Category: Art. 5 | Right to Liberty


The Tallinn Bronze Soldier riots – and why Russia was in Strasbourg

14 April 2013 by David Hart QC

X20060505037_lKorobov and others v. Estonia, 28 March 2013, ECtHR read judgment

At one level, this is a story of Estonian police over-reaction to major disturbances on the streets of Tallinn, which will be found reproduced in various incidents throughout ECHR countries at various times of civil strife. But a good deal of history and politics lies behind it, and Russia’s intervention in Strasbourg, in support of the applicants’ claims under Article 3 (excessive force) and 5(1) (unlawful detention) against Estonia is of some interest. 

The Bronze Soldier, originally named “Monument to the Liberators of Tallinn” was unveiled there on 22 September 1947, on the third anniversary of that “liberation” in 1944. Not all – including ethnic Estonians – saw it as a liberation. The Germans had retreated before the Red Army arrived, and on 18 September 1944 the Provisional Estonian government had declared independence – short-lived as Estonia was rapidly incorporated into the Eastern bloc courtesy of the Red Army. So “takeover” might be a term closer to Estonians’ hearts.

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Detention pending deportation without regular review breaches Article 5 of the Convention

10 April 2013 by Rosalind English

prison2aAbdi v United Kingdom (application no. 27770/08) 9 April 2013 – read judgment

The Strasbourg Court has ruled that a Somali national’s detention pending deportation was not lawful under domestic law.

The following summary is based on the Court’s press release:

The applicant, Mustafa Abdi, is a Somali national who is currently detained in HMP Brixton. Mr Abdi arrived in the United Kingdom on 7 May 1995 and, although refused asylum, was granted exceptional leave to remain in the United Kingdom until February 2000. On 23 July 1998 he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. On 20 May 2002 the Secretary of State for the Home Department ordered Mr Abdi’s deportation and on 27 May 2002 he issued an authority for detention until the making of a deportation order. On 3 September 2003 Mr Abdi’s release became automatic; however he remained in detention on the basis of the authority issued on 27 May 2002. On 5 April 2004 the Secretary of State for the Home Department authorised Mr Abdi’s detention until his deportation.
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Terrorism Reviewer: Control Order successor “broadly acceptable”

14 March 2013 by Adam Wagner

352676_old_ball_and_chain_series_3David Anderson QC, the Independent Reviewer of terrorism legislation, has released his first report into the operation of Terrorism Prevention and Investigation Measures, introduced in 2011 with the aim of protecting the public from persons believed to have engaged in terrorism, but who can neither be prosecuted nor deported. 

TPIM subjects in 2012 were subject to restrictions including overnight residence at a specified address, GPS tagging, reporting requirements and restrictions on travel, movement, association, communication, finances, work and study. Like their predecessor, control orders, TPIMs have been highly controversial and, as Anderson points out, “vigorously attacked – from opposite directions – by civil libertarians and by the more security-minded.” However, his conclusion is that they are broadly acceptable: 
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European Court awards damages to prisoner after Parole Board backlog

15 February 2013 by Amy Mannion

man_in_prisonBETTERIDGE v. THE UNITED KINGDOM – 1497/10 – HEJUD [2013] ECHR 97 – Read judgment

On 29 January the Chamber of the European Court of Human Rights held that convicted rapist Samuel Betteridge’s Article 5(4) rights had been breached due to delays in his cases being considered by the Parole Board, and awarded him damages for his ‘frustration’.  The media furore, at varying degrees of accuracy, here and here.

The issue, by the time the matter reached the ECtHR, was whether the High Court (and the Government’s) “acknowledgment” of that Mr Betteridge’s Article 5(4) rights had been violated was sufficient redress.  In short, the ECtHR held that it wasn’t, particularly in circumstances where the systemic delays on the Parole Board Review System were caused by the Government’s failure to recognize and plan for the full effects of the IPP sentence (brought into force in the Criminal Justice Act 2003).   The ECtHR accepted that putting Mr Betteridge to the front of the Parole Board queue wasn’t the answer: that would simply jump him ahead of those who hadn’t sought judicial review.  However, damages could meet the ‘frustration’ he had been caused.

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Extraordinary rendition gets to Strasbourg – a right to the truth

31 December 2012 by David Hart QC

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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Recall of prisoner on home curfew did not breach right to liberty

25 October 2012 by Rosalind English

Whiston, R (on the application of) v Secretary of State for Justice – read judgment

When a prisoner is recalled from home detention curfew he does not suffer a fresh deprivation of liberty so as to engage Article 5(4)of the Convention.  

Since this part of Article 5 confers a right on any person who is detained to challenge the legality of the detention determined by a body sufficiently judicial in character, the lack of review would render the decision unlawful. As Lord Elias says in his opening remarks,

This is one of a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage that Article. Problems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices.
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Back in the spotlight: the detention of mentally ill asylum seekers

9 October 2012 by Lois Williams

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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When indefinite becomes arbitrary: James, Wells and Lee v UK

24 September 2012 by Jim Duffy

JAMES, WELLS AND LEE v. THE UNITED KINGDOM – 25119/09 57715/09 57877/09 – HEJUD [2012] ECHR 1706 – Read judgment / press release

As Andrew Tickell noted in his post on Wednesday the European Court of Human Rights this week ruled that the UK violated the Article 5(1) ECHR rights of three prisoners sentenced to indeterminate prison sentences for public protection, where reasonable provision for their rehabilitation was not made. 

In April 2005, the Government introduced indeterminate imprisonment for the public protection, or “IPP sentences”, whereby certain prisoners would not have a right to parole.  Instead, under section 225 of the Criminal Justice Act 2003, they would remain in prison following expiry of their tariff periods until a Parole Board had decided they were no longer a risk to the public.  Prior to an amendment in 2008, an IPP sentence was mandatory where there was a future risk of further offending, and there was an assumption of risk where there was a previous conviction for a violent or sexual offence unless the sentencing judge considered it unreasonable to make such an assumption.


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The UK and Strasbourg: a victim fantasy

19 September 2012 by Andrew Tickell

Brought to you by Andrew Tickell

Rhubarb, rhubarb. Another defeat for the United Kingdom in Strasbourg yesterday. In James, Wells and Lee v. the United Kingdom, a chamber of the Court’s Fourth Section held that indeterminate sentences of imprisonment for public protection infringed Article 5 of the Convention.  At his first Justice Questions in the House of Commons yesterday, our fresh-minted Conservative Lord Chancellor and Justice Secretary, Chris Grayling, advised MPs that:

“I’m very disappointed with the ECHR decision this morning.  I have to say, it is not an area where I welcome the Court, seeking to make rulings.  It is something we intend to appeal.”

One wonders which areas Mr Grayling would welcome the Court’s jurisdiction, but all in all, a somewhat tepid response from a man whose appointment was greeted by the Daily Mail with the enthusiastic suggestion that Grayling…

“… unlike his predecessor Ken Clarke, will have no truck with the cardboard judges at the European Court of Human Rights.”

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BC Supreme Court grasps the nettle in right to die case

21 June 2012 by Rosalind English

Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment

Interest in the “locked-in syndrome” cases currently before the High Court runs high.  We posted here on the permission granted to locked-in sufferer Tony Nicklinson  to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.

He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)

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Assange: does it matter if ministers mislead Parliament?

31 May 2012 by David Hart QC

Assange v. The Swedish Prosecution Authority [2012] UKSC 22, read judgment

Today, the Supreme Court held that Julian Assange should be extradited to Sweden for alleged rape. This is subject to further submissions on one point (concerning the Vienna Convention on Treaties), well covered by Joshua Rozenberg in his post on the lively proceedings when the judgment was handed down.

The whole of the appeal turned on one technical point, simple to state, but it took the Court 266 paragraphs to answer. Was the European Arrest Warrant which triggered the extradition request signed by a”judicial authority,” given that it was signed by a prosecutor? Most English lawyers, unburdened with the detail, would say – no, a prosecutor is not a judicial authority, indeed he or she is the opposite of that, a party. But, according to the Supreme Court, they are wrong, and so are the ministers who told Parliament that a judicial authority has to be some sort of judge or court.

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Time and time again: Article 6 to the rescue

28 May 2012 by David Hart QC

Last week Rosalind English did a summary post on the important Supreme Court case of Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 – read judgement.

The technicalities of this decision about extradition time limits are set out in her post. Here, I explore the potential implications for other cases.

The Extradition Act contains firm rules that appeals need filing and serving within 7 or 14 days, depending on the procedure. The Supreme Court decided that there should be a discretion in exceptional circumstances for judges to extend time for service of appeal, where the statutory time limits would otherwise operate to impair the right of appeal and therefore be in breach of  the right to a fair trial afforded by Article 6(1) of the Human Rights Convention. And it is this discretion which is important for a whole range of appeals  where mandatory time limits are laid down by statutes.

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When does an expert report constitute “independent evidence” of torture?

2 May 2012 by Karwan Eskerie

R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 – Read judgment

Whether expert evidence relied upon by an asylum seeker amounted to “independent evidence” of torture was the key issue before the Court of Appeal in this case . The issue arose in the context of AM’s claim against the Home Office for wrongful imprisonment contrary to the UK Border Agency’s  Enforcement Instructions and Guidance. The Guidance, which contains the policy of the Agency on detentions (amongst other things), says that where there is “independent evidence” that a person has been tortured, that person is suitable for detention only in “very exceptional circumstances”.

AM, an Angolan national, was detained pending removal following an unsuccessful appeal from the refusal of her asylum claim, the Asylum and Immigration Tribunal having found her to have “no credibility whatsoever” and rejected her evidence that she had been raped and tortured. She later launched a fresh asylum claim on the basis of new evidence, in the form of an expert report by a wound and scar specialist, Ms Kralj, which linked the various scars on her body to torture. The claim was refused again but AM won her appeal. The Tribunal this time found that she had been raped and tortured as she had claimed, causing the scars on her body.

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Irrational, inhuman and degrading: detention of a mentally ill asylum-seeker was unlawful

23 April 2012 by Karwan Eskerie

R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment

The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.

Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.

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Kettling: Can a public interest motive justify a deprivation of liberty or not? – Robert Wastell

2 April 2012 by Guest Contributor

Austin & Others v. The United Kingdom, [2012] ECHR 459, 15th March 2012 – read judgment

The Grand Chamber of the ECtHR recently tackled the question of whether the police tactic of “kettling” (verb, UK, of the police – to contain demonstrators in a confined area) amounted to a deprivation of the liberty of four applicants within the meaning of Article 5(1) of the ECHR.

The facts of this case reveal a clash of perspectives between private and public interests. However, as the applicants argued, the deprivation of liberty cannot be justified by a wider public interest motive. 
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