure that children, who were more vulnerable than adults, were fully aware of the dangers of such devices that they were likely to play with, believing them to be harmless. The shortcomings in the present case in terms of safety had been such that they exceeded mere negligence on the part of army personnel in the locating and destruction of unexploded ordnance.

In addition, and in view of the seriousness of the shortcomings observed, the violation of right to life of the applicant’s son could not be remedied merely by an award of damages. The applicant could not therefore be criticised for failing to use the compensatory remedies relied on by the Government in their plea of non-exhaustion of domestic remedies. The Government’s preliminary objection to that effect was thus rejected.
In conclusion, the national authorities had an obligation, which they had failed to fulfil, to take the appropriate measures as a matter of urgency in order to protect the lives of the people living near the firing range, independently of any action by the applicant herself, and to provide an explanation as to the cause of death of her son and any liability in that connection through a procedure initiated spontaneously.
Conclusion: violation (five votes to two).
Article 41: EUR 50,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

33647/04 – Legal Summary, [2014] ECHR 472
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Summary – Oruk v Turkey (Judgment) ECHR 4-Feb-2014
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 03 December 2021; Ref: scu.525409

Montoya v France (LS): ECHR 23 Jan 2014

ECHR Article 14
Discrimination
Refusal to award ‘recognition allowance’ to repatriated veteran of the Algerian war on the grounds of his European, as opposed to local, origin: no violation
Facts – The applicant, who was born in Algeria in 1942, had ordinary civil status applicable to persons of European origin, as opposed to local-law civil status applicable to the local Arab and Berber population. During the Algerian war he had joined one of the units of the French army. He left for France when Algeria gained independence and subsequently applied to the administrative authorities (prefet) for a ‘recognition allowance’ (allocation de reconnaissance) payable to repatriated former members of civilian irregular units and comparable groups. His claim was rejected in November 2004 on the ground that he was ‘a repatriated person of European origin’. His appeals were unsuccessful.
Law – Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1: As a former member of an irregular civilian unit who had served in Algeria, was over 60 years old, was domiciled in France and was of French nationality, the applicant would had an ‘enforceable’ right to receive the allowance if, prior to being repatriated, he had had local-law civil status rather than ordinary civil status. The French courts had held in an earlier case that the allowance qualified as a possession within the meaning of Article 1 of Protocol No. 1. The applicant’s interests fell within the scope of that provision and the respect for peaceful enjoyment of possessions guaranteed by it, which was sufficient to render Article 14 of the Convention applicable.
The difference in treatment complained of by the applicant between former auxiliaries, who had had local-law civil status, and those of European origin, who had had ordinary civil status, disclosed a distinction between former auxiliaries of Arab or Berber origin and those of European origin. That distinction was applied in respect of persons who had in common the fact that they were all former members of irregular units to whom the French authorities had had recourse during the Algerian war, and had been repatriated to France at the end of the war. Whether they had been of European or Arab or Berger origin, they were in a comparable situation regarding demands for recognition by France of their self-sacrifice for the country – a similarity which France had, moreover, acknowledged in awarding them all, without distinction, the status of war veteran – and the suffering they had endured.
The legislature had considered it necessary to make additional provision for special assistance for former auxiliaries of Arab or Berber origin, having regard to the particular difficulties and suffering they had endured. France had been justified in considering it legitimate to specifically recognise the self-sacrifice and suffering of former auxiliaries of Arab or Berber origin. Noting also that the recognition allowance was only one of the means by which France had recognised the self-sacrifice of former auxiliaries and the suffering they had endured, and having regard to the margin of appreciation available to the French authorities in that connection, it was not disproportionate to provide for an allowance reserved for former auxiliaries of Arab or Berber origin for the purposes of achieving that aim. The difference of treatment in question could not therefore be considered to lack objective and reasonable justification.
In February 2011 the Constitutional Council had declared part of the legislation in question contrary to the Constitution. Accordingly, as the Conseil d’Etat had observed in its decisions of March 2013, the restriction on the benefit of the allowance to former auxiliaries who had had local-law civil status had been repealed, with effect from the date of publication of the decision of the Constitutional Council, that is, in February 2011. However, the Constitutional Council’s decision and the consequences of it for the future did not in any way alter the Court’s conclusion, which concerned a situation that had been assessed prior to that decision.
Conclusion: no violation (unanimously).

62170/10 – Legal Summary, [2014] ECHR 406
Bailii
European Convention on Human Rights
Human Rights
Citing:
Main judgment – Montoya v France ECHR 23-Jan-2014
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 02 December 2021; Ref: scu.523802

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

Hasan and Chaush v Bulgaria: ECHR 2 Dec 2011

[2011] ECHR 2133
Bailii, Bailii
Citing:
Principal judgment – Hasan 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

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

Pentikainen v Finland: ECHR 4 Feb 2014

11882/10 – Chamber Judgment, [2014] ECHR 106
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Pentikainen 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:
Summary – Oruk 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 Summary – Shchiborshch 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

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:
Cited – A 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 . .
Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Cited – Regina 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 . .
Cited – Regina 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: . .
Cited – B, 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 . .
Cited – Ward 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. . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – MH 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 . .
Cited – AN, 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 . .
Cited – Masterman-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 Also – Winterwerp v The Netherlands ECHR 27-Nov-1981
Hudoc Judgment (Just satisfaction) Struck out of the list (friendly settlement) . .
Cited – In 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 . .
Cited – Juncal, 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 . .
Cited – SK (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 . .
Cited – G 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 . .
Cited – G 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 . .
Cited – G 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, . .
Cited – Sherry 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 . .
Cited – In 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 . .
Cited – Modaresi, 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 . .
Cited – The 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 . .
Cited – Secretary 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 Summary – 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: . .

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