Category: Article 2 | Right to life


Al-Skeini may open door to more war claims

15 August 2011 by

The recent European Court of Human Rights (ECtHR) judgment in Al-Skeini will certainly enter the Court’s hall of fame as a landmark judgment for pushing the boundaries of the European Convention on Human Rights’s jurisdiction. While it may take us some time to appreciate the full implications of this judgment, one of its possible consequences is the potential opening of the Court’s doors to claims arising from international armed conflicts.

by Melinda Padron

In Al-Skeini, the ECtHR determined that there may be instances when the European Convention on Human Rights may apply outside the ‘espace juridique’, that is the Convention’s ‘legal space’, or within the territories of the Convention’s member states (see Alasdair Henderson’s post on the ruling, which concerned Article 1 of the Convention). This may occur when agents of a member state are exercising authority and control over individuals (personal rather than strictly territorial control) within a given territory upon which that same member state is exercising some public powers. Accordingly, in the case of Al-Skeini, the Convention was found to be applicable to actions taken by British troops in Basra (Iraq), where the UK assumed the exercise of some of the public powers normally exercised by a sovereign government (see paras. 149-150 of the judgment).

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Will the Detainee Inquiry be human rights compliant?

8 August 2011 by

Ten human rights campaign groups and the lawyers for a number of detainees alleging UK involvement in their mistreatment have confirmed that they will be boycotting the impending Detainee Inquiry.

We recently posted on the publication of the Terms of Reference and the Protocol for the Detainee Inquiry and set out some of the reaction to it. At the time, a number of lawyers representing those who claimed to have suffered mistreatment threatened to boycott the inquiry, claiming it would be a whitewash. As the BBC has reported, they have now been joined by a number of Human Rights organizations, and it seems that the clear intention is for the boycott to go ahead.

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War, power and control: the problem of jurisdiction

14 July 2011 by

The decisions by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda, handed down last Thursday, have generally been hailed as leap forward for human rights protection. We have already provided a summary of the decisions and pointed to some of the commentary here.

However, it is worth considering the core parts of these rulings a little more carefully. Without wishing to put too much of a dampener on the initial excitement from human rights campaigners about the outcome, the Court’s reasoning is perhaps not quite the radical breakthrough it first appeared to be. In fact, as Judge Bonello pointed out in his concurring opinion (which has drawn a lot of attention for his comments about ‘human rights imperialism’), the principles governing jurisdiction under Article 1 of the ECHR are not that much clearer following these decisions.

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Strasbourg judge: “Those who export war ought to see to the parallel export of guarantees against the atrocities of war”

7 July 2011 by

Updated | The legal blogs have been busy reporting on this morning’s important decisions of the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jeddasee my post.

There has been coverage already from PHD Studies in Human Rights, the Human Rights in Ireland Blog (update – see also EJIL: Talk: “Let me put this as strongly as I can: this is as close as we’ve ever come to the European Court overruling Bankovic. And good riddance – except, as we will see, the Court’s disavowal of Bankovic is only half-hearted at best.”). The Guardian has also published an article on the case in which Phil Shiner of Public Interest Lawyers claims that the decisions will reopen the case for a wider public inquiry into alleged detainee mistreatment in Iraq; the firm recently failed in a judicial review of a decision not to hold a public inquiry on behalf of 127 Iraqis.

Many thanks to Antoine Buyse of the ECHR Blog for highlighting the lyrical and eminently quotable concurring opinion of Maltese Judge Giovanni Bonello, who since writing the judgment has retired from the court. Bonello said that he would have applied a slightly different “functional jurisdiction” test to decide whether the applicants fell within the jurisdiction of the United Kingdom.

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European Convention on Human Rights applied in Basrah, UK failed duties to Iraqi civilians

7 July 2011 by

Al-Skeini v. United Kingdom, European Court of Human Rights Grand Chamber (Application no. 55721/07) – Read judgment / press release

Al-Jedda v. the UK (Application No. 27021/08)- Read judgment / press release

The Grand Chamber of the European Court of Human Rights has ruled that from 1 May 2003 to 28 June 2004 the UK had jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights in respect of civilians killed during security operations carried out by UK soldiers in Basrah.

The court went on to find in Al-Skeini that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention. The court awarded 17,000 euros to five of the six applicants, in addition to 50,000 euros in costs jointly.

In Al-Jedda, the court found a violation of Article 5 (1) (right to liberty and security) of the European Convention in relation to the internment of an Iraqi for more than three years (2004- 2007) in a detention centre in Basrah.

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Where in the world does the Human Rights Act apply?

1 July 2011 by

Smith & Ors v Ministry of Defence [2011] EWHC 1676 (QB) – Read judgment

Update, 20 June 2013: This decision has been reversed by the Supreme Court: Supreme Court gives the go ahead for negligence and human rights claims for British servicemen deaths in Iraq

The Human Rights Act applies in the UK. That much is clear. Whether it applies outside of UK territory is a whole other question, and one for which we may have a new answer when the Grand Chamber of the European Court of Human Rights gives judgment in the case of Al-Skeini and others v. the United Kingdom & Al-Jedda v. the United Kingdom next week.

The court is to give its long-awaited ruling at 10am (Strasbourg time) on Thursday 7 July. In short, the 7 applicants in the case were killed, allegedly killed or detained (Al-Jedda) by British forces in Iraq between 2003 and 2007. Both of the claims reached the House of Lords in the UK (now the Supreme Court), and in all but one case, which involved a death in a military detention centre, the court found that the Human Rights Act did not apply in Basra at the time, and therefore the UK military had no obligation to observe the requirements under the European Convention on Human Rights, and in particular article 2 (the right to life) and article 5 (right to liberty).

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Does “bringing rights home” mean bringing problems home too?

13 June 2011 by

McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment

The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?

The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length.  The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.

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Do burglars have human rights?

4 April 2011 by

The proposition that burglars have rights incites debate, and sometimes anger, which is often directed towards the Human Rights Act 1998 and the European Convention of Human Rights. However, on closer examination, the idea of “burglars’ rights” is not a new phenomenon in English law, and nor has it been imposed upon us by Strasbourg. The rights that burglars enjoy have long been part of the fabric of English common law.

There is nothing new about the idea that criminals in general, and burglars in particular, have forfeited their human rights by virtue of their criminality.

As Michael Cholbi of the University of New York has described in his article discussing felon disenfranchisement in the United States, “A Felon’s Right to Vote”, the strong conviction held by some that criminals should not enjoy the benefit of human rights is founded upon a basic intuition that “criminal acts alter the moral status of wrongdoers, permitting us to do to them what is otherwise unjust”. Essentially, having demonstrated an unwillingness to regulate their own conduct, criminals cease to be an object of moral concern.
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A shock decision?

15 February 2011 by

JR1, Re Judicial Review [2011] NIQB 5 – Read judgment

A decision of the Northern Ireland high court has highlighted the continued narrow definition of “standing”, or the right to bring a claim, under the Human Rights Act 1998.

An 8-year-old child applied to bring a claim, which included a challenge under Article 2 of the European Convention on Human Rights (the right to life), to the decision by police to introduce tasers in Northern Ireland.


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States Not Obliged to Assist Persons Wishing to Commit Suicide – Antoine Buyse

23 January 2011 by

Last week, the European Court of Human Rights decided in the case of Haas v. Switzerland (judgment in French only) that the right to private life is not violated when a state refuses to help a person who wishes to commit suicide by enabling that person to obtain a lethal substance.

The applicant in the case, Ernst Haas, had for two decades been suffering from a serious bipolar affective disorder (more commonly known as manic depression). During that time he attempted to commit suicide twice. Later, he tried to obtain a medical prescription for a small amount of sodium pentobarbital, which would have allowed him to end his life without ain or suffering. Not a single psychiatrist, of the around 170 (sic!) he approached, was willing to give him such a prescription. This would have been necessary, under Swiss law, which allowed for assisted suicide if it was not done for selfish motives (in the opposite case, the person assisting could be prosecuted under the criminal code).

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Criminals have human rights too, says Court of Appeal

29 December 2010 by

Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010) – Read judgment

The Court of Appeal has ruled that the family of a drug smuggler who died after being poisoned by 116 swallowed cocaine packages can bring a human rights claim against the state, despite his criminal behaviour.

The decision will anger those who say that the Human Rights Act is no more than a villains’ charter, doing more to protect the rights of “asylum seeker death drivers” and the murderers of headmasters. However, the court has done no more than confirm the basic principle that human rights are for all, not just for people we like.

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A welcome clarification for relatives of the dead

23 December 2010 by

Legal Services Commission v Humberstone, R.( On the application of) [2010] EWCA Civ 1479 (21 December 2010) – Read judgment

The high court was right to quash the decision of the Legal Services Commission not to recommend public funding for a mother to be represented at the inquest into the death of her 10-year-old son. However, the court of appeal has ruled that the judge’s conclusions on when the state was obliged to conduct an expanded inquest into a death were confused.

The court of appeal has upheld the decision of Mr Justice Hickinbottom in the high court, although Lady Justice Smith came to her decision by a different route and criticised his reasoning. The case is important as it lays down guidelines for when legal representation for relatives of the dead should be funded at inquests, an often controversial issue, and how this fits with the state’s duties to investigate deaths under the European Convention on Human Rights. These duties have, partly as a result of Mr Justice Hickinbottom in this case, fallen into confusion, and the court of appeal has given a welcome clarification.

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Ireland must make access to abortion easier in life threatening situations

16 December 2010 by

CASE OF A, B AND C v. IRELAND (Application no. 25579/05) – Read judgment / press release

The Grand Chamber of European Court of Human Rights has ruled unanimously that abortion must be more accessible in Ireland for women whose lives are at risk. It rejected applications that abortion must be more widely available in other circumstances.

The ruling does not represent a significant departure from the current state of Irish law – in that it does not require the state to legalise abortion more than it technically already has done – but the probable changes in the law may result in a general softening towards abortion in general, as, in theory at least, it will be much easier for women in life threatening situations to obtain an abortion. Up until now, the law has made it practically impossible to do so.

Moreover, the recognition that abortion falls under article 8 (the right to private and family life) may also lead in future to more wide-ranging judgments, along the lines of Roe v Wade in the United States.

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EU fundamental rights do not extend to US death row, says High Court

2 December 2010 by

R (on the application of Zagorski and Baze) v Secretary of State for Business, Innovation and Skills and Archimedes Pharma UK Ltd – read judgment

The Administrative Court has put down a marker on the potential applicability of the EU Charter of Fundamental Rights about the morality of certain trade with the United States. The case concerned the export of Sodium Thiopental, an anaesthetic drug that is used as a preliminary to the lethal injection for prisoners on death row. This is the first time a domestic court has made a definitive ruling on the potential role of the EU Charter in domestic law. Earlier this year the Court of Appeal referred a question on the Charter to the ECJ for determination on its relevance to asylum proceedings: see R (S) v Home Secretary & (1) Amnesty International & AIRE Centre (2) UNHCR and our post on the subject.

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UK and Strasbourg to conflict over return of Iraqi refugees

24 November 2010 by

Iraqis whose applications for asylum are unsuccessful will be continued to be deported, according to a government minister. The announcement comes despite the European Court of Human Rights effectively calling for a freeze on the practice.

The BBC reported on Monday that Foreign Office minister Alistair Burt told the them that Iraq was now considered safe enough for people to return to. An earlier post explored the legal implications of the return by the UK of Baghdad last year.  The Upper Tribunal (Immigration and Asylum Chamber) held that the degree of indiscriminate violence in Iraq was not so high that the appellants could resist return.
Other parties, such as the UN High Commissioner for Refugees, maintain that much of Iraq remains unsafe, although the majority are sent to the North where explosions and shootings are not the danger they are in the South. But as long as the UK government maintain the view that Iraq is no longer a war-torn country, there are no grounds for the Iraqi’s continued presence in here.
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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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