Category: European

US press response to Abu Hamza extradition decision

11 April 2012 by Rosalind English

Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11),  following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says

Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.

Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain

has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade

According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States.
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The Erika disaster – why we need an international environmental court

8 April 2012 by David Hart KC

A long saga with a very new twist which should make even the most strident critic of international courts think again.

On 12 December 1999, the Erika sank some 60 nautical miles off the Brittany coast, spilling some 20,000 tonnes of heavy fuel which in due course polluted some 400 km of the French coastline. On 24 May 2012, the Cour de Cassation is due to rule on whether Total is criminally liable for the spill. Previous courts (the Criminal Court of First Instance, and the Court of Appeal in Paris)  had said that it was. But now Advocate-General Boccon-Gibod has recently advised the Cour de Cassation that Total has no criminal liability. The problem, as often with international environmental issues, particularly criminal ones, is the jurisdiction for the offence charged – can, in this instance, the French prosecute this crime, even though someone  can also do so somewhere else?  What better reason for the founding of an international environmental court – a forum where one tribunal can seek to enforce common rules against those responsible for major pollution, wherever the pollution occurs and wherever the parties may be resident.

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Cornish waste incinerator case reversed- expectation not legitimate after all

30 March 2012 by David Hart KC

R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government, Court of Appeal, 29 March 2012, read judgment

The CA has just held that Collins J was wrong to hold (per my previous post) that the local NGO had a legitimate expectation that the Secretary of State would decide an air pollution issue, rather than  leave it to the Environment Agency. In a nutshell, the Inspector (and hence the Secretary of State) was entitled to change his mind on this issue. So the expectation crumbled, and so did this judicial review to quash a decision to allow a waste incinerator to proceed.

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Promptness yet again in judicial review: It’s Complicated

29 March 2012 by David Hart KC

Berky, R (on the application of) v. Newport City Council, Court of Appeal, 29 March 2012, read judgment

Reasons and evidence in Europe

22 March 2012 by David Hart KC

Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union, read judgment

Fulmen, as many of you will know, means thunderbolt in Latin. So it must have seemed when this Iranian company had its assets frozen. This case is a good example of how general principles of European law were applied to annul measures taken against these Iranian applicants. The measures were part of EU policy to apply pressure on Iran to end nuclear proliferation. Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian is a director of Fulmen. Hence they were both listed in Council Decision 2010/413/CFSP. The upshot was that all of their assets were frozen by the EU.

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Future of human rights court must not be decided by shadowy late night deals – Angela Patrick

13 March 2012 by Guest Contributor

This post, by Angela Patrick, Director of Human Rights Policy at JUSTICE, is the fourth in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

It’s a busy week for the debate on human rights reform. Today at 2:15pm, the Joint Committee on Human Rights will question the UK judge and current President of the European Court of Human Rights, Sir Nicolas Bratza. Sir Nicholas returns to the UK in a hailstorm of UK reporting – accurate and inaccurate – on the perceived failings of the Strasbourg Court and its judges.

His visit coincides with the expected production of the second draft of the Brighton Declaration which will set out the latest list of reforms to the Strasbourg Court the UK Government asking the Council of Europe to consider. It also follows the departure of Michael Pinto-Duschinsky from the Commission on a Bill of Rights, citing irreconcilable differences and his concern that criticism of the Strasbourg court’s lack of democratic legitimacy was falling on deaf ears.

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Law, politics, and the draft Brighton Declaration – Dr Mark Elliott

9 March 2012 by Guest Contributor

The European Convention (via CoE)

This is the third in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Although not a “supreme law bill of rights”, the Human Rights Act 1998 is a significant constraint upon the political-legislative process. In this post, I argue that the extent of that constraint would likely diminish were the draft Brighton Declaration implemented in its present form.

At present, the Human Rights Act (HRA) serves two distinctive and important “bridging functions”. On the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism: although the doctrine of parliamentary sovereignty is formally undisturbed, the HRA reduces the political scope for legislative interference with rights by making the ECHR a benchmark by reference to which legislation falls to be judicially assessed – and condemned, via a declaration of incompatibility, if found wanting.

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Reforming or redefining the European Court of Human Rights? – Noreen O’Meara

8 March 2012 by Guest Contributor

This is the second in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Reactions to proposals for reforming the European Court of Human Rights contained the recently leaked Draft Brighton Declaration have been rightly critical.  Concerns have been directed at specific features which could impact on the essential role and function of the Court, inhibit access to the court for victims, and which may prejudice the practical impact of the HRA 1998 and the debate on replacing it with a UK Bill of Rights. 

It is testament to the eagerness with which these reforms are awaited—and the weaknesses which have been detected—that the Open Society Justice Initiative has launched a petition against the direction these proposals are taking.

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Who should have the final word on human rights? – Dr Ed Bates

6 March 2012 by hrupdateadmin

This is the first in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Much of the criticism directed toward the European Court of Human Rights over the last year or so, in this country at least, has been that it is too ready to overrule decisions made by the competent United Kingdom national authorities. It is said that British courts have already addressed the relevant human rights arguments under the Human Rights Act, so it is quite wrong that Strasbourg should now ‘overrule’ them.

A recent high profile example, apparently, was Strasbourg’s finding of a violation of the Convention in the Abu Qatada case, despite the House of Lords’ earlier ruling, holding no violation of the ECHR. (See, for example, the Home Secretary’s expressions of frustration about this).

The leaked (British) draft of the Brighton Declaration (for commentary, see here, here and here) concerning the on-going reform of the ECHR is apparently seeking to rebalance matters in this regard, and perhaps put the Strasbourg Court in its place.

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Can UK courts pass judgment on due process in other Convention countries?

5 March 2012 by Rosalind English

Merchant International v Naftogaz International [2012] EWCA Civ 196 – read judgment

The Court of Appeal has ruled that domestic courts may refuse to recognise a judgment of another Convention country on the basis that it failed to respect the fair trial principles in Article 6.

In this case the Ukraine Supreme Court was said to have “flagrantly” disregarded the principle of legal certainty. Whilst the English court should apply a strong presumption that the procedures of other Convention States complied with Article 6, it was not wrong for an English court to consider whether a judgment of a court of a Convention State contravened the Convention.
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Annulment: all or nothing? Walloons in a mess about muck-spreading

4 March 2012 by David Hart KC

Case C-41/11,Inter-Environnement Wallonie ASBL,Terre wallonne ASBL v Région wallonne, CJEU, 28 February 2012, read judgment

Some years ago, Belgium got itself into trouble for not properly implementing the Nitrates Directive, a measure designed to limit the amount of water pollution arising from muck-spreading and other good old-fashioned agricultural activities. And then it got itself into trouble under another Directive (the Strategic Environmental Assessment Directive) for the way that it then went about amending the law to address nitrates. So the nitrates amending law got annulled. But what to do then? Because a defective nitrates law was better than none at all. This was the conundrum which faced the CJEU in this recent case.

The latest round of this saga started when NGOs challenged the way in which the Walloon government sought to amend their water law in line with the Nitrates Directive. They went to the Conseil d’Etat to annul the amendment, because it did not comply with the SEA Directive. In 2009, the Conseil d’Etat referred the case to the CJEU, asking whether the nitrates amendment was a strategic plan or programme with the meaning of the SEA Directive. In 2010, (C-105/09) the CJEU said it was, in principle, it being for the domestic court ultimately to rule on the issue. In due course, the Conseil d’Etat confirmed this view by ruling that the nitrates amendment was in fact such a measure.

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Draft declaration on British ECHR reform plans leaked – Antoine Buyse

29 February 2012 by Guest Contributor

Updated | The French translation of the draft of the so-called ‘Brighton Declaration’ (the seaside city where state parties to the ECHR will meet in April to discuss reforms of the Court and the Convention) has been leaked after the UK government refused to circulate the text publicly.

Last week, the draft was presented to the Ministers’ deputies of the Council of Europe. Amongst other, the draft suggests to include the principle of subsidiarity and the margin of appreciation explicitly in the Convention text – I am not sure what that would change to current practice, unless it becomes mandatory for the Court to give a margin of appreciation.

Also, the time to lodge complaints after all domestic remedies have been exhausted would possible be reduced from the current six months to two, three or four months. One of the most controversial aspects is that the Court would be barred from considering cases “identical in substance to a claim that has been considered by a national court”, according to BBC reporting, “”unless the national court “clearly erred” in its interpretation, or raises a serious question affecting the interpretation of the Convention” according to the Open Society Institute. This would carry in it the danger of almost completely taking away any substantive role for the European Court of Human Rights.

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The democratic legitimacy of human rights

28 February 2012 by Rachit Buch

Why should we bother with the European Convention on Human Rights? Many of those that would never contemplate leaving the ECHR still question whether we should abide by controversial decisions such as those on prisoners’ voting rights or deportation. UCL’s Professor Richard Bellamy attempted to answer this question at the Statute Law Society’s talk on Monday evening. He said that the UK should abide by the ECHR, which gains its legitimacy by being the best way for democratic states regulate their relationships and protect their citizens’ rights.

The talk was entitled ‘The Democratic Legitimacy of International Human Rights Conventions’ (IHRCs). Although perhaps not in such terms, this is a topic that exercises many every week: from those questioning who exactly decides which human rights are the ones that count, to those asking why ‘unelected judges’ in Europe can tell a democracy how to govern itself. Professor Bellamy started by noting that mature democracies are generally less keen on IHRCs; at the post-war inception of the ECHR, he said it was Germany and Italy showing most enthusiasm. Even now, many ‘democratising’ countries show less opposition to Europe’s human rights structures.

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Belgium bitten by Aarhus – again

19 February 2012 by David Hart KC

Solvay, CJEU, 16 February 2012 read judgment

This case is a sequel to C-128/09 Boxus, CJEU, 18 October 2011, for which see my post. Boxus was a reference from the Belgian Conseil d’Etat. Solvay was a reference from the Belgian Constitutional Court, with a wide set of questions asking, in effect, whether ratification by the Walloon Parliament of various airport and railway projects got round various challenges set by the Aarhus Convention, the EIA Directive, as amended, and the Habitats Directive.

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Does a risk of an explosion engage Article 8?

15 February 2012 by David Hart KC

Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment

This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.

As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.

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