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New feature | Articles of the European Convention on Human Rights

5 June 2010 by Guest Contributor

The European Convention - now it has its own blog page

We have added a new “ECHR” page where you can access an index of the Articles of the European Convention on Human Rights.

The page can be accessed by clicking here, or by clicking on the “ECHR” tab at the top of any page on the blog.

Each Article has its own separate page with the wording of the Article itself and a brief summary of how it works in law.

You can access this summary by clicking on the “more info” link. You can also click on the “posts” link to see all posts on the UK Human Rights Blog relating to that Article. A few articles don’t have a live link “posts” as we have not posted on it yet. We would welcome your comments on this or on any way we can make the blog better.

The index is reproduced below:
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Whose womb is it anyway? NI Court shrinks from abortion law reform

7 July 2017 by Rosalind English

The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent)  [2017] NICA 42 (29 June 2017) – read judgment

Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times.  The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.

Let me start with a much quoted proposition derived from Strasbourg law.

when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.

Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:

the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.

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Defining “dignity” – nailing jelly to the wall?

8 August 2012 by Rosalind English

In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it?  We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means?  Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise? 
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Why EU law will not make the trains run on time

21 December 2016 by David Hart KC

Govia GTR Railway Ltd v. ASLEF [2016] EWCA Civ 1309, 20 December 2016 – read judgment 

As all domestic readers know, there is a long running industrial dispute between Southern Rail and ASLEF, the train drivers’ union. The issue : DOOP  – Driver Only Operated Passenger – Trains. The company says they are perfectly safe, have been used extensively, and there will be no job losses. It claims over 600,000 journeys are being affected per day. The union strongly disputes that the new system of door closing is as safe as the old for passengers, and says that the new system is very stressful for drivers. 

Under domestic law, there appears to be no doubt that the strike action is lawful. In the time-honoured phrase, it is in furtherance and contemplation of a trade dispute, and the company accepted that a proper and lawful strike ballot was held – with a 75% turnout of members of whom 90% favoured the strike.

But the company argued that strike action was in breach of EU law, and hence it was entitled to an interlocutory injunction preventing the strike pending trial.

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“Same roof” rule excluding compensation for abuse is unlawful – Court of Appeal

31 July 2018 by Rosalind English

JT v First Tier Tribunal [2018] EWCA Civ 1735 – read judgment

Between 1968 and 1975 the appellant JT was repeatedly assaulted and raped by her stepfather in her family home. Many years later, her assailant was prosecuted for those crimes and convicted on all counts in 2012. As a victim of violent sexual crime, JT applied for compensation under the Criminal Injuries Compensation Scheme. Her application was refused on the basis of the “same roof” rule, which stated that an award would not be made in respect of a criminal injury sustained before 1 October 1979

if, at the time of the incident giving rise to that injury, the applicant and the assailant were living together as members of the same family

This criterion may sound odd to anyone with a professional or even mild interest in crime stories, where the prime suspect is considered to be a member of the family of the victim, whether of rape, abuse, or even murder. But the thinking behind the rules  – and there has to be a bright line for eligibility – was that there should be a requirement that the victim and the assailant no longer live together. This would at least suffice to ensure that the rapist or abuser would not benefit from the award accruing to his victim, and, if possible, is brought to justice.
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I have a right not to know Elena Ferrante’s real name* – George Szirtes

5 October 2016 by Guest Contributor

1

I have so many rights I am thinking of flogging some off on eBay. Though I have the right not to do so.

Transforming Strasbourg’s A1P1 right to property?

20 July 2013 by David Hart KC

“Transforming the right to property” is the title of an interesting and controversial recent post (17 July 2013) on the Strasbourg Observers blog by Laurens Lavrysen.  He declares his position up front: 

“Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons.”

These reasons can be summarised as (i) the right assumes the current distribution of wealth, and thus protects that status quo; (ii) the right can amount itself to a violation of other human rights – slavery being the most egregious example, though Lavrysen asserts more controversially the fact that intellectual property rights may restrict access to medicines affecting the right to health (iii) the right does not distinguish between the types of property its protects

thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht.

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Don’t throw the BAILII out with the bath water

26 September 2011 by Adam Wagner

The Guardian published an editorial today arguing that court judgments should be opened up to the public. The editorial challenges the fact that BAILII, the charity which currently publishes most judgments online, is not searchable on Google.

Broadly speaking, it is good to see The Guardian taking up this somewhat esoteric but important topic. As I have argued on a number of occasions (see e.g. Making Law Accessible to the Public) the Ministry of Justice needs to do more to make “raw” law, that is judgments and legislation, accessible online. But it is important to focus on the right issues.

Case law should, ideally, be searchable on Google. BAILII explains the reason for not making it so:

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The BAILII lecture: No Judgment, No Justice

21 November 2012 by Guest Contributor

For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.

Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.

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Court of Session rejects challenge to prosecution policy on assisted suicide

22 February 2016 by Thomas Raine

Ross v Lord Advocate [2016] CSIH 12, 19^th February 2016 – read judgment  

The Inner House of the Court of Session has rejected a reclaiming motion (appeal) from a decision of the Outer House in which it was held that the Lord Advocate’s refusal to publish specific guidance on the circumstances in which individuals would be prosecuted for assisted suicide did not violate Article 8 of the European Convention on Human Rights (ECHR).

Factual and Legal Background

The petitioner, Gordon Ross, suffers from Parkinson’s disease. He anticipates that there will come a time when he will not wish to continue living but, because of his physical state, he would require assistance to end his own life. Mr Ross was apprehensive that anyone who assisted him would be liable to criminal prosecution and therefore sought clarification from the Lord Advocate (the head of the prosecution service in Scotland) as to the factors that would be taken into account in deciding whether or not to prosecute.
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More bad news in the fight for a right to die

22 July 2015 by Isabel McArdle

R (o.t.a A.M) v. General Medical Council [2015] EWHC 2096 (Admin) Read the full judgment here

The High Court has rejected the argument made by “Martin”, a man with locked-in syndrome who is profoundly disabled and wishes to end his own life. This comes shortly after Strasbourg’s rejection of the Nicklinson and Lamb cases, for which see my post here.

Philip Havers QC, of 1COR, acted for Martin, and has played no part in the writing of this post. 

Martin would like to travel to a Swiss clinic to end his life, but wishes to obtain a medical report, from a doctor, to assist. He would also like to take medical advice on methods of suicide.

There is no dispute that a doctor advising him in this way will likely break the law, by committing the crime of assisting suicide. However, Martin argued that in practice, the Director of Public Prosecutions (DPP) has relaxed guidelines on when it is in the public interest to bring a prosecution against a doctor in these circumstances.

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Strasbourg rejects right to die cases

20 July 2015 by Isabel McArdle

The European Court of Human Rights has ruled that the applications to the ECtHR in Nicklinson and Lamb v UK, cases concerning assisted suicide and voluntary euthanasia, are inadmissible.

This is the latest development in a long running series of decisions concerning various challenges to the UK’s law and prosecutorial guidelines on assisted suicide and voluntary euthanasia. You can read the press release here  and the full decision here.
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There is no right ‘to be forgotten’ by internet search engines

1 July 2013 by Rosalind English

Case C-131/12: Google Spain SL & Google Inc. v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González – read Opinion of AG Jääskinen

This reference to the European Court of Justice (CJEU) concerned the application of the 1995 Data Protection Directive  to the operation of internet search engines. Apart from demonstrating the many complications thrown up by this convoluted and shortsighted piece of regulation, this case raises the fascinating question of the so-called right to be forgotten, and the issue of whether data subjects can request that some or all search results concerning them are no longer accessible through search engine.

All of these questions are new to the Court.
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Karsai v Hungary: little new on assisted dying

11 July 2024 by Guest Contributor

Introduction

Article 8

Regarding the potential violation of the applicant’s right to privacy, his primary argument centres on his desire to control the timing of his death. Due to his medical condition, he is condemned to a life of physical incapacity, pain, and existential dread. The applicant dismisses palliative care as a viable option: “While palliative care could provide relief with respect to certain aspects of his physical suffering, it could not provide relief from the experience of existential dread” (§91). Instead, he focuses on the fact that he cannot avail himself of assisted suicide provisions either in Hungary or abroad. Hungarian law prohibits assisting a patient in procuring their death, and even those aiding with arrangements for this purpose can face prosecution (§§135; 159).

The Court observed that, due to the lack of a uniform consensus among member states on assisted dying practices, each state is granted a considerable margin of appreciation in implementing policies on such sensitive issues. The court also noted, as the recent case of Mortier v. Belgium held, that the right to life (art. 2 ECHR) does not inherently exclude the decriminalisation of assisted dying. However, this decriminalisation must be accompanied by safeguards to prevent abuses of the right to life (§§126-128; 145).

The Court, finding no violation of art. 8, held that Mr Kasai’s suffering could not dismissed lightly. It noted that the applicant’s complaint mainly focused on “existential suffering” that “although it amounts to genuine and severe anguish, existential suffering relates essentially to a personal experience, which may be susceptible to change and does not lend itself to a straightforward objective assessment” (§158). Furthermore, the Court acknowledged that “existential suffering may be refractory to medical treatment […] and that the use of sedation to alleviate it might be contested or unwarranted in certain situations […]” (§157).  Professor Aubry, one of the experts consulted by the Court, emphasised two key points. First, he noted that patients suffering from the same condition as the applicant often exhibit ambivalence about their desire to die as the disease progresses. Second, he underscored the importance of palliative care for individuals affected by ALS, particularly in advanced stages, when they are typically permitted to receive palliative deep sedation and can die peacefully (§46).

Article 14

Regarding the violation of art. 8 ECHR and art. 14 ECHR the Mr Karsai argued that “Hungarian law accorded different treatment to those terminally ill persons with mental capacity who suffered from refractory symptoms but could hasten their death only by means of PAD [physician assisted dying], and those who could do so by having recourse to RWI [refusal or withdrawal of life-sustaining interventions” (§170).

In this case the Court held that the applicant’s clinical picture could not be compared to that of terminally ill patients who depend on life-sustaining medical treatments (§174). In fact, Mr Kasai’s diagnosis might lead to invasive life-sustaining interventions only towards the latest stages of his degenerative illness. Furthermore, the withholding or withdrawing of unwanted medical treatments falls within the right to informed medical consent and it is subjected to specific guidelines and safeguards in order to protect the patient’s autonomy (§175).

According to Professor Sandor, who produced an expert opinion for the Court, the right to informed consent is paramount in bioethics. On the other hand, “patients could refuse care, but could not ask for something specific” (§56). For these reasons the Court held that there has been no violation of art. 14 in conjunction with art. 8 of the Convention.

Separate opinions

Two judges’ separate opinions provide an opportunity to delve deeper into the reasoning of the Court’s majority, as they both address the fundamental principles underlying the final decision. Judge Wojtyczek in his separate concurring opinion disagreed with the majority that the applicant’s request to have access to physician assisted dying would fall under his right to respect his private life. The judge emphasised how the right to life – as the practical and effective basis for the enjoyment of all other rights – may hardly “encompass decisions about one’s own life and death” and for this reason, the right to private life, should not extend to the choice of death (§4, Judge Wojtyczek partly concurring, partly dissenting opinion). He noted that the suffering stemming from a personal feeling in relation to the absence of meaning of life may be exacerbated (or not properly tackled) if people can choose their own death.

Judge Felici, dissenting on both accounts with the Court’s majority, firstly emphasised his impression that “the applicant’s legitimate concerns were not taken into account, and that his legitimate request for help fell on deaf ears” (§7, Judge Felici dissenting opinion). In fact, according to Judge Felici, palliative care could not be considered a feasible option to ease the applicant’s suffering since “the expert consulted have indicated that there is currently no medical treatment capable of alleviating existential suffering” (§9, Judge Felici dissenting opinion, my emphasis). In other words, the dissenting Judge stressed an evident reality: so far medicine has not been able to offer a cure to the sentiment that life has lost its meaning. And, for this reason, assisted dying is envisaged as the only possible answer to the applicant existential cry for help. Consequently, the dissenting judge finds that the impossibility for the applicant to avail himself of assisted dying provisions both in his country and abroad would breach his right to privacy enshrined by art. 8 of the Convention.

Specifically, Hungary – compared to other member states which permit assisted dying or are paying great attention on the matter – would have failed to address the severe suffering of the applicant (§5, Judge Felici dissenting opinion). Therefore, Judge Felici dissented that in this instance the margin of appreciation doctrine (which applies on sensitive matters where there is no uniform agreement) should not be invoked. Giving that, “there are no insurmountable legal obstacles to affirming a positive obligation on the part of the State, having regard to all the characteristics of this case, in relation to the application of Article 8 of the Convention” (§6, Judge Felici dissenting opinion).

Secondly, the Judge disagreed with the Court majority’s decision according to which the applicant’s medical condition should be considered similar to the one endured by terminally-ill patients subjected to invasive life-sustaining medical treatments since Mr Kasai’s condition has made him dependant on others for all his personal needs. Hence Judge Felici argued that “the subordination of the decision to take one’s life to whether one is dependent on life-saving treatment represents an unnecessary reduction of the protection of the right to life and an interference in private life, understood as the individual’s capacity for self-determination” (§13, Judge Felici dissenting opinion).

Dr Ilaria Bertini is a Research Fellow at BIOS Centre

‘Fairness’ in an unfair world

15 April 2011 by Rosalind English

Andrew Crosbie v Secretary of State for Defence [2011] EWHC 879 (Admin) – Read judgment

The Administrative Court has ruled that the employment of an army chaplain involves a “a special bond of trust and loyalty” between employee and state such that the full panoply of fair trial rights under Article 6 could not apply.

This interesting judgment by Nicol J provides an illuminating analysis of the role of Article 6 in military employment disputes, exploring the scope of the “civil rights” concept for the purposes of that provision, and the extent to which these kinds of disputes are excluded from its purview by Strasbourg case law.

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