C-501/11P Schindler v. European Commission, CJEU, 18 July 2013 – read judgment
Two things of general interest to the human rights lawyer in this unsuccessful attempt by Schindler to challenge a fine of a mere €143 million for anti-competitive behaviour before the EU’s top court.
The first is that the Commission’s role as investigator, prosecutor and enforcer was not found to be in breach of Article 6(1) – because its decisions were subject to “full review” by the EU judges. The second is the remark in the CJEU’s judgment that the EU status of Article 6 ECHR will change when the EU accedes to the ECHR – I shall look at whether this change will be formal or substantive, given the presence of an equivalent right in the EU Charter, within Article 47.
Like a lot of decisions involving issues of high principle, the underlying facts do not reflect well on the offending company, in this case Schindler. It, with three other companies (Kone, Otis and ThyssenKrupp), stitched up the lift and escalator markets in Belgium, Germany, Luxembourg and the Netherlands. Somebody tipped off the Commission, who conducted a massive investigation, and fined all these companies. As is standard, the process of investigation did not involve any oral hearing, with some limitations on the access by the accused companies to all the material which the Commission received.
As my image shows, cartel fines by the Commission involve big big money, and I dare say they dwarf any fines levied by member states on “true” criminals.
In a previous blog post on these pages, the case of Lindsay Sandiford was examined. Sandiford – a British citizen facing the death penalty in Indonesia – had asked the UK Government for funding to help her appeal, but was refused financial help. The Court of Appeal ruled in favour of the Government, stating that the decision to provide legal aid to a British citizen abroad is a discretionary matter for the executive.
Regardless of whether one agrees with the decisions of the Government and the Court, the case raises interesting questions about the obligations that are imposed on states that have abolished the death penalty. The primary duty on states is to simply refrain from imposing the death penalty, but it is possible to detect an emerging secondary obligation to refrain from facilitating the use of the death penalty elsewhere. This issue is particularly relevant to the UK, because although the UK takes a leading role internationally in campaigning for the abolition of the death penalty, there is evidence that the UK has on occasion aided the use of capital punishment elsewhere.
Radical changes are afoot in Strasbourg. Protocol No. 15, whose outlines were agreed at the Brighton Conference of 2012, is primed for ratification, while at the start of 2014, new Rules of Court will come into effect. Both have the potential to have a wide-ranging impact on applicants. Protocol 15 rewrites the Convention’s preamble, emphasising the Court’s “subsidiary” role in the protection of human rights.
It also modifies two of the admissibility criteria for petitions, pairing back the safeguard clauses initially erected around Protocol 14’s new criteria of “no significant disadvantage” and trimming the time available for applicants to lodge their cases from six months to four.
Pride is celebrated this weekend in London, New York and – most especially – San Francisco where, even as I write, same sex couples are being married after the ruling of the US Supreme Court on Proposition 8. Appropriately, Kris Perry, one of the litigants before the Court was the first to be wed. Matthew Flinn has already posted on this and the Court decision on the Defence of Marriage Act.
It is irresistible to take stock at moments such as these.
France is celebrating its first same sex marriages, Uruguay and New Zealand are close on its tail and the Bill to effect the same in England and Wales should confront its final hurdle on 15 July.
Hollingsworth v Perry – No. 12–144 – Read judgment
United States v Windsor – No. 12–307 – Read judgment
In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.
The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.
ZZ v Secretary of State for the Home Department  EUECJ C-300/11 – Read judgment
The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).
Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 11 June 2013 read judgment
The Divisional Court has now dismissed the claim by Mr Bancoult on behalf of the Chagossian islanders. He had challenged the designation of the waters around the islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
Mr Bancoult said that the decision was flawed (i) by having an improper purpose (it would put paid to the Chagossians’ claims for resettlement); (ii) by inadequate consultation and (iii) by amounting to a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.
The case has, to say the least, quite a back-story. It started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, on which I have posted here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the Foreign Office accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
The British public owes a lot to Ernest Davies. Few, if any, will have heard of him. A Londoner and scion of a Labour party councillor, he began a career in journalism, spent the war years at the BBC’s north Africa desk and, in the Attlee landslide of 1945, was elected as Member of Parliament for Enfield. After the 1950 General Election, he was appointed Parliamentary Undersecretary of State in the Foreign Commonwealth Office. And at 4 p.m. on 4th November 1950, together with ministers representing ten other European states, he walked into the Salone of the Palazzo Barberini, Rome, and signed the European Convention on Human Rights on behalf of the United Kingdom.
It is intriguing to imagine what Davies would have made of the current debate over the United Kingdom’s participation in the Convention system. Perhaps as a former journalist he would have known all too well that, at least for some sections of the British media, coverage of European affairs isn’t always to be taken at face value or too seriously. He would, no doubt, be surprised at the evolution of the Convention into the system it is today. But I think it would have been surprise mixed with a quiet sense of pride, for he would have known that the text he signed was the product of months of work by British lawyers.
R (on the application of Sandiford) v Secretary of State for Foreign & Commonwealth Affairs  168 (Admin) – read judgment
On 22 April 2013 the Court of Appeal upheld the decision of the Foreign and Commonwealth Office in refusing to pay for a lawyer to assist Lindsay Sandiford as she faces the death penalty for drug offences in Indonesia. Last Wednesday, they handed down the reasons for their decision.
On 19 May 2012 Lindsay Sandiford was arrested at Ngurah Rai International Airport in Bali following the discovery of almost five kilograms of cocaine in the lining of her suitcase. A number of southeast Asian countries take a notoriously hard line on drugs offences, and following her conviction on 19 December 2012, Ms Sandiford was sentenced to death. Many media outlets have reported that in Indonesia, death sentences are generally carried out by a firing squad.
Mousa & Ors, R (on the application of) v Secretary of State for Defence  EWHC 1412 (Admin) (24 May 2013) – Read judgment
Remember the Iraq War? Following the 2003 invasion Britain remained in control of Basra, a city in South Eastern Iraq, until withdrawal over six years later on 30 April 2009. 179 British troops died during that period. But despite there over four years having passed since withdrawal, the fallout from the war and occupation is still being resolved by the UK Government and courts.
Thousands of Iraqis died in the hostilities or were detained by the British. Thanks to two decisions of the European Court of Human Rights in July 2011 (Al-Skeini and Al-Jedda – our coverage here), the state’s duty under the Human Rights Act to investigate deaths and extreme mistreatment applied in Iraq at that time. It is fascinating to see how the UK authorities have been unravelling the extent of that duty. The Baha Mousa Public Inquiry has reported and the Al-Sweady Public Inquiry is ongoing (I acted in the former and still do in the latter). In this major judgment, which may yet be appealed, the High Court has ruled the manner in which the UK Government is investigating deaths and perhaps mistreatment is insufficient to satisfy its investigative duty.
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment UPDATED
A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment 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.
US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al - Read Judgment
In a long-awaited judgment, the United States Supreme Court has decided unanimously that there was no jurisdiction for a US federal court to hear a claim by a group of Nigerians alleging that the respondents assisted the Nigerian government to kill, rape, beat and arrest individuals who protested against Shell’s environmental practices.
The judgment has already attracted a lot of commentary, from those claiming it is undermines US leadership on human rights to those who argue it is sensible or a mixed bag. The claimants, who resided in the United States, filed suit against the respondents (Dutch, British and Nigerian corporations) in federal court under the Alien Tort Statute (the “ATS”).
R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,
and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45
Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.
The first development is a decision by the CJEU on the meaning of those words.
The second is a new set of rules providing for protective costs orders in environmental judicial review claims. Continue reading
Stevens v. Secretary of State for Communities & Local Government, Hickinbottom J, 10 April 2013 read judgment
As the judge explicitly recognised, this case raised the clash of two principles – how to resolve the policy-driven field of planning with the rights of family under Article 8 ECHR and of the child under Article 3 of the UN Convention on the Rights of the Child (UNCRC).
The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The Council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.
Last Friday, 5 April, saw a break-through in negotiations as to how the EU is to accede to the ECHR – see the Draft Agreement on Accession of the European Union to the European Convention on Human Rights. There has been a lot of speculation (e.g. my post of June 2012) about how the roles of the EU Court (the CJEU) and the Strasbourg Court might be fitted together. Now at least we have some of the proposed answers, though there are a number of formal steps to be undergone before it comes into law.
The move is a culmination of a process trailed as long ago as the 1970s, though kick-started more recently by Article 6 of the Lisbon Treaty of European Union. This entered into force in 2009, and says that the EU “shall” accede to the ECHR. Negotiations started in earnest in 2009/10, initially with negotiators from 14 Convention countries (7 in the EU, 7 ECHR but non-EU members) who met with members of the European Commission, and latterly involving all 47 Council of Europe countries. Those negotiators have now reached agreement.