A bluffer’s guide to human rights courts

10 September 2012 by

Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?

Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.

If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.

But, hang on, why don’t we take our human rights case first time out to the European Court of Human Rights in Strasbourg, particularly as we have ben told that we don’t have to pay anything to the other side if we lose (not something which usually happens in the domestic courts)? This is where we hit a problem – you can only go to Strasbourg when you have exhausted all domestic remedies “according to the generally recognised rules of international law and within a period of six months from the date on which the final decision was taken.” – Article 35 of the ECHR.

So, not so easy then. Say you have a case which is very difficult to win under UK law, but your chances are better in Strasbourg. A good example would be where you have a Supreme Court precedent against you, but a recent Strasbourg case with you – e.g. Keyu, decided last week, on which a post will shortly follow. This means you have to try out your human rights arguments before a judge, fail, and then try and fail before the Court of Appeal (and Supreme Court, if you are allowed to get that far). The idea of “exhaustion” of domestic remedies is twofold, first that you give the member state the opportunity of preventing or putting right the violations alleged against it, and second, you don’t clog up the Strasbourg courts with unnecessary cases which could be dealt with in, say, your local county court. Not something that the judges there (including our new man, Paul Mahoney – on the left in the image – with 30 years of administrating the ECtHR behind him) would like at all. For more detail on what is meant by “exhaustion of local remedies” see Rosalind English’s post on the subject.

Don’t forget Luxembourg…

Reasonably straightforward so far?

But now there is another European Court, and one which the tabloids (and the odd broadsheet) endlessly muddle up with the Strasbourg court. Its full name is the Court of Justice of the European Union, and it sits in Luxembourg. As the name on the tin suggests, it determines issues of European Union law. It has two bits, the Full Court and the General Court, the latter a less than helpful re-brand of its previous role as the Court of First Instance. European Union law contains human rights law, because human rights principles are part of EU law and have (belt and braces) also now been copied into the EU Charter (what is the Charter? – see this post).

But remember EU law is not just about mergers and milk quotas and faceless corporations. Most of our environmental law is European in origin. Free movement of EU citizens lies behind great swathes of immigration law. Public health, consumer protection, freedom of information, VAT, employment, discrimination, you name it, and if you scratch hard enough, you will find that much of it bears the brand of Brussels (where the laws are made) or Luxembourg (where the cases are decided). So in any such case, you may find a Euro-point – for example, the post I did recently about wanting to rely on an English default judgment in Latvia – using an EU regulation about recognition of those judgments. And once you have a Euro-point, you may have an Article 6 ECHR fair trial point, etc etc.

So how do you get on the plane to the Luxembourg court without finding that your journey is wasted? This is where it becomes a bit more difficult. Broadly, cases with private party claimants end up there for two reasons.

First, you have persuaded a domestic court that the case raises some difficult point of European law, and therefore the domestic court refers the case to Luxembourg to answer that point of law, under Article 267 TFEU. Again, take my Latvian Article 6(1) challenge as an example. Luxembourg helped the Latvians with the law (a bit), but left it to the Latvian courts then to find the facts and apply that law. So not all plain sailing, given that it takes 18 months or so to get there, and sometimes in really difficult cases you might have to go there twice if the CJEU comes up with a particularly opaque set of answers first time round.

Secondly, you can start proceedings directly in Luxembourg, but only (putting it simply) when you want directly to challenge some European law or measure, saying that it is unlawful by reference to another bit of EU law (which might include a bit of human rights principles) – here one has to reach for Article 263 TFEU In such a case, where you are challenging a bit of Euro-law or Euro-decision, and want to have it set aside or annulled, you have no choice. Domestic courts don’t have the power to do this, so you have to go to Luxembourg. For examples of these proceedings and the very restrictive rules as to standing which apply to them, see my posts here (a challenge to an EU trade law about seal fur) and here (about the EU Commission’s decisions about enforcement of pesticides and air quality rules).

But, where you have the choice, why would you want to persuade the CJEU to answer your Euro-human rights issue? The main reason is that some arguments simply go down better with the “civil” lawyers who make up most of the judges on the Court – “civil” (click here for a bit of Wiki-learning on this) as opposed to the common-law (or judge-made) tradition in which the UK (and only the UK in the EU) operates. Our domestic judges have become far more accustomed to dealing with some of the broad principles of EU law (such as proportionality or judicial effectiveness), but even so a supranational court may be more receptive to arguments which, say, threaten some sacred cow of common-law rule-making which looks a bit odd from a continental perspective.

So that’s sorted then, into its nice little boxes. But just you wait until the EU signs up formally to the ECHR (as it has to under Article 6 of the Lisbon Treaty), such that you can take the EU (and the CJEU?) to the Strasbourg Court – how will that be organised? Answer is, we don’t know the details, but see an earlier post for a taster.

For more on the human rights basics, see our Introduction to Human Rights as well as our index of each of the rights contained in the European Court of Human Rights. Each Article of the ECHR has its own page with links to blog posts relating to them.

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  1. Rosemary Cantwell says:

    Thank you very much for this interesting debate which I believe indicates just how difficult it is to define what is a Human Right?

    Habeas Corpus to my mind should be supreme – it is still used.

    Why should people who are “sectioned” under the Mental Health Act have fewer rights than even prisoners?

  2. Peter Hadden says:

    There is no mention of the UN Declaration of Human Rights, Dec 10 1948. Flowing from this Declaration is Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. You will be aware this Article specifically states: “…at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity…..” There are examples in Britain where public officials authorise the building of machinery so close to peoples homes that the escaping pulsating acoustic pollution causes violation of the right to health by virtue of extensive dosage of sleep deprivation, anguish, fear, fatigue, humiliation, etc. The authorisations are despite warnings by independent Acousticians who predict the long periods of sleep deprivation. The only recourse appears in Nuisance, but why are the UN in Geneve not interested, who is responsible for enforcing the UN Conventions flowing from the 1948 Declaration?

  3. James Wilson says:

    I don’t wish to sound flippant, and maybe it’s just me, but there seems to be an air of Lon Fuller’s hapless King Rex arising from the complexity of all these arrangements …

    1. jacqui butterworth says:

      Hi James
      dont know what you mean by:to be ‘an air of Lon Fuller’s hapless King Rex’ Human right writing sounds like gobbley gook to me. Do they use such language so we dont understand? More to the point do they understand. Or is it what one calls ‘smoking mirrors ‘ ‘an elephant in the room?

      1. James Wilson says:

        Hi Jacqui,

        It was a reference to a famous jurisprudence work by an American scholar, Lon Fuller. Fuller begins his work “The Morality of Law” with a fable about a fictional King (Rex) who conscientiously tries to invent and run a legal system. He suffers eight successive failures, each for a different reason, which Fuller uses to illustrate eight routes to legal failure:

        1.The lack of rules or law, which leads to ad-hoc and inconsistent adjudication.
        2.Failure to publicize or make known the rules of law.
        3.Unclear or obscure legislation that is impossible to understand.
        4.Retroactive legislation.
        5.Contradictions in the law.
        6.Demands that are beyond the power of the subjects and the ruled.
        7.Unstable legislation (ex. daily revisions of laws).
        8.Divergence between adjudication/administration and legislation

        Having a legal system whereby there are three separate court structures interpreting three different (if closely interlinked) sources of law (EU, ECHR, UK domestic) does seem akin to the fictional Rex’s hapless efforts. It certainly is not what one would devise if starting from scratch, I venture to suggest.

  4. Article 13 was omitted from the Human Rights Act 1998 (i wonder why) did they not want an effective remedy? Both the European Court of Human Rights and our Court of Appeal both have one thing in common – they make decisions based on the advice and facts given in a case lawyers report neither body allows you to see. In the case of the Court of Appeal a bench memorandum and in the case of Europe the rapporteurs report. Fair and transparent? I think not. Strangely three decisions in the European Court state that adviosry opinions requested by litigant must be disclosed prior to hearing if requested. one rule for them and one rule for us – yet the English Courts refuse to obey the precedents set by Europe!!!

  5. Rosemary Cantwell says:

    10 September 2012
    I am fascinated to read this blog about Human Rights as the UK seems to be in a dither as to whether or not we should actually have them or not.
    Habeas Corpus is still used but for how much longer?
    Will a Bill of Rights be superior to any EU legislation?
    Will Luxemburg trump London?
    Will the individual nations of Northern Ireland, Wales, Scotland and England have different and separate Rights?
    What happens if Scotland becomes Devolution Max?
    What happens if Scotland gains full independence?
    Whose rights prevail when there are competing interests such as people who are deemed to be mentally incapacitous?
    Whose rights prevail when there are competing interests such as people who are deemed to have mental health problems – and don’t forget that the Department of Health has stated that a quarter of the population at some point in their lives has mental health problems/illness.
    Can it ever be justified under Article 8 of the Human Rights Act to detain a person on grounds of “health and safety” when the person him or herself wishes NOT to be placed in detention regardless of what anyone else says?
    This is the root problem in my opinion of Mental Health and Mental Capacity legislation that it is the “Nanny knows best” mentality that removes individual freedom of liberty, freedom of expression, freedom of thought and freedom to make choices.
    In effect, I hope that the Mental Health Act 2007 and Mental Capacity Act 2005 are demolished by the Human Rights legislation.

    Rosemary Cantwell
    law student

    1. Super Cyan says:

      Hi Rosemary,

      Just to answer a few of your questions.

      Article 5 is basically the Habeas Corpus article, which has been derogated from in the past by the UK, which was subsequently defeated in the Courts. Habeas Corpus itself without the Article 5 HAS been suspended before in the past by Parliament.

      The only way I could see a Bill of Rights being superior is if Parliament repealled the European Communities Act 1972 and withdraw from the European Union and also pull out of the Convention. But thats an entirely theoretical debate surrounding Parliamentary Soverignty.

      European Union law is pretty much already superior if you look at Factortame and McCarthy v Smith but note what Lord Denning said ‘If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then . . . it would be the duty of our courts to follow the statute of our Parliament’ – Hence the theoretical issue of Parliament intentionally surrendering it’s soverignty etc.

      In relation to mental health, I think there are tribunals called Mental Health Review Tribunals which a detainee can challenge such decision, but don’t take my word on it, its not really my area.

      In order to have mental health legislation altered (very unlikely to demolish) you would have to prove that it’s provisions are incompatible with Convention Rights, and even then the courts can only make a declaration via s.4 of the HRA which isn’t legally binding upon Parliament.

      Hope that helps. :)

  6. Super Cyan says:

    In Hobbs v UK [2002] App. No 63684/00 the ECtHR held that a declaration of incompatibility is not a sufficiently effective remedy for the purposes of the Convention and in Burden v UK [2006] Application No 13378/05 the ECtHR confirmed that applicants who’s only remedy is a declaration of incompatibility may not be required to make a claim in national courts.

  7. I agree that if you have absolutely no chance at all domestically because some statute is dead against you, you can try to go direct. But most HR arguments don’t fall into that category. In which case let’s be realistic about it. Most claims (particularly judicial reviews) have a domestic timeframe. Too late,and you are out. So it is no good going to Strasbourg, getting kicked out as being inadmissible, and then finding you cant claim here. It would take very bold advice to say in an arguable claim -don’t bother in the UK, because you will convince Strasbourg that you did not need to exhaust local remedies.

  8. fleurblack says:

    definitely wrong …Azelle needs to go read article 35 again.

    my case is wending its way through as we speak beacuse the defence lawyers and the judges can’t be bothered to read A35

  9. Lofthouse says:

    ..Art 13 uses the phrase ‘effective remedy’ – if you dont have an effective remedy, you can plough straight in…..sure that’s been used in the past by litigants in person…

  10. Lofthouse says:

    “… you can only go to Strasbourg when you have exhausted all domestic remedies “according to the generally recognised rules of international law and within a period of six months from the date on which the final decision was taken.”
    -pretty sure you’re wrong there –

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oppressive treatment OPQ v BJM orchestra orthodox schools Osama Bin Laden Osborn v The Parole Board [2013] UKSC 61 ouster clause overseas aid Oxford University Palestinian Territories palliative care palliative sedation paramount consideration paramountcy principle parental responsibility order parental rights parenthood parents responsibility parking spaces parliament parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole parole board party funding passengers rights passing off passive smoking passport passport seizure pastor Terry Jones patent patents paternity Pathway Students patiets' rights Patrick Quinn murder Paul Chambers PCOs peace-keeping operations Pensions people for the ethical treatment of animals (Peta) performers' rights permanent injunction persecution persistent vegetative state personal data personal information Personal Injury personality rights Personal life perversity Pet Animals Act 1951 Peter and Hazelmary Bull Peter Gibson pet shops PF and EF v UK Philip Lawrence Phil Woolas phone hacking phone taps photos photovoltaics physical and mental disabilities physical restraint physician assisted death Pinnock Piracy PJS placement order planning planning human rights planning system planning time limits plantagenet plebgate pleural plaques POCA podcast points poison Poland Police police investigations police liability police misconduct police powers police surveillance policing Policy Exchange report political advertising political judges political persecution politicians for hire Politics Politics/Public Order pollution polonium poor reporting Pope Pope's visit Pope Benedict porsche 917 portal possession order possession proceedings post mortem Posts power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy preliminary reference prerogative powers press Press Association press briefing press freedom Priest priests primary legislation Prince Andrew Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers prison rules Prisons prison vote privacy privacy injunction privacy law through the front door private disputes Private life private nuisance private use procedural unfairness Procedure proceeds of crime Professional Discipline professional indemnity Professional life Property property rights proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill protective costs Protest protest camp protest rights Protocol 15 psychiatric hospitals psychology psychotherapy Public/Private public access publication public authorities public authority public bodies Public Bodies Bill public figure public funding public inquiries public inquiry public interest public interest environmental litigation public interest immunity public interest litigation publicity public law unfairness Public Order public powers public procurement Public Sector Equality Duty Public Services Ombudsman Putin putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 Race race relations Rachel Corrie racial discrimination Racial equality radio radiotherapy Radmacher Raed Salah Mahajna Raed Saleh Ramsgate randomised controlled trial rape rape case raptors Ratcliffe 6 Ratcliffe on Soar Ratcliffe power station rating rationality rcs RCW v A Local Authority reasonableness reasons reasons challenges recent case law and news Recent posts reception conditions recognition of judgments recreational rights Redfearn v UK referendum reform refugee applications refugee crisis refugee status refusal of treatment Registrar of Births Deaths and Marriages registration regulatory rehabilitation of offenders Reith Lectures Re J (A Child: Disclosure) [2012] EWCA Civ 1204 relgious freedom Religion religion in the courts religious beliefs religious discrimination religious freedom religious prosecution remedies renewables subsidies rent repeal reporting restrictions representation reproductive rights reproductive technologies reproductive wrongs rescue rescuer's claim resettlement of offenders resource allocation respect for family life responsibility in tort restrictions on exports restrictions on liberty results 2010 resuscitation retrospective application of the Human Rights Act retrospective legislation retrospective penalty retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750


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