Tag: Human Rights

Nizomkhon Dzhurayev v Russia: ECHR 3 Oct 2013

31890/11 – Chamber Judgment, [2013] ECHR 909
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Nizomkhon Dzhurayev v Russia (LS) ECHR 3-Oct-2013
ECHR Article 3
Expulsion
Positive obligations
Failure by Russian authorities to protect Tajik national in their custody from forced repatriation to Tajikistan despite risk of proscribed . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 21 November 2021; Ref: scu.516406

Yandiyev And Others v Russia (CJ): ECHR 10 Oct 2013

43811/06 – Chamber Judgment, [2013] ECHR 940, 34541/06, 1578/07
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Yandiyev And Others v Russia (LS) ECHR 10-Oct-2013
ECHR Article 2-1
Life
Effective investigation
Failure to effectively investigate civilian disappearances in Ingushetia: violation
Facts – The applicants were close relatives of three men . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 21 November 2021; Ref: scu.516419

Regina v R (Sentencing: Extended licences): CACD 25 Jul 2003

The imposition of an extended period of licence in respect of offences committed before 1992 did not infringe the defendant’s human rights. The defendant had been convicted of offences from 1976 and 1982. The commencement date for the 1991 Act was 1 October 1992.
Held: The true nature of the provision was preventive, to ensure that some control was retained over a sex offender released early on licence, rather than punitive. The JT case had been decided without full reference to reported cases and was given per incuriam.

Kennedy LJ, Pitchers J
Times 04-Aug-2003
Powers of Criminal Courts (Sentencing) Act 2000 86, European Convention on Human Rights A-7, Criminal Justice Act 1991 44
England and Wales
Citing:
Cited – Welch v United Kingdom ECHR 15-Feb-1995
The applicant was convicted in 1988 of drug offences committed in 1986. The judge passed a sentence of imprisonment but imposed a confiscation order pursuant to an Act that came into force in l987.
Held: The concept of penalty in Article 7 was . .
Cited – Regina v Field (Brian John); Regina v Young (Alfred) CACD 12-Dec-2002
Each applicant having been convicted of indecent assaults involving children, now appealed an order banning them from working with children.
Held: The orders were not penalties within article 7. The order was available in the absence of a . .
per incuriam – Regina v JT CACD 2003
The provisions of section 68 were punitive, and therefore could not be read to have retrospective effect. . .
Cited – Hogben v United Kingdom ECHR 3-Mar-1986
. .
Cited – Regina v Hodgson CACD 27-Jun-1996
Court to make use of control over sex offenders in appropriate cases by the use of extended licences. . .
Cited – Regina (Uttley) v Secretary of State for the Home Department Admn 8-Apr-2003
The court had to consider consider whether the application of statutory provisions requiring a prisoner to be released on licence, that were not applicable at the date of the offence, violated Article 7. The claimant had been sentenced to 12 years’ . .
Cited – McFetrich, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Jun-2003
The defendant had been convicted of murder in Scotland. He requested a transfer to an English prison. The trial judge recommended a tariff of eight years which was eventually set at 12 years by the respondent. That figure also exceeded the maximum . .
Cited – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Ibbotson v United Kingdom ECHR 1998
While the applicant was serving a sentence for possession of obscene material, the 1997 Act came into force, requiring him to register with the police. It was argued that the passing of the Act and its impact on the offender involved a ‘penalty’ . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 20 November 2021; Ref: scu.185761

Attorney General’s Reference (No 3 of 1999) (Lynn): HL 15 Dec 2000

A DNA sample had been wrongfully retained after the suspect had been acquitted, and the sample had been used in a later investigation to identify him. A subsequent sample had been taken, and the result of that second test had been used as evidence at trial. The defendant objected, and claimed that it had been gained and used in breach of the section. The original sample itself was not relied upon at trial. The issue was whether the unlawful retention so tainted the investigation process, that the later sample should not have been admitted. The two parts of the section were strikingly different. After an acquittal the sample should have been destroyed. Part b merely prohibited the use in an investigation, but that did not go on in turn to make inadmissible subsequent evidence. To the extent that such an interpretation was an interference with the suspect’s private life, the interference, as qualified, was necessary to ensure prosecution of serious crime. At trial the accused had full opportunity to contest the reliability of the DNA evidence. There was no principle under the Convention that unlawfully obtained evidence was not admissible. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. Serious crime should be effectively investigated and prosecuted, with fairness to all. This requires the court to consider three interests, the position of the accused, the victim, and the public. The austere interpretation of the Court of Appeal conflicted with the plain words of the statute and produces results which are contrary to good sense. A consideration of the public interest reinforces the interpretation adopted. The question to be asked in respect of the failure to comply with a statutory requirement was to focus on the consequences of non-compliance.

Lord Steyn
Gazette 15-Feb-2001, Times 15-Dec-2000, [2000] UKHL 63, [2001] 2 WLR 56, [2001] 2 AC 91
House of Lords, Bailii
Police and Criminal Evidence Act 1984 64
England and Wales
Citing:
Appeal from – Attorney General’s Reference No 3 of 1999 (Lynn) CACD 26-Mar-1999
There was an obligation to destroy fingerprints and samples in respect of persons who were acquitted. Nevertheless, if such material was unlawfully retained, it could be used for the purpose of investigating another offence, and the evidence could . .
Appeal from – Regina v B (Attorney-General’s Reference No 3 of 1999); Regina v Weir CACD 26-May-2000
Where a defendant gave a sample of DNA during an investigation, but the sample was not destroyed on his acquittal, evidence obtained from a cross match relating to a different crime was not admissible. The statute requires the samples to be . .

Cited by:
Cited – Sekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
Cited – Russell v Devine (On Appeal from the Court of Appeal Northern Ireland) HL 8-May-2003
The House was asked whether a specimen of blood required under the regulations, having been requested at a hospital or health centre had to be taken there.
Held: The health centre was not a hospital within the regulations. However the request . .
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 – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – R, Regina v CACD 4-Apr-2008
The defendant appealed his conviction for rape, saying that the complainant’s evidence had wrongfully been allowed to be given over a remote video link. Provisions to allow such means of giving evidence had been intended to be phased in only as . .
Cited – Regina v Sargent HL 25-Oct-2001
When a telephone engineer used his position to make unauthorised telephone intercepts, and produced apparent evidence of criminal activity, he was, under the Act, a person engaged in providing a public communications system, and the recordings were . .
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: . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Evidence

Updated: 20 November 2021; Ref: scu.77969

Vona v Hungary (Legal Summary): ECHR 9 Jul 2013

ECHR Article 11-1
Freedom of association
Dissolution of association involved in anti-Roma rallies and paramilitary parading: no violation
Facts – The applicant was the chair of the Hungarian Guard Association (‘the Association’), which was founded in May 2007 by ten members of a political party called Movement for a Better Hungary with the stated aim of preserving Hungarian traditions and culture. In July 2007 the Association founded the Hungarian Guard Movement (‘the Movement’), whose objective was defined as ‘defending Hungary, defenceless physically, spiritually and intellectually’.
Shortly after its foundation, the Movement started to carry out activities which were not in accordance with its charter, including organising the swearing-in of fifty-six guardsmen in Buda Castle in August 2007. The authorities requested the Association to put an end to its unlawful activities. In November 2007 the applicant notified the authorities that the unlawful activities had ceased and that the Association’s charter would be modified accordingly. However, members of the Movement dressed in uniforms subsequently held rallies and demonstrations throughout Hungary, including in villages with large Roma populations, calling for the defence of ethnic Hungarians against so-called ‘Gipsy criminality’. Following an incident in December 2007 when the police refused to allow a march to pass through a street inhabited by Roma families, the authorities sought a court order for the dissolution of the Association. This was granted in December 2008, and in July 2009 following two further demonstrations organised by the Movement, the the scope of that order was extended to the latter in a judgment that was upheld by the Supreme Court.
Law
(a) Admissibility – Article 17: The Government had argued that the application should be declared inadmissible as being incompatible ratione materiae with the Convention in the light of Article 17, because the Association provided an institutional framework for expressing racial hatred against Jewish and Roma citizens. The Court noted, however, that the applicant’s complaint concerned the dissolution of an association essentially on account of a demonstration which had not been declared unlawful at the domestic level and had not led to any act of violence. Those activities did not prima facie reveal any act aimed at the destruction of any of the rights and freedoms set forth in the Convention or any intention on the part of the applicant to provide an apology or propaganda for totalitarian views. Accordingly, the application did not constitute an abuse of the right of petition for the purposes of Article 17.
Conclusion: preliminary objection dismissed (unanimously).
(b) Merits – Article 11: The dissolution of the association chaired by the applicant and subsequently of the movement, constituted an interference with the applicant’s right to freedom of association. The interference was prescribed by law and pursued the aims of ensuring public safety, preventing disorder and protecting the rights of others.
Although the case concerned the dissolution of an association and a movement, rather than the dissolution of a political party, the Court acknowledged that social organisations such as the applicant’s could play an important role in the shaping of politics and policies. It reiterated that a State did not have to wait until a political movement had recourse to violence before intervening. Even if the political movement had not made an attempt to seize power and the danger of its policy was not sufficiently imminent, a State was entitled to take preventive measures to protect democracy as long as it was established that such a movement had started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention.
Although no violence had actually occurred during the rallies, the activists had marched in villages wearing military-style uniforms in a military-like formation giving salutes and commands. Such rallies were capable of conveying the message that its organisers were willing and able to have recourse to a paramilitary organisation in order to achieve their aims. In addition, the paramilitary formation was reminiscent of the Hungarian Nazi movement (Arrow Cross), the backbone of the regime responsible for the mass extermination of Roma in Hungary. In view of historical experience – such as that of Hungary in the wake of Arrow Cross power – the reliance of an association on paramilitary demonstrations expressing racial division and implicitly calling for race-based action had to have had an intimidating effect on members of a racial minority, therefore exceeding the scope of protection under the Convention for freedom of expression or of assemblies. Indeed, such a paramilitary march had gone beyond the mere expression of a disturbing or offensive idea, given the physical presence of a threatening group of organised activists.
As regards the dissolution of the Association, it was irrelevant that the demonstrations, in isolation, had not been illegal since it was only in the light of the actual conduct of such demonstrations that the real nature and goals of the association became apparent. Indeed, a series of rallies organised to allegedly keep so-called ‘Gipsy criminality’ at bay by paramilitary parading could have led to a policy of racial segregation being implemented. While the advocacy of anti-democratic ideas was not enough in itself for banning a political party, still less an association, the entirety of the circumstances – in particular the Movement’s coordinated and planned actions – constituted sufficient and relevant reasons for such a measure. Therefore, the arguments of the Hungarian authorities had been relevant and sufficient to demonstrate that the dissolution had corresponded to a pressing social need.
The threat posed by the Movement could only be effectively eliminated by removing the organisational backup of the Movement provided by the Association. The general public could even have perceived the State as legitimising such a menace, had the authorities continued to acquiesce in the activities of the Movement and the Association by upholding their legal existence. This would have meant that the Association, benefiting from the prerogatives of a legally registered entity, could have continued to support the Movement, and that the State would have indirectly facilitated the orchestration of its campaign of rallies. Finally, since no additional sanction had been imposed on the Association or the Movement or their members, who had not been prevented from continuing political activities in other forms, the Court concluded that the dissolution had not been disproportionate.
Conclusion: no violation (unanimously).

35943/10 – Legal Summary, [2013] ECHR 784
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Vona v Hungary ECHR 9-Jul-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 20 November 2021; Ref: scu.515143

Suso Musa v Malta (Legal Sumary): ECHR 23 Jul 2013

ECHR Article 5-1-f
Prevent unauthorised entry into country
Detention of asylum-seeker for period which, particularly in view of his conditions of detention, was unreasonable: violation
Facts – The applicant entered Malta in an irregular manner by boat in April 2011, was arrested by the police and placed in detention. He submitted an application for asylum and challenged his detention. In July 2012 the Immigration Appeals Board held that in the applicant’s case, had the asylum request still been pending, he could not have been kept in detention unless return proceedings were under way or he presented a risk of absconding. However, the situation had changed, given that on 2 April 2012 the applicant’s asylum request had been rejected by a final decision.
Before the European Court the applicant complained that his detention did not fall within any of the situations provided for by Article 5 and, more particularly, that its purpose had not been to prevent his unauthorised entry into Malta, given that he had been awaiting a decision on his asylum application and the consequent authorisation to enter or remain in Malta.
Law – Article 5-1 (f): In Saadi v. the United Kingdom the Grand Chamber had interpreted for the first time the meaning of the first limb of Article 5-1(f), namely, ‘to prevent his effecting an unauthorised entry into the country’. It had considered that until a State had ‘authorised’ entry to the country concerned, any entry was ‘unauthorised’ and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be, without any distortion of language, to ‘prevent his effecting an unauthorised entry’. It had not accepted that, as soon as an asylum seeker had surrendered himself to the immigration authorities, he was seeking to effect an ‘authorised’ entry, with the result that detention could not be justified under the first limb of Article 5 ss 1 (f). It had considered that to interpret the first limb of Article 5 ss 1 (f) as permitting detention only of a person who had been shown to be trying to evade entry restrictions would have been to place too narrow a construction on the terms of the provision and on the power of the State to exercise its undeniable right of control. However, the Court’s case-law did not appear to offer specific guidelines as to when detention in an immigration context ceased to be covered by the first limb of Article 5 ss 1 and fell under its second limb. The applicant’s argument to the effect that Saadi should not be interpreted as meaning that all member States may lawfully detain immigrants pending their asylum application, irrespective of national law, was not devoid of merit. Indeed, where a State which had gone beyond its obligations in creating further rights or a more favourable position enacted legislation explicitly authorising the entry or stay of immigrants pending an asylum application, any ensuing detention for the purpose of preventing an unauthorised entry might raise an issue as to the lawfulness of detention under Article 5 ss 1 (f). Indeed, in such circumstances it would be hard to consider the measure as being closely connected to the purpose of the detention and to regard the situation as being in accordance with domestic law. In fact, it would be arbitrary and thus run counter to the purpose of Article 5 ss 1 (f) to interpret clear and precise domestic-law provisions in a manner contrary to their meaning. In Saadi the national law (albeit allowing temporary admission) had not provided for the applicant to be granted formal authorisation to stay or to enter the territory, and therefore no such issue had arisen. Therefore the question as to when the first limb of Article 5 ceased to apply, because the individual had been granted formal authorisation to enter or stay, was largely dependent on national law.
As to the facts of the present case, the Court observed that it was faced with conflicting interpretations of Legal Notice 243 of 2008, and particularly of Regulation 12(1) thereof, which provided that an applicant should be ‘allowed to enter or remain in Malta pending a final decision of his application’. The Government had submitted that this provision did not oblige them to provide the applicant with any authorisation to stay. However, in the determination of the applicant’s case, the Immigration Appeals Board had upheld the argument that the provision authorised entry and that therefore in principle the circumstances of the applicant’s case had been such that he could not have been detained. It was not for the Court to interpret the intention of the legislature one way or another. However, it might well be that what had been intended was for the provision to reflect international standards to the effect that an asylum seeker might not be expelled pending an asylum application, without necessarily requiring that an individual be granted formal authorisation to stay or to enter the territory. The fact that the provision, while establishing the conditions to be met by the asylum seeker, did not provide for any formal authorisation procedure or for the issuance of any relevant documentation lent support to this interpretation. In this situation the Court considered that the first issue that arose concerned the quality of the domestic law. While it was clear that Article 5 in conjunction with Article 14 of the Act had authorised the detention of prohibited immigrants, it was undeniable that Legal Notice 243, which ‘applied notwithstanding the provisions of any other law to the contrary’, had created some confusion as to the extent of the legal basis, in particular, whether detention under the Immigration Act was lawful (in terms of the domestic law) only up to the moment an individual applied for asylum or continued to be lawful pending the determination of the asylum claim. However, while considering that clarification of the legal framework was called for in the domestic system, the Court was ready to accept that the detention had had a sufficiently clear legal basis, namely Article 5 in conjunction with Article 14 of the Act, and that, given that it had not been established that the applicant had actually been granted formal authorisation to stay – the Court in fact noted that the applicant had not been issued with the relevant written documentation – his detention had fallen under the first limb of Article 5-1(f).
As whether the applicant’s detention had been arbitrary, the Court noted a series of odd practices on the part of the domestic authorities, such as the by-passing of the voluntary departure procedure and the across-the-board decisions to detain, which the Government considered did not require individual assessment. In the light of these practices the Court had reservations as to the Government’s good faith in applying an across-the-board detention policy with a maximum duration of eighteen months. Furthermore, the appropriateness of the place and the conditions of the detention raised concerns. Periods of three months’ detention pending a determination of an asylum application had already been considered to be unreasonably lengthy, when coupled with inappropriate conditions. Hence, the Court could not consider a period of six months to be reasonable, particularly in the light of the conditions of detention described by various independent entities. It followed that the applicant’s detention up to the date of determination of his asylum application had not been compatible with Article 5-1 (f) of the Convention, which had therefore been violated.
Conclusion: violation (unanimously).
The Court also found a violation of 5-1 (f) in respect of the applicant’s detention following the determination of his asylum claim and of Article 5-4 on account of the lack of effective and speedy remedy under domestic law by which to challenge the lawfulness of detention.
Article 41: EUR 24,000 in respect of non-pecuniary damage.
(See also Aden Ahmed v. Malta, no. 55352/12, 23 July 2013)

42337/12 – Legal Summary, [2013] ECHR 776
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Sumary – Suso Musa v Malta ECHR 23-Jul-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 20 November 2021; Ref: scu.515140

Wegrzynowski And Smolczewski v Poland (Legal Summary): ECHR 16 Jul 2013

ECHR Article 8
Positive obligations
Courts’ refusal to order newspaper to remove article damaging applicant’s reputation from its Internet archive: no violation
Facts – The applicants are lawyers who won a libel case against two journalists working for the daily newspaper Rzeczpospolita following the publication of an article alleging that they had made a fortune by assisting politicians in shady business deals. Holding in particular that the journalists’ allegations were largely based on gossip and hearsay and that they had failed to take the minimum steps necessary to verify the information, the domestic courts ordered them and their editor-in-chief to pay a fine to a charity and to publish an apology. These obligations were complied with.
Subsequently, after discovering that the article remained accessible on the newspaper’s website, the applicants brought fresh proceedings for an order for its removal from the site. Their claim was dismissed on the grounds that ordering removal of the article would amount to censorship and the rewriting of history. The court indicated, however, that it would have given serious consideration to a request for a footnote or link informing readers of the judgments in the original libel proceedings to be added to the website article. That judgment was upheld on appeal.
Law – Article 8: The Court declared the first applicant’s application inadmissible, as being out of time. As regards the second applicant, it noted that during the first set of civil proceedings he had failed to make claims regarding the publication of the impugned article on the Internet. The domestic courts had therefore not been able to decide that matter. Their judgment, finding that the article was in breach of the applicants’ rights, had not created a legitimate expectation that the article would be removed from the newspaper’s website. The second applicant had not advanced any arguments to justify his failure to address the issue of the article’s presence online during the first set of proceedings, especially in view of the fact that the Internet archive of Rzeczpospolita was a widely known and frequently used resource both for Polish lawyers and the general public.
As to the second set of proceedings, the second applicant had been given the opportunity to have his claims examined by a court and had enjoyed full procedural guarantees. The Court accepted that it was not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which had in the past been found, by final judicial decisions, to amount to unjustified attacks on individual reputations. Furthermore, the legitimate interest of the public in access to public Internet archives of the press was protected under Article 10. It was significant that the domestic courts had pointed out that it would be desirable to add a comment to the article on the newspaper’s website informing the public of the outcome of the first set of proceedings. This demonstrated their awareness of how important publications on the Internet could be for the effective protection of individual rights and of the importance of making full information about judicial decisions concerning a contested article available on the newspaper’s website. The second applicant had not, however, the addition of a reference to the judgments in his favour.
Taking into account all those circumstances, the respondent State had complied with its obligation to strike a balance between the rights guaranteed under Article 10 and under Article 8.
Conclusion: no violation (unanimously).

33846/07 – Legal Summary, [2013] ECHR 779
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Wegrzynowski And Smolczewski v Poland ECHR 16-Jul-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Media

Updated: 20 November 2021; Ref: scu.515144

McCaughey And Others v The United Kingdom (LS): ECHR 16 Jul 2013

Article 2
Positive obligations
Article 2-1
Effective investigation
Excessive delay in investigation into deaths at the hands of security forces in Northern Ireland: violation
Facts – The applicants were close relatives of two men who were shot dead by security forces in October 1990 in Northern Ireland. The police conducted an investigation and the file was passed to the Director of Public Prosecutions (‘DPP’), who in 1993 issued a direction of no prosecution of the soldiers involved in the shooting. Subsequently, the coroner who was to hold an inquest into the deaths received certain papers from the police and the DPP. In 2002 the applicants wrote to the coroner asking when the inquest would be listed and requesting pre-inquest disclosure. They also sought disclosure from the Police Service Northern Ireland (PSNI). In October 2002 the first applicant’s husband issued judicial-review proceedings against the Coroner and the PSNI, challenging the latter’s retention of relevant documentation. Those proceedings culminated in a judgment of the House of Lords of 28 March 2007 requiring the PSNI to disclose to the Coroner such information about the deaths as the PSNI was then or thereafter able to obtain, subject to any relevant privilege or immunity. In 2009, following the judgment of the European Court in Silih v. Slovenia, the first and third applicants began judicial-review proceedings arguing that the inquest was required to be Article 2 compliant. That submission was upheld by the Supreme Court (formerly the House of Lords) in a judgment of 18 May 2011 in which it held that the Coroner holding the inquest had to comply with the procedural obligations under Article 2. The inquest opened in March 2012 and ended at the beginning of May 2012. The jury considered that the soldiers involved in the operation in October 1990 had shot the deceased in the belief that their position was compromised and their lives were in danger and had thus used reasonable force. In June 2012 the first applicant requested leave to apply for judicial review of the inquest. Those proceedings are still pending.
In their application to the European Court the applicants made a number of complaints under the substantive and procedural aspects of Article 2 about the deaths of their relatives and, under Article 13 of the Convention, about a lack of an effective domestic remedy.
Law – Article 2
(a) Admissibility – Save in relation to the complaint about investigative delay, the Court was not in a position to consider the merits of the complaints under the substantive and other procedural aspects of Article 2 because a civil action by the applicants was still pending and because, given the pending judicial-review proceedings, the initiation of further relevant investigative procedures, including of a criminal and/or disciplinary nature, remained possible.
(b) Merits – The Court reiterated that Article 2 requires investigations to begin promptly and to proceed with reasonable expedition; this is required quite apart from any question of whether the delay actually impacted on the effectiveness of the investigation. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. It was striking that the inquest hearing proper had not begun until March 2012, more than twenty-one years after the deaths had occurred (although the inquest had proceeded quickly thereafter, ending in May 2012 with a detailed verdict). The overall period could be broadly divided into three phases.
The first, from 1990 to 2002, was marked by inordinately long periods of inactivity during which some (inadequate) disclosure was made by the Royal Ulster Constabulary (RUC) and its successor body the PSNI. The second, from 2002 to March 2012 was characterised by the applicants’ and others’ legal actions and initiatives which were demonstrably necessary to drive forward their inquests and to ensure the clarification of certain important aspects of coronial law and practice including, notably, those going to the rights of next-of-kin. The fact that it was necessary to postpone the applicants’ inquest so frequently and for such long periods pending clarifying judicial-review actions demonstrated that the inquest process itself was not structurally capable at the relevant time of providing the applicants with access to an effective investigation which would commence promptly and be conducted with due expedition. By the time the last and third phase began with the inquest hearing, the delay at that point was such that the High Court considered itself obliged to raise the threshold of leave to apply for judicial review to ‘exceptional circumstances’, which made the clarification of the procedural rights of the applicants exceedingly difficult and therefore rendered rather inescapable another post-inquest judicial-review action. That action was still pending before the High Court.
These delays could not be regarded as compatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths, in the sense that the investigative process, however organised under national law, must be commenced promptly and carried out with reasonable expedition. To that extent, the finding of excessive investigative delay of itself entailed the conclusion that the investigation was ineffective for the purposes of Article 2. No separate issue arose under Article 13.
Conclusion: violation (unanimously).
Article 46: The carrying out of investigations, including holding inquests, into killings by the security forces in Northern Ireland had been marked by major delays that remained a serious and extensive problem. Indeed, the Committee of Ministers had expressed concern about investigative delay as regards four other Court judgments (Hugh Jordan, Kelly and Others, McKerr and Shanaghan) which reflected a pattern of delay very similar to that in the applicants’ case and which it continued to supervise almost twelve years after they were delivered (see Committee of Ministers Resolution CM/ResDH(2009)44)
While it fell to the Committee of Ministers to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance, the Court considered that, whatever the specific modalities chosen, this must involve the State taking, as a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests were pending, that the procedural requirements of Article 2 were complied with expeditiously.
Article 41: No claim made in respect of damage.

43098/09 – Legal Summary, [2013] ECHR 778
Bailii
European Convention on Human Rights
Human Rights
Cited by:
See Also – McCaughey and Others v The United Kingdom ECHR 16-Jul-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 November 2021; Ref: scu.515136

Vassis And Others v France (Legal Summary): ECHR 27 Jun 2013

ECHR Article 5-3
Brought promptly before judge or other officer
48 hours’ police custody following 18 days’ deprivation of liberty on board vessel arrested on high seas: violation
Facts – The applicants were crew-members of a ship that was intercepted by the French Navy off the African coast on suspicion of transporting drugs. The vessel was escorted to France, where it arrived eighteen days later. On the applicants’ arrival, a preliminary investigation was opened and they were taken into police custody. They were presented to a judge about forty-eight hours later.
Law – Article 5 – 3: The police custody had followed a period of eighteen days of deprivation of liberty within the meaning of Article 5 of the Convention, and the applicants had had to wait a further forty-eight hours to be brought for the first time before a ‘judge or other officer’ as provided in Article 5 – 3 with its autonomous meaning. The circumstances of the case did not justify such a delay. The interception had been planned in advance and the ship suspected of being used for international drug trafficking had been under close surveillance since January 2008. Moreover, there was no doubt that the eighteen days required for the applicants’ transfer had allowed their arrival on French soil to be prepared sufficiently. In view of the length of that period, without judicial supervision, there had been no justification for subsequently placing the applicants in police custody for the forty-eight hours in question; in addition, the existence of those specific circumstances made the promptness requirement of Article 5 – 3 even stricter than in the more usual situation where the deprivation of liberty started with the police custody itself. The applicants should thus have been brought, as soon as they arrived in France and without delay, before a ‘judge or other officer authorised by law to exercise judicial power’. The case-law allowing for the first appearance before a judge to take place after two or three days, without breaching the rule on promptness, did not mean that the authorities could freely dispose of such a period in order to complete the prosecution case file.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 each in respect of non-pecuniary damage.

62736/09 – Legal Summary, [2013] ECHR 795
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Vassis And Others v France ECHR 27-Jun-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 November 2021; Ref: scu.515128

Izci v Turkey: ECHR 23 Jul 2013

ECHR Article 46
Respondent State required to take measures to ensure respect by law-enforcement officials of right to peaceful assembly
Facts – On 6 March 2006 the applicant took part in a demonstration in Istanbul to celebrate Women’s Day which ended in clashes between police and protesters. Video footage of the events showed police officers hitting a large number of demonstrators with their truncheons and spraying them with tear gas. Women who had taken refuge in shops were dragged out by the police and beaten up. According to the report of an expert appointed by the Turkish authorities to examine the video footage, police officers had not issued any warnings to disperse demonstrators before attacking them. The demonstrators, for their part, had not tried to respond to the attack but had only tried to flee. The applicant sustained bruising all over her body and lodged an official complaint against the police officers she considered responsible for her ill-treatment. Of a total of 54 police officers accused of causing injuries by the use of excessive force at the demonstration, 48 were acquitted for lack of evidence. The six remaining officers were sentenced to terms of imprisonment ranging from five to twenty-one months, but the proceedings against them were discontinued under the statute of limitations.
Law – The Court unanimously found violations of the substantive and procedural aspects of Article 3 of the Convention through the use of disproportionate force and lack of an effective investigation, and a violation of Article 11 on account of the failure to respect her right to freedom of assembly.
Article 46 – The Court had already found in over 40 judgments against Turkey that the heavy-handed intervention of law-enforcement officials in demonstrations had amounted to a violation of Article 3 and/or Article 11 of the Convention. The common feature of those cases was the failure of the police forces to show a certain degree of tolerance towards peaceful gatherings and, in some instances, the precipitate use of force, including tear gas, by the police. In over 20 of the judgments, the Court had already observed the failure of the Turkish investigating authorities to carry out effective investigations into allegations of ill-treatment by law-enforcement personnel during demonstrations. It further stressed that 130 applications against Turkey concerning the right to freedom of assembly and/or use of force by law-enforcement officials during demonstrations were currently pending.
Having classified these problems as ‘systemic’, the Court requested the Turkish authorities to adopt general measures in order to prevent further similar violations in the future. In particular, it asked the Turkish authorities to take steps to ensure that the police act in accordance with Articles 3 and 11 of the Convention, that the judicial authorities conduct effective investigations into allegations of ill-treatment in conformity with the obligation under Article 3 and in such a way as to ensure the accountability of senior police officers also. Finally, the Court highlighted the need for a clearer set of rules to be adopted as regards the use of violence and weapons such as tear gas during demonstrations, especially against demonstrators who do not put up violent resistance.
Article 41: EUR 20,000 in respect of non-pecuniary damage.

42606/05 – Chamber Judgment, [2013] ECHR 719, 42606/05 – Legal Summary, [2013] ECHR 789
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Police

Updated: 19 November 2021; Ref: scu.515131

Khlyustov v Russia: ECHR 11 Jul 2013

ECHR Article 2 para. 2 of Protocol No. 4
Freedom to leave a country
Travel restrictions on judgment debtor: violation
Facts – Between November 2003 and December 2005 the applicant was subject to a series of six-monthly bans on leaving the Russian Federation. The bans were imposed by decisions of the bailiffs’ service on the grounds that the applicant had failed to pay a judgment debt to a third party voluntarily. The applicant had requested time to pay, in view of his financial circumstances and the fact that he had two dependent children and a sick mother.
Law – Article 2 of Protocol No. 4: The interference with the applicant’s right to leave the country had been in ‘accordance with law’ for the purpose of Article 2 of Protocol No. 4. It had had a basis in the domestic law (the 1997 Federal Act on Enforcement Proceedings and the 1996 Federal Act on Leaving and Entering the Russian Federation), which permitted temporary restrictions on the right to leave Russia of citizens who had evaded obligations imposed on them by a court. The legislation was accessible and, although it conferred a wide discretion on the bailiffs’ service, sufficiently foreseeable. In any event, safeguards against arbitrary interference were provided by the fact that the bailiffs’ decisions were subject to judicial review. The interference had also pursued a legitimate aim, namely the protection of the rights of others.
As regards the question of whether the interference had been ‘necessary in a democratic society’, the Court reiterated that restrictions on movement imposed on account of unpaid debts were justified only so long as they furthered the aim of guaranteeing recovery of the debts in question. In particular, the domestic authorities had to ensure that the restrictions were, from the outset and throughout its duration, justified and proportionate and did not extend for long periods without regular re-examination of their justification.
Under the domestic legislation as interpreted by the Constitutional Court, travel restrictions could not be imposed automatically for failure to pay the judgment debt, but only once it had been established that their imposition was necessary in cases where the debtor had evaded the obligations imposed on him or her by a court. The bailiffs were obliged to issue a ruling indicating the grounds for their decision. However, in the applicant’s case, the bailiffs’ decision had been based solely on the ground that the applicant had not paid the judgment debt voluntarily. They had not cited any other reason and, in particular, had not stated that he had evaded payment or explained how the travel ban might serve to collect the debt. Nor had they examined the applicant’s individual situation and other relevant circumstances of the case. The wording of the bailiffs’ successive decisions had not evolved with the passage of time. In sum, from the outset and throughout its duration, the restriction on the applicant’s freedom to leave the country had been based solely on the ground that he had not paid the judgment debt voluntarily, and was extended automatically by the bailiffs’ service without any reassessment of its justification. The situation had not been rectified by the domestic courts, which when reviewing the decisions of the bailiffs’ service had not assessed the justification or proportionality of the travel restrictions.
In conclusion, the domestic authorities had not complied with their obligation to ensure that the interference with the applicant’s right to leave his country was justified and proportionate throughout its duration.
Conclusion: violation (unanimously).
Article 41: EUR 2,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

28975/05 – Chamber Judgment, [2013] ECHR 671, 28975/05 – Legal Summary, [2013] ECHR 790
Bailii, Bailii
European Convention on Human Rights 4.2
Human Rights

Human Rights

Updated: 19 November 2021; Ref: scu.515132

Lynch v Director of Public Prosecutions: Admn 8 Nov 2001

The defendant challenged a conviction for having a locked bladed article in his possession in a public place, on the basis that it placed on him a burden of proof contrary to the convention.
Held: Salabiaku permits a reverse onus but requires presumptions of fact or of law to be defined within reasonable limits. As Lord Bingham stated in Brown, there are no hard edged and inflexible statements of principle. A fair balance must be struck. That fair balance permits the existence of a reverse onus in the context of section 139 of the 1988 Act.

Pill LJ Poole J
[2001] EWHC Admin 882
Bailii
Criminal Justice Act 1988 139, Human Rights Act 1988 3, European Convention of Human Rights 6
England and Wales
Citing:
Cited – Salabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .
Cited – Attorney General of Hong Kong v Lee Kwong-Kut PC 1993
(Hong Kong) In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Regina v Lambert; Regina v Ali; Regina v Jordan CACD 14-Sep-2000
Each defendant was charged under a statute which provided a defence if they could prove a certain element. They complained that this was a breach of their human rights. The complaint was rejected. It would be wrong to impose a burden of proof on a . .
Cited – Regina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .
Cited – Jayasena v The Queen PC 1-Dec-2006
J appealed from his conviction of murder. He admitted the act but said that it was in self defence. He said that the Judge had misdirected the jury as to the burden of evidence on the issue of self defence.
Held: Lord Devlin said: ‘Their . .

Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 19 November 2021; Ref: scu.167260

Suso Musa v Malta: ECHR 23 Jul 2013

42337/12 – Chamber Judgment, [2013] ECHR 721
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Sumary – Suso Musa v Malta (Legal Sumary) ECHR 23-Jul-2013
ECHR Article 5-1-f
Prevent unauthorised entry into country
Detention of asylum-seeker for period which, particularly in view of his conditions of detention, was unreasonable: violation
Facts – The . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 17 November 2021; Ref: scu.513609

Turluyeva v Russia (Summary): ECHR 20 Jun 2013

Article 2
Positive obligations
Article 2-1
Effective investigation
Authorities’ failure to protect life of a detainee who disappeared in life-threatening circumstances: violation
Facts – In October 2009 the applicant’s son was detained in Grozny by the police following an armed skirmish. He was last seen by his uncle at the police headquarters with signs of beatings on his face. The family have had no news of him since. The applicant lodged a complaint, but it was not until some weeks later that proceedings were opened by a district investigative committee in Grozny on suspicion of murder and the proceedings were still pending at the date of the Court’s judgment. Although the Government confirmed that the applicant’s son had been taken to the police headquarters they said that he had been released a few hours later. No records of the son’s detention, questioning or release were drawn up. According to the applicant, the boy’s uncle was harassed and threatened by the local head of police after she lodged her complaint.
Law – Article 2
(a) Presumption of and responsibility for the death of the applicant’s son: On the basis of the parties’ submissions and the documents before it, the Court found it sufficiently established that the applicant’s son had been taken by servicemen to the police headquarters in Grozny in the late evening of 21 October 2009. Although the police had alleged that he had subsequently been released, he had not been seen since and his family had not received any news. The criminal investigation had not acquired any evidence of his alleged release. In view of the passage of time and the life-threatening nature of such unrecorded detention in the region, the applicant’s son could now be presumed dead. The State was responsible for his death, as the Government had failed to provide any plausible explanation of what had happened to him following his detention and disappearance more than three years previously.
Conclusion: violation (unanimously).
(b) Positive obligation to protect life: Given the Court’s numerous previous judgments and international reports on the subject, the Russian authorities had been sufficiently aware of the problem of enforced disappearances in the North Caucasus and its life-threatening implications for detained individuals. As the Government had informed the Council of Europe’s Committee of Ministers, in order to comply with the Court’s judgments, they had lately taken a number of specific actions to make investigations into this type of crime more efficient, in particular by creating a special unit within the Investigating Committee of the Chechen Republic.
The authorities had become aware no later than December 2009 that the applicant’s son had been unlawfully deprived of his liberty in a life-threatening situation. However, key measures which could have been expected in such circumstances had not been taken. In particular, there had been no immediate inspection of the police headquarters or efforts to collect perishable traces or video records from CCTV cameras. Such omissions were particularly regrettable given that the exact location of the suspected crime was known to the authorities. The fact that the suspects were police officers did not relieve the investigating authorities of their obligations. In conclusion, by not acting rapidly and decisively, the authorities had failed to take appropriate measures to protect the applicant’s son’s life.
Conclusion: violation (unanimously).
(c) Effectiveness of the investigation: The investigation had been plagued by numerous delays. In particular, the investigators had not taken statements from the police officers until months later, thus increasing the risk of collusion. The CCTV records at the police headquarters had been lost. Furthermore, the investigation had not had any impact on the police officers’ continued service and their ability to put pressure on other actors of the investigation, including witnesses. Of particular concern were the lack of cooperation with the investigators and the allegations of threats to the uncle. In sum, the investigation had not been effective.
Conclusion: violation (unanimously).
The Court further found a violation of Article 3, on account of the distress and anguish suffered by the applicant, a violation of Article 5 on account of the unacknowledged detention, and a violation of Article 13 in conjunction with Article 2 on account of the lack of legal remedies.
Article 41: EUR 60,000 in respect of non-pecuniary damage.

63638/09 – Legal Summary, [2013] ECHR 715
Bailii
European Convention on Human Rights
Human Rights
Citing:
Judgment – Turluyeva v Russia (judgment) ECHR 20-Jun-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 17 November 2021; Ref: scu.513586

Wegrzynowski And Smolczewski v Poland: ECHR 16 Jul 2013

33846/07 – Chamber Judgment, [2013] ECHR 690
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Wegrzynowski And Smolczewski v Poland (Legal Summary) ECHR 16-Jul-2013
ECHR Article 8
Positive obligations
Courts’ refusal to order newspaper to remove article damaging applicant’s reputation from its Internet archive: no violation
Facts – The applicants are . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 November 2021; Ref: scu.512421

McCaughey and Others v The United Kingdom: ECHR 16 Jul 2013

43098/09 – Chamber Judgment, [2013] ECHR 682
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – McCaughey And Others v The United Kingdom (LS) ECHR 16-Jul-2013
Article 2
Positive obligations
Article 2-1
Effective investigation
Excessive delay in investigation into deaths at the hands of security forces in Northern Ireland: violation
Facts – The applicants were close relatives . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 November 2021; Ref: scu.512415

Mater v Turkey: ECHR 16 Jul 2013

54997/08 – Chamber Judgment, [2013] ECHR 687
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Full judgment – Mater v Turkey (LS) ECHR 16-Jul-2013
Article 8-1
Respect for private life
Newspaper editorial criticising applicant without insulting her or calling for the use of violence: no violation
Facts – The applicant wrote a book containing the testimonies of former soldiers who . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 November 2021; Ref: scu.512414