Category Archives: Art. 3 | Torture / Inhumane Treatment

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Chagossians hit the buffers in Strasbourg – but not over yet

_64878328_005205708Chagos Islanders v. United Kingdom, ECtHR 4th Section, 11 December 2012 read admissibility decision

The set of injustices which led to these claims is well known – and see my posts here and here. For the uninitiated, in the 1960s, the US wanted Diego Garcia (one of the Chagos Islands) as a major air base. It spoke nicely to the UK, its owners, who consequently evicted and banned all the inhabitants from it and the neighbouring islands. The constitutional arrangements were apparently decorous. A new UK colony was established (the British Indian Ocean Territory or BIOT) with a Commissioner to make laws for the peace, order and good government of the Territory.

The UN was told that the population consisted of migrant workers, their position had been fully protected, and they had been consulted in the process – none of this in fact happened. Those evicted mainly went to Mauritius and the Seychelles. So the peace, order and good government in fact forthcoming from the UK amounted to total depopulation for military objectives.

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Judge strikes down Facebook page “Keeping our Kids Safe From Predators”

Facebook-from-the-GuardianX v Facebook Ireland Ltd [2012]   NIQB 96 (30 November 2012)   - read judgment

This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the  ”wild west” of the internet and the question of social media regulation.

This short  judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,

The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.

Background to the case

The plaintiff  (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith.  Continue reading →

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“Murder most foul”: whole life imprisonment not a human rights breach

Oakes and others v R [2012] EWCA Crim 2435 – read judgment

The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.

Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term,  a jurisdiction of last resort in cases of exceptional criminality.

It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.

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Abu Qatada: Preventing a flagrant denial of justice

Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – read judgment

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.

Earlier today, Abu Qatada was released from Long Lartin prison following his successful appeal before the Special Immigration Appeal’s Commission (SIAC). Qatada was challenging the decision to deport him to Jordan, where he faces a retrial for alleged terrorism offences.  

For most of the last decade, Abu Qatada has been detained pending deportation to his home country. At his two original trials, he was convicted in absentia and sentenced to full life imprisonment with 15 years’ hard labour.

In his latest challenge to his deportation, SIAC concluded, as the European Court of Human Rights had in May 2012, that due to the real risk of a flagrantly unfair trial in Jordan, Qatada could not be deported there.  Continue reading →

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Why saving the Human Rights Act will be good for your health – Alice Donald

Debate about whether the Human Rights Act (HRA) might be replaced by a new UK Bill of Rights often dwells on the potential loss, or at least weakening, of the legal route to accountability and redress for victims of human rights violations. An event next month in Liverpool reminds us how much more might be lost if the HRA were to be scrapped or watered down. In particular, it highlights the significance of section 6 of the Act, which requires all public authorities to act in a way which is compatible with European Convention rights unless primary legislation requires them to act otherwise.

The event in question is the launch of the latest results of the Human Rights in Healthcare programme. The programme was set up in 2006 by the Department of Health and the British Institute of Human Rights; in 2011-12, it was led by Lindsey Dyer of Mersey Care NHS Trust. Under its leadership, pilot NHS Trusts have used human rights to design and run services in areas as diverse as dementia care, acute hospital settings, district nursing and care homes.

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Asylum conditions in Italy not severe enough to prevent removal of refugees from the UK

 EM (Eritrea) and others v Secretary of State for the Home Department - read judgment

A member state was entitled to return a refugee to the EU state of first embarkation unless it is proved that there are “systematic deficiencies” in the asylum procedures of the receiving state.

These four cases raised one central question: was it arguable that to return any of the claimants to Italy, either as an asylum-seeker pursuant to the Dublin II Regulation or as a person already granted asylum there, would entail a real risk of inhuman or degrading treatment in violation of Article 3 of the ECHR? In determining that question, the evidence provided by the UN Refugee Agency was decisive for the court.

The Dublin II Regulation provides for a system whereby asylum claims are processed and acted on by the first member-state in which the asylum-seeker arrives. Under this Regulation asylum-seekers and refugees may be returned to that state if they then seek asylum or take refuge elsewhere in the EU. The assumption underlying this system is that every member state will comply with its international obligations under not only the 1951 Refugee Convention and the European Convention on Human Rights but also the Qualification Directive and the EU Charter.  Continue reading →

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Extraordinary rendition, forced labour, and evidence obtained by torture – Antoine Buyse

Building on Abu Qatada

There are three cases, among the many decided by the Court in the past few weeks, which I would like to highlight. They deal with testimony potentially obtained through torture, forced labour and extraordinary rendition respectively. 

The first is the case of El Haski v. Belgium (available only in French). It deals with a terrorist suspect against whom evidence obtained in Morocco during legal proceedings there (following the 2003 Casablanca bombings) was used in court in Belgium. It was unclear whether such evidence was in fact obtained by means of torture. The Court held that it was sufficient for exclusion of such evidence from trial in an ECHR state party if a suspect could show that there was a “real risk” that such evidence had been obtained by treatment contrary to Article 3. The case builds on the recent Othman (Abu Qatada) v. the United Kingdom judgment, from January of this year. In this case, such a real risk existed. The refusal by Belgian courts to exclude the evidence thus led to a violation of the right to a fair trial (Article 6 ECHR).

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Back in the spotlight: the detention of mentally ill asylum seekers

R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) – read judgment

1 Crown Office Row’s Robert Kellar was instructed for the Defendant in this case.  He is not the writer of this post.

The High Court has ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part.

The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events.  The Home Secretary refused the application and the Claimant appealed.  At the appeal he was unrepresented and he adduced no medical evidence.  The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted (that is, he was unable to appeal any further through the courts), the Secretary of State detained him on 19 October 2010 for the purpose of removal.

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Sex abuse allegations against parent should be disclosed in contact proceedings

Re J (A Child: Disclosure) [2012] EWCA Civ 1204 – read judgment

The Court of Appeal has ordered the the disclosure of serious allegations made against a parent by an anonymous third party in contact proceedings. In doing so, it has demonstrated the correct approach to balancing the many different human rights considerations involved. 

Every day, family courts across the UK are required to determine the difficult question of how much contact there should be between a child and his or her parents. It is the norm for these cases to be factually complicated and emotionally draining. However, this case was exceptional. It was an appeal relating contact proceedings in respect of a ten year old girl (A). The court had made various orders for contact over a number of years, with a final order being made in 2009 that the she was to stay with her father for two weeks each February and four weeks each summer.

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Failure to stop disability harassment is inhuman treatment, rules Strasbourg

Attitudes changing, slowly

DORDEVIC v. CROATIA – 41526/10 – HEJUD [2012] ECHR 1640 – read judgment

The European Court of Human Rights has declared in Đorđević v Croatia that the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.

It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life.  The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.

This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.

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Bye bye Abu Hamza – but why did it take so long?

The European Court of Human Rights has refused the request of Mustafa Kamal Mustafa (Abu Hamza) and four others to refer their extradition appeal to its Grand Chamber for another hearing. This means that their case, which was decided in the Government’s favour in April (see our post) is now final. There are therefore no remaining barriers to their extradition to the United States to face terrorism charges.

But why has it taken so long to decide the case? The men argued that if extradited there was a real risk that their article 3 (torture and inhumane treatment) rights would be contravened by being held at a ‘Super-max’ prison and by having to face extremely long sentences. The extradition requests were made by the United States in July 1999 (Adel Bary), May 2004 (Abu Hamza) March 2005 (Barbar Ahmad), August 2005 (Haroon Rashid Aswat) and September 2006 (Syed Tahla Ahsan). In other words, a long time ago.

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A Chagossian double bill: an environmental information contest, and a touch of Wikileaks

The Chagos Refugees Group in Mauritius v. Foreign and Commonwealth Office, First Tier Tribunal, 4 September 2012, read judgment

and Bancoult v. FCO, 25 July 2012, Stanley Burnton LJ, read judgment

The manoevres by which the Chagossians were evicted from their islands in the Indian Ocean, the late 1960s and early 1970s, so to enable the US to operate an air base on Diego Garcia, do not show the UK Foreign Office in its best light. Indeed, after a severe rebuke from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

The first of these new cases is an environmental information appeal concerning the next phase of the story – how the FCO decided that it was not feasible to resettle the islanders in 2002-2004.

This decision was taken in the modern way – backed by a feasibility study prepared by consultants supporting the stance which the FCO ultimately were to take. And this case concerns the islanders’ attempts to get documents lying behind and around the taking of this decision.

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Should we be using ‘special’ offences to prosecute crimes against disabled people? – Lucy Series

Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA).  In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences. 

The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion Europe, European Disability Forum).  So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?

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The triple Olympic detainee

Othman, R (on the application of) v Special Immigration Appeals Commission (SIAC) & Ors [2012] EWHC 2349 (Admin) – read judgment 

Angus McCullough QC represented Abu Qatada as his Special Advocate in the SIAC proceedings.

Along with many others, today I find myself emerging from an Olympic haze. And alongside that morning-after blur comes a nagging feeling that it is time to get back to blogging. Why not start with a man who has watched the last three Olympic Games during what the High Court describes as an “enormously lengthy” period of  detention without charge, and whose last bail application was refused as it would be too difficult to keep track of him during the 2012 Olympics?

The last two or so weeks have been a wonderful time to be in London. Aside from the slightly naff closing ceremony, everything about the sporting carnival has been positive. It has also been a great time to be working in Temple, which has been converted into ‘Belgium House‘ for a fortnight.

Before returning to unlawful detention and Abu Qatada, a personal reflection. The first time I ever visited the Inner Temple was for a scholarship interview which took place on 9 July 2005. I will always remember the date because I had come to London for the interview on 6th July, the day on which the Games were awarded to London. The following day, I was on a bus on the way into town reading a newspaper headline about the Olympics, when I read on the BBC website that there had been a bomb on a tube. I jumped off the bus and flagged a taxi going the opposite direction, and the taxi driver told me he had just seen a bus blow up in Tavistock Square.

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Daily Mail on the naughty step for dodgy immigration story

Somebody call Lord Justice Leveson! The Daily Mail have earned themselves a position on the legal naughty step by ‘naming and shaming’ a “controversial” immigration judge for allowing an appeal on human rights grounds, whilst failing to mention that the Home Office themselves had conceded the point.

The article by Andy Whelan and Ross Slater, entitled Judge who let Taliban soldier remain in Britain now allows refugee who raped girl, 12, stay in UK, even included a paparazzi snap of Immigration Judge Perkins looking vaguely sinister. The Mail reported, correctly, that the judge ruled “removing [the Appellant] would be contrary to the United Kingdom’s obligations under the European Convention on Human Rights“. This is technically right. But there is more. The excellent Free Movement Blog has tracked down the judgment, in which the Judge also made clear that

Before us, on 12 November 2009, Ms R Ashraf, who then represented the [Home Office], accepted that the appeal had to be allowed on human rights grounds.

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