CJEU sets itself against secret “nod and a wink” justice

Fulmen & Mahmoudian v. Council of the European Union,28 November 2013,  read judgment

I posted last year on a decision by the General Court in Luxembourg, in which Fulmen successfully challenged sanctions taken against it as part of EU policy to apply pressure on Iran to end nuclear proliferation.

 Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian was said to be a director of Fulmen. Hence all of their assets were frozen by the EU.

The CJEU has now roundly dismissed the appeal by the EU Council from the ruling of the General Court. The sanctions order has been annulled – over 3 years after it was made. The Council has been told that if it wants to uphold such orders, it must adduce evidence to the Court, however sensitive the subject matter, and even if not all of that evidence is passed on to those affected.

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Deport first, appeal second

horseIn a wide-ranging interview with the Sunday Telegraph, the Prime Minister has previewed a new ‘deport first, appeal second’ approach to deportation cases:

… in specific response to the never-ending Abu Qatada case, and vexatious use of the European Convention on Human Rights, the PM is looking at a new and radical option. “I am fed up with seeing suspected terrorists play the system with numerous appeals. That’s why I’m keen to move to a policy where we deport first, and suspects can appeal later.” Under this new arrangement, deportees would only be able to appeal against the decision while still in this country – thus suspending their removal – if they faced “a real risk of serious, irreversible harm”.

It seems to me that this approach is anchored in last month’s European Court of Human Rights (Grand Chamber) decision in DE SOUZA RIBEIRO v. FRANCE – 22689/07 HEJUD [2012] ECHR 2066 (summary here). See in particular paragraphs 82

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Extraordinary rendition gets to Strasbourg – a right to the truth

ciaEl-Masri v. The Former Yugoslav Republic Of Macedonia, Grand Chamber of ECtHR, 13 December 2012, read judgment

In a hard-hitting judgment, the 17 judges of the Grand Chamber found Macedonia (FYROM) responsible for the extraordinary rendition of Mr El-Masri, a German national, by the CIA to Afghanistan. We have all seen the films and read about this process – but even so the account given by the Court is breath-taking. And in so doing, most of the members of the Court made explicit reference to the importance of a right to the truth – not simply for El-Masri, the applicant, but for other victims, and members of the public generally. And the story is all the more chilling because the whole episode appears to have been caused by mistaken identity. 

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Domestic violence: the limits of Strasbourg’s intervention

Irene Wilson v. The United Kingdom (Application no. 10601/09) – read admissibility decision

Sadly barely a month seems to go by without a report in the media about the police and the justice system failing to protect the victims of domestic violence.

The Strasbourg Court  has been required on a number of occasions to assess whether the response of domestic authorities to domestic violence has been compatible with their positive obligations under Article 8 (right to respect for  family and private life) of the Convention.  Given that such individuals are of a particular vulnerability, Strasbourg has repeatedly emphasised the need for active state involvement in their protection. However, in this particular admissibility decision, the Court held that the Northern Irish authorities had not failed in their duty under the Convention to protect the applicant.

Background Facts

The applicant, Irene Wilson, was assaulted by her husband after they had been out drinking.  She suffered a severed artery on her head, requiring eight stitches as well as multiple bruising. Her husband was arrested and charged with causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861.  He was granted bail and required to reside at an alternative address to the matrimonial home. Continue reading

Autonomy and the role of the Official Solicitor – whose interests are really being represented?

R.P. and others v United Kingdom (9 October 2012) – read judgment

The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.

The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether

the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. Continue reading

When the UN breach human rights… who wins?

NADA v. SWITZERLAND – 10593/08 – HEJUD [2012] ECHR 1691 – read judgment

How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.

Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).

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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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