The Round Up: Fast-track Failings and Obergefell ‘egoism’

6 July 2015 by Laura Profumo

Photo credit: Guardian

Laura Profumo brings you the latest human rights happenings.

In the News:

In a critical, though arguably overdue, decision, the Court of Appeal has suspended the fast-track immigration appeals system. The process, under which rejected asylum seekers are detained and given only seven days to appeal, was held “structurally unfair” by the High Court, before being halted altogether by last week’s appeal. The ruling was welcomed by the appellant charity, Detention Action, as meaning “asylum seekers can no longer be detained…simply for claiming asylum”. Previously, the fast-track deadlines could be imposed on any asylum seeker from any country, if the Home Office considered their case could be decided quickly. This marks the third time courts have found the system to be unlawful, yet the suspension will now stay in force until a government appeal is mounted. The decision deals a major blow to a system which is “inefficient, bureaucratic, demeaning and dehumanising”, writes immigration expert Colin Yeo. Whilst there is “no doubt” a replacement fast track will soon be found, in the meantime “let us savour the respite” from such crude expediency.

In other news, the spotlight remains on America, in the euphoric wake of the Supreme Court’s ruling in Obergefell v Hodges. The final paragraph of Justice Kennedy’s judgment, in its stirring clarity, is set to make legal history. Yet not everyone is “enveloped in a warm and fuzzy feeling”, writes UKHRB’s own Jim Duffy. Justice Scalia, the firebrand conservative, “pulled no punches” in his dissent, citing the majority opinion as “egotistic” and a “threat to American democracy”. Scalia’s arrival in London last week further stoked the Obergefell debate. Speaking at a Federalist Society event, Scalia held his colleagues had wrongly used the due process clause to distill a substantive, rather than procedural, right. Defending his position as a constitutional originalist, Scalia maintained the meaning of the Constitution as fixed, rather than the “wonderfully seductive judicial theory” of living constitutions, in which “we can have all sorts of new things, like same sex marriage”. When asked about the proposed Bill of Rights, the Justice’s response was particularly biting: “You can’t do any worse than the situation you’re in now”.

Justice Scalia is not alone in his doubts. Obergefell is no panacea for LGBT rights, argues Karl Laird – the struggle for equality “may only have begun”. The slim majority of the judgment has prompted calls for a constitutional amendment, whilst presidential candidate, Ted Cruz, has argued for the abolition of life tenure for Supreme Court Justices. The “prospect of backlash” is considerable, Laird writes, LGBT activists now facing the legislative push for comprehensive discrimination protection. Only a “patchwork of protection” at state level currently exists. In Georgia, though the prohibition on same-sex marriage is now unlawful, discrimination based on sexual orientation remains “perfectly lawful”: the discrepancy is “intolerable and must be addressed”, presses Laird. Yet the Employment Non-Discrimination Act (ENDA) has still not been enacted, stalled by concerns for religious freedom which “have never been fully explored” by a reluctant legislature.

Europe may follow suit, argues Matt Evans in the Justice Gap. ECtHR has “significantly contributed to the evolution, protection, and promotion” of LGBT rights, having developed the largest body of case law on sexual orientation “of any international human rights tribunal in the world”. Currently 13 member states allow same-sex marriage, but “it might take another 10 years” for a clear majority to be reached. Until then, Evans concedes, the Court will find “insufficient ‘European consensus’” to extend the reading of Article 12 to same-sex couples. For a bracingly irreverent take on the Obergefell legacy, read the Guardian article here.

In Other News..

• A gay man has launched an equal treatment case at the Court of Appeal, arguing for the same pension rights as heterosexual couples. The applicant, John Walker, claims his husband would receive 1% of the amount that would be paid to a female spouse. The government has demurred, arguing equal pensions would cost £3.3 bn. 

• Last night, Greek voters rejected the international bailout offer, with 61% voting “No”. Though critics warn the decision could mark Greece’s expulsion from the eurozone, Greek Prime Minister Alexis Tsipras held that Greeks had voted for a “Europe of solidarity and democracy”. Despite the triumphalism, Greece must now act fast to strike a deal for fresh funding with the eurozone, with banks having been shut for a week now.

• The family of Alice Gross, the schoolgirl murdered by Latvian builder Arnis Zalkalns, will today ask for an inquiry into whether British authorities knew of Zalkalns’ former murder conviction. Alice’s family will call for an investigation into whether the police breached their positive obligation under Article 2 to protect individuals from a known risk, and whether EU countries shared information on dangerous offenders.

• Dutch judge and academic Marc de Werd offers a new perspective on EU accession to the ECHR here. Though the EU principle of “mutual trust” is “at odds” with ECHR Article 6, renegotiations for a new draft agreement may produce an “adapted” concept, enhancing the role of national judges to make “reality checks” about contested legal assumptions. This more benign approach to the doctrine may need “a bit more mutual trust from the CJEU” in its national courts, but “all that counts is whether EU law works in practice”.

• The UK’s first specialist charity law firm for criminal appeals has been launched. The Centre for Criminal Appeals will provide legal aid for alleged victims of miscarriages of justice. In light of the severe legal aid cuts, a beleaguered CCRC, and an overstretched prison system, it is hoped the charity will “blaze a trail for legal service provision”.

In the Courts: 

• Abdulla Ali v. the United Kingdom: The adverse media coverage of Abdulla Ali, the convicted ‘liquid-bomb’ terrorist, did not prejudice the outcome of criminal proceedings, ECtHR ruled last week. The case concerned Mr Ali’s complaint that, following extensive media coverage, his retrial for the charge of conspiracy to murder could no longer prove fair. ECtHR held the retrial judge had acted in accordance with Article 6, in carefully directing the jury, and considering whether enough time had elapsed to moderate the effects of the prejudicial reporting before the retrial.

• JR38: The Supreme Court dismissed the appeal of a man who argued his Article 8 right to privacy was breached by the publication of photos of him participating in a riot as a child. Whilst the majority ruled Article 8 was not engaged at all for a public riot, those dissenting held a child’s identity is protected by the right to privacy under criminal proceedings. It was unanimously agreed that publication as a last resort to identify offenders was justified and proportionate.

• Peruzzi v Italy: A lawyer’s conviction for defamation of a judge was held to be justified and did not infringe his freedom of expression, ECtHR ruled. The case concerned the criminal conviction of Mr Peruzzi, a lawyer, for having defamed an investigating judge through circulating allegations of wrongful conduct. The Court held Mr Peruzzi’s conviction could be “necessary in a democratic society” in order to protect the reputation of others and secure the impartiality of the judiciary.

• Grabowski v. Poland: Poland must take legislative measures to stop the detention of juveniles subject to correctional proceedings without a specific judicial decision, ECtHR ruled in this Article 5 case. The applicant complained his juvenile placement had been extended for five months without a specific court order. In attributing the judicial practice to the poorly framed Juvenile Act, the Court held the applicant’s continued detention was an unlawful violation of his Article 5 right to liberty. With some 340 juveniles in similar situations to the applicant, the Court called for Poland to eliminate the practice for good.

• Altuğ and Others v. Turkey: ECtHR held the Turkish authorities failed in their positive obligation under Article 2 to protect the life of a patient. The case concerned the death of a patient following a violent allergic reaction to penicillin in a private hospital. Whilst the Court held it was not their role to speculate on the responsibility of the medical team involved, the authorities had failed to ensure the relevant statutory safeguards were implemented to protect the patient’s right to life.

• A.S. v. Switzerland: The removal of an asylum seeker, suffering from PTSD, to Italy under the EU ‘Dublin’ Regulation would not violate his Article 3 or 8 rights, ECtHR held. Whilst the Court has previously raised concerns over the Italian reception system for asylum seekers, such arrangements alone could not justify barring all removals of asylum seekers to Italy.

• Khoroshenko v. Russia: the Russian prison regime allowing only short term, biannual family visits violated life prisoners’ Article 8 right to respect for private and family life. ECtHR held the regime was disproportionate to its aims, and seriously debilitated a prisoner’s social reintegration and reform. Considering that in the majority of Contracting States, the minimum frequency of family visits was once every two months, Russia’s margin of appreciation proved narrow. 

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