14 August 2015
I am are delighted to announce the launch of RightsInfo’s new infographic project:
The European Court of Human Rights Uncovered: What it does, who it protects, why it matters
If you care about spreading accurate information on human rights, then please share the infographic and individual cards as widely as possible.
24 September 2010
Some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here:
Judge’s veiled criticism of Israeli actions in Gaza causes a legal dilemma – Joshua Rozenberg: I posted on this in July (see here). A judge in a criminal damage case gave what appears to be a biased summing up to the jury, expressing political views about the war 2008/9 Gaza. Joshua Rozenberg asks what, if anything, can be done about it.
Mental health tender criteria ‘discriminate against smaller firms’ – The Law Gazette – More trouble for the Legal Services Commission? The Law Society are already judicially reviewing their tender for family legal aid work.
14 August 2014
Updated | Here is a good example of how human rights myths spread. In October 2013 the Daily Mail and other newspapers published some totally misleading and inaccurate figures about European Court of Human Rights damages. The following month, after a complaint and a slap on the wrist from the Press Complaints Commission, the Mail corrected its figures – the full story is here.
By like a particularly troublesome zombie, or Theresa May’s (zombie?) cat, human rights myths have a tendency to rise from the dead and this case is no exception. On 13 August 2014 Stephen Pollard, writing in the Express, said this:
Last year for instance figures released in the House of Commons Library showed that murderers, paedophiles and rapists had been given £4.4million of British taxpayers’ money because of rulings by the ECHR. Abu Qatada himself received £2,500 before he was deported as compensation for what was deemed his unlawful detention.
25 July 2022
In the news
Last week, the EU launched new legal action against the UK over the Northern Ireland protocol. The four new claims, which concern a failure to apply the customs and tax rules as agreed in 2019, are prompted by the Northern Ireland Protocol Bill passing through parliament that plans to discard the arrangements. Under the bill, companies in Great Britain who wish to export to Northern Ireland could choose between meeting either the UK or the EU regulatory standards. The EU’s Brexit commissioner described such terms as “illegal”, and justified the action as a response to the UK’s “unwillingness to engage in meaningful discussion since February”. The four new challenges come on top of three other cases already underway, all of which will come before the European Court of Justice.
Charles Bronson, “Britain’s most notorious prisoner”, is the first person to formally ask for a public Parole Board hearing following rule changes that came into force on Thursday. In deciding whether to grant a public hearing, the board’s chairman will take into account the victims’ wishes, the risk of trauma, the vulnerability of the prisoner, and whether any witness evidence would be affected. The reform followed a case in 2020 in which Bronson successfully argued that Ministry of Justice regulations preventing public hearings breached his right to a fair trial. While the normal position remains that hearings will be private, the new rules allow for prisoners to request publicity, and Bronson’s hearing is expected to be held publicly late this year or early 2023.
23 September 2018
This week, two Scottish children are playing a key role in the development of the UN Day of General Discussion (Friday, Sept 28). They are the only children from the UK represented, working alongside children from across the world, including Moldova, Norway and India. See below for more details of this event.
Continue reading →
3 June 2013
M, R(on the application of) v The Parole Board and another [2013] EWHC 1360 (Admin) – read judgment
Reporting restrictions on proceedings concerning a life prisoner should be discharged since the public interest in allowing media organisations to publish reports outweighed the prisoner’s human rights.
The claimant had been convicted of the brutal murder of three infant children in 1973. Subsequent to his incarceration in open prison, his movements had come to the attention of the press. Inmates made threats and the claimant was moved to secure conditions. When he sought judicial review of a decision by the parole board in 2011 (declining his return to open conditions), the judge granted an order restricting reporting of the claimant’s identity, the details of his offences and his current location. In this hearing, various media organisations intervened to request the discharge this order.
Continue reading →
5 August 2015
Serdar Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843 – read judgment
The Court of Appeal has held that UK armed forces breached both Afghan law and Article 5 of the ECHR by detaining a suspected Taliban commander for longer than the 96 hours permitted by ISAF policy.
The MOD was therefore potentially liable at both public and private law for the failures to make arrangements for extended detention and to put in place such procedural safeguards as were required by international human rights law. Moreover, the defence of ‘act of state’ was not available against either the public or private law claims.
Continue reading →
19 November 2012
The Prime Minister is to “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review. David Cameron told business leaders today:
“When this country was at war in the 40s, Whitehall underwent a revolution. … everything was thrown at ‘the overriding purpose’ of beating Hitler. … this country is in the economic equivalent of war today – and we need the same spirit. We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race.”
The detail of the changes is yet to be revealed (update – more detail is now available on the Ministry of Justice website, including the promise of a public consultation), but the PM plans to ” reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting.”
Clearly some of the PM’s Dunkirk spirit rhetoric is aimed at cheering up business leaders, who need a lot of that at the moment. But putting the rhetoric aside, there is cause for concern here.
2 March 2014
R(Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin) – read judgment
Mr Gul had been imprisoned for a period, on 24 February 2011, for disseminating terrorist publications. When he was released on 6 July 2012, this was under licence, as is common following the release of dangerous prisoners. Mr Gul challenged some of the conditions of his licence by judicial review. The court rejected his challenge.
The purposes of releasing offenders from prison on licence, allowing them liberty under conditions to be supervised by a probation officer, are clear enough – protecting the public, preventing reoffending, and securing the successful reintegration of the prisoner into the community, as set out in Section 250 (8) Criminal Justice Act 2003.
18 February 2014
McLoughlin, R v [2014] EWCA Crim 188 (18 February 2014) – read judgment
The Court of Appeal has today ruled that judges can continue to impose whole life orders in accordance with Schedule 21 of the Criminal Justice Act 2003.
On the facts of two individual cases, the Court increased the sentence of Ian McLaughlin to one of a whole life term for the murder of Graham Buck. The Court dismissed an appeal by Lee Newell against his whole life order for the murder of Subhan Anwar.
The following is based on the Court of Appeal’s press summary.
Continue reading →
22 May 2017
After one leaked manifesto and many accusations of plans to bankrupt the UK, we have finally been presented with the official pledges of the main parties. Indeed, the manifestos appeared to herald good news for the European Convention on Human Rights, to which the Conservative Party have thrown a lifeline.
15 February 2012
There are those who think that the Strasbourg Court sometimes talks through its fundament. Others are of the view that the sun shines out of it.
This may of course have something to do with the Court’s jurisdictional basis, whose proper name is the Convention for the Protection of Human Rights and Fundamental Freedoms. Be that as it may, over the years the Court has become increasingly inclined to describe so many rules, principles, aspects of people’s relationships with each other and sundry other understandings and agreements of civil society as “fundamental” that the word has ceased to resonate with its original meaning as basic, essential, primary, central, or even foundational.
1 June 2010
Read posts on this ArticleArt.2 European Convention on Human Rights provides as follows:
(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is necessary:
(a) in defence of any person from unlawful violence.
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained.
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
The corresponding provision in the EU Charter is also Art.2 which reads:
(1) Everyone has the right to life.
(2) No one shall be condemned to the death penalty, or executed.
The right to life is not absolute, although the limitation carved out in the first paragraph of the ECHR provision ceases to apply now that the UK has ratified Protocol 6, in pursuit of its undertaking so to do in the Human Rights Act 1998 , and the death sentence has been abolished altogether from the statute books. The UK cannot now reintroduce the death penalty in future, except for acts committed in time of war or imminent threat of war.
Art.2 is relevant to several aspects of State power:
The right to respect for life, following the case of Diane Pretty v United Kingdom, does not include the right to die with dignity, although this element is considered in this context together with the right to physical integrity and privacy under Article 8. This extended implied right under Article 2 does not oblige the state however to enable a sufferer from severe mental bipolar disorder to obtain, without a prescription, a substance enabling him to end his life without pain and without risk of failure: Haas v Switzerland (2011).
While special duties are owed by the authorities to protect the lives of prisoners from harm, including suicide, the Court has observed that the measures imposed should take into account principles of dignity and self-determination, indicating that oppressive security measures may go too far. In Keenan v UK ECHR 2001, where the applicant’s son committed suicide in his cell, the Court found that the prison authorities were aware of his mental problems but had taken reasonable steps by placing him in prison hospital care and under close watch when he showed signs of suicidal tendencies. There had been no reason on the day of the incident for the authorities to suspect that an attempt was likely.
In addition to the express obligation on states to respect the right to life, the Strasbourg Court has developed an implied duty on states to investigate suspicious deaths or disappearances. Critics suggest that this maneouvre was motivated by the court’s desire to avoid having to delve into “complicated and murky factual assessments” in the proliferating case law involving Turkish violations of Kurdish rights:
Extending human rights to create additional procedural obligations on states served as a cost-efficient substitute for a lack of evidence to deal with a growing docket of cases. The court has legislated its way out of its own internal problems. (Dominic Raab, The Assault on Liberty, Fourth Estate, London 2009)
Be that as it may, the domestic courts have not been slow to respond to Strasbourg expansionist tendencies in the interpretation of Article 2. The right to life now engages the responsibility of the government for the deaths of soldiers in combat, whether they have been killed by enemy troops or illness if their demise is due to inadequate equipment or medical care (Smith v Secretary of State for Defence, [2010] UKSC 29).
Article 2 applies in countries where the Convention theoretically has no reach. In Al-Skeini v UK (2012) the Court said that the killing of Iraqi civilians by British troops during the British occupation of the Basra region fell within the United Kingdom’s jurisdiction because Her Majesty’s army was exercising authority and control there.
More recently however, the Divisional Court has strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin (R(Long) v Secretary of State for Defence [2015] EWCA Civ 770.
As far as the Strasbourg Court is concerned, there is no right to life that can be asserted in opposition to abortion; a foetus is not protected under Article 2. However, in Vo v France [2004] ECHR 326, (2005) 40 EHRR 12 , where the mother lost the foetus due to a mistake by a doctor, the Court considered that it was neither appropriate nor desirable to decide whether the unborn child was a person for the purposes of Article 2. In Calvelli and Ciglio v Italy, where the applicant complained that the state had failed to prosecute a doctor whose negligence allegedly caused the death of his baby, the Court held that the state’s positive obligation under Article 2 to protect life required regulations in place to safeguard patients’ lives and to provide an independent judicial system which can determine the cause of death of patients in the care of the medical profession. The provision of a civil remedy which could allocate responsibility and award damages fulfilled this obligation on the state.
The failure to provide an effective examination of the circumstances of the death of the applicant’s wife in childbirth disclosed a breach of Article 2: Bryzkowski v Poland, 27 June 2006.
18 June 2012
Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The news
This week has seen the Home Secretary Theresa May take on Article 8 – and the courts – with the announcement that she was seeking the backing of Parliament on the limits of Article 8, the right to private and family life, and that she would expect judges to “follow and take into account” the views of Parliament. In other news, the Church of England submitted its opposition to gay marriage in response to the Government consultation, which has now ended, a judge in the Court of Protection ordered that an anorexic woman should be force-fed, and the Supreme Court dismissed an application by Julian Assange to reopen his appeal against extradition.
by Wessen Jazrawi
1 June 2010
Read posts relating to this articleArt.3 European Convention on Human Rights provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
This provision corresponds with Art.4 of the EU Charter which has the same wording.
Theoretically, treatment must reach an intense level of severity for a challenge under this provision to succeed. The Strasbourg authorities originally set a high threshold for treatment falling within the scope of Art.3 ; it must exceed “a certain roughness of treatment” (The Greek Case (1969) Application Nos 00003321-3/67, 11 YbK of the ECHR 501).
In principle the rule is that conditions in the home State, however appalling, do not engage the responsibility of the deporting country. However, Art. 3 is often cited in deportation and asylum cases and allegations of institutional “torture” and “degrading treatment” in the receiving states, advanced by intervening NGOs, are hard to disprove.
Following the judgment in D v United Kingdom (1997) 24 EHRR 423, that an HIV patient could not be returned to a state of origin where medical treatment was inadequate, Art. 3 has been extended to cover conditions of impoverishment and social decay in non-Convention states. In R(Adam, Limbuela and Tesema) v Home Secretary [2005] UKHL 66 the House of Lords applied this extended right to overrule legislation denying social support to asylum seekers who fail to submit their claims as soon as “reasonably practicable”. That the denial of social support was deemed to amount to torture and inhuman treatment shows how far the Convention has developed its reach as a social and economic rights instrument, where claims to social services, accommodation and a high standard of medical care can be made out under the prohibition that was drafted into the Convention in order to prevent the repeat of the sort of atrocities perpetrated in Nazi Germany. Indeed, in 2008 the Strasbourg Court stated in terms that the prohibtion on deportation extends to
the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.(N v UK, 27 May 2008)
The Strasbourg Court has recently started to distinguish “torture” from “inhuman and degrading treatment” as separate elements of Article 3 although the results in practice are the same. In the case of Gäfgen v. Germany (1 June 2010) the Grand Chamber considered that police officers threatening the applicant imminent pain for the purpose of extracting information constituted “inhuman treatment” falling within the scope of Article 3. But they also held that this method of interrogation did not reach the level of cruelty to attain the threshold of torture under that provision. On the other hand, the bar for offending treatment may being set somewhat lower according to more recent case law from Strasbourg. For example, the Court found degrading treatment in breach of Article 3 when a person was deprived of his spectacles (Slyusarev v Russia 20 April 2010) even though there was no evidence of impairment to the eyes caused by the delayed replacement. The fact that the applicant could not read or write normally was sufficient to amount to treatment in breach of Art.3. When riot police burst into schools used as shelters by G8 protestors and meted out punishment with riot sticks, this was found to have reached the level of torture under Art.3: Cesaro v Italy, 7 April 2015. Where a prisoner with chronic health conditions and a medical note recommending the avoidance of cigarettes was confined almost all day in overcrowded cells where the other occupants smoked, the passive smoking element was relevant in the finding of conditions incompatible with Art. 3 (Florea v Romania 14 September 2010). The Court has also stated that states are under an obligation to take measures to protect prisoners from passive smoking where their state of health so requires (Elefteriadis v Romania, 25 January 2011).
Article 3 imposes an obligation on the state to ensure the health and well-being of persons deprived of their liberty, although they are not expected to provide equivalent health care in prisons as compared with the outside world (Aleksanyan v Russia, 22 December 2008). In McGlinchey v UK the failure by the prison medical staff to properly monitor the state of the applicant, who was vomiting repeatedly under withdrawal symptoms, and suffering from dehydration, disclosed treatment in breach of Article 3 (29 April 2003). Outside the prison walls there is less case law, and the threshold is higher; for example lack of access by cancer patients to potentially life-saving experimental drugs which were not yet authorised did not amount to treatment in breach of Art.3 (Hristozov v Bulgaria, 13 November 2012). Leaving an asylum seeker to fend for himself on the street for over a year, without provision for shelter, food or other needs, breached Art.3 in MSS v Greece and Belgium (2011).
Domestic courts may be rowing back from their earlier generous approach to Article 3 claims – see R (on the application of EW) v Secretary of State for the Home Department, [2009] EWHC 2957 and our post on the case. More recently, the Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases (GS (India) and Ors v SSHD [2015] EWCA Civ 40. D v UK is rarely followed in current times, as signatory states’ medical and social services become more pressed and cash strapped.
However it remains the case that Article 3 has been interpreted to cover not only state sponsored persecution but the acts of private individuals as well, since it obliges governments not to return or deport anyone to a destination country where they might be exposed to danger, whether at the hands of state agents or rebel groups. This interpretation of Article 3 has prevented the deportation of a convicted armed robber to Somali because of the risk that he might get caught up in the civil war there – see Ahmed v Austria (1997) 24 EHRR 278.
Chahal v UK (1997) 23 EHRR 413 set a strong precedent for preventing states from deporting individuals to countries where they risk treatment in breach of Article 3. In Saadi v Italy (2008) No. 37201/06 the Court emphasised that Art.3 imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to inhumane treatment. The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. In Othman (Abu Qatada) v UK [2012] ECHR 56 the Court accepted that the UK and the Jordanian governments had made genuine efforts to provide detailed assurances that the applicant would not be ill treated on his return to Jordan; although in fact the applicant won on the basis of Article 6, as the Court found that he faced a flagrant denial of his right to a fair trial if deported.
The Strasbourg Court has also attracted criticism from high places for applying Article 3 to the way Parliament regulates the “reasonable chastisement” of children by their parents in the home (A v UK (1999) 27 EHRR 611).
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