ECtHR


Radical cleric Abu Hamza keeps British citizenship

17 November 2010 by

As we reported recently, the Special Immigration Appeals Commission has ruled that Abu Hamza, the extremist Muslim cleric, cannot be stripped of his British citizenship since this would have the effect of making him stateless.

This is the latest in a string of decisions by various courts in a long-running legal saga surrounding the British government’s attempts to remove Abu Hamza from the UK. Hamza is also facing extradition to the United States, but this has been stayed pending the substantive decision of the European Court of Human Rights as to whether the prospect of serving a life sentence in a ‘supermax’ US prison would breach his Article 3 rights (our analysis of the admissibility decision can be found here).

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Death penalty victory in European court for Iraqi murder suspects

5 October 2010 by

Updated Al-Saadoon and Mufdhi v the United Kingdom – 61498/08 [2010] ECHR 282 – Read judgment / court press release

The European Court of Human Rights has declared that a decision in the cases of two Iraqi murder suspects in UK custody in Iraq is now final and will not be reconsidered. The court has effectively prohibited the death penalty under the European Convention on Human Rights, despite Article 2 (the right to life) appearing to expressly allow it.

The judgment is an important restatement of the prohibition against the death penalty which has been agreed to by all Council of Europe states. However, the reasoning of the court in prohibiting it under the European Convention, founded on the men’s “mental suffering caused by the fear of execution amounting to inhuman treatment”, rather than a prohibition against states carrying out the death penalty itself, may generate difficulties in future cases relating to inhuman and degrading treatment.

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European Court human rights law now a bit more accessible

4 October 2010 by

Many thanks to the ECHR Blog for highlighting some new features of the European Court of Human Rights website which should make its somewhat labyrinth case-law more accessible.

The Court has published a number of useful factsheets on its case-law and pending cases. These cover some of the issues which commonly arise in the court, including, for instance, child protection, Roma and travellers and homosexual rights. The full list is reproduced after the break below.

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UK discriminated by making same-sex relationship mum pay more child maintenance

30 September 2010 by

J M v. The United Kingdom – 37060/06 [2010] ECHR 1361 – Read judgment

The European Court of Rights has declared that rules on child maintenance prior to introduction of the Civil Partnership Act discriminated against those in same-sex relationships.

The events happened nearly a decade ago and the law in relation to same-sex couples has greatly altered since, so it will be of limited relevance to those paying child benefit now. Of more interest is the reasoning of the majority in deciding the case under the right to peaceful enjoyment of property rather than the right to family life.

The case summary is based on the Court’s press release, and is followed by my comment.

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Media freedom under review

20 September 2010 by

Updated | Recent weeks have seen some interesting developments in the debate over freedom of expression of the press.

Last week saw a decision of Grand Chamber of the European Court of Human Rights in Sanoma Uitgevers B.V. v. the Netherlands. The case related to the protection of journalistic sources, and has been described as a “victory for press freedom”.

The court held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. The Dutch prosecutors in the case, which had ordered the production of a CD-ROM containing potentially incriminating photographs of participants in an illegal race, had therefore breached Article 10 (freedom of expression).

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Will the European Union be brought under the Human Rights Convention?

12 August 2010 by

It is possible that the European Union will soon sign up to the European Convention on Human Rights. The change would have interesting implications for European human rights law, as well as for UK citizens seeking redress for alleged human rights violations.

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It may sound odd that whilst member states are signed up to the European Convention, the European Union as a corporate body is not. But negotiations began last month (see this Council of Europe press release) on the European Union’s accession to the European Convention. The Vice-President of the EU’s Commissioner for Justice, Fundamental Rights and Citizenship said “We are now putting in place the missing link in Europe’s system of fundamental rights protection, guaranteeing coherence between the approaches of the Council of Europe and the European Union”.


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Detention by British forces in Iraq did not breach constitutional rights

13 July 2010 by

Al Jedda V Secretary Of State For Defence [2010] EWCA Civ 758 – Read judgment

The Court of Appeal has found that there was no breach of the “essence” of a right guaranteed under the Iraqi Constitution to have a prisoner’s detention reviewed by a judicial authority when the reviewing authorities were not judges, but had the necessary judicial qualities.

Mr Al Jedda was detained in Iraq in 2004 by British forces on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007 in Iraq but was at no time charged with any offence.

The case has had an interesting route through the courts which is worth summarising briefly.
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Worries over US justice system as Abu Hamza extradition delayed

9 July 2010 by

Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07 [2010] ECHR 1067 (6 July 2010) – Read judgment

The European Court of Human Rights has delayed the extradition of four men, including the notorious Mustafa Kamal Mustafa (Abu Hamza), from the United Kingdom to the United States due to concerns that long prison sentences and harsh conditions in a “supermax” prison could violate their human rights.

In this admissibility application, the four men mounted a wide-ranging attack on the US Justice system to the Strasbourg court, in terms usually reserved for lawless rogue states. The men claimed their extradition would put them at risk of harsh treatment, extraordinary rendition and the death penalty, amongst other draconian penalties. They said that the trial of non-US citizens on terrorism charges would lead to a “flagrant denial of justice”.

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Moving 106-year-old from care home not breach of human rights

7 June 2010 by

Louisa Watts v UK [2010] ECHR 793 (4 May 2010) – Read judgment

A 106-year-old woman has lost her challenge in the European Court of Human Rights to the closure of her care home. This is a latest in a line of unsuccessful human rights challenges by care home residents facing similar scenarios. Are the courts providing enough protection to this vulnerable section of society?

Louisa Watts, a 106 year-old resident of Underhill House, a care home owned and managed by Wolverhampton City Council, challenged the Council’s decision to close the home and move her to alternative accommodation. Her application for judicial review was refused, as was her appeal against that decision to the Court of Appeal. As a last resort, she took her case to the European Court of Human Rights on the basis that her Convention rights, including her rights to life and to respect for private life, had been breached.

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European Court of Human Rights sharpens its teeth

2 June 2010 by

Increasing powers

The European Court of Human Rights underwent something of a revolution yesterday with the long-delayed introduction of reforms to its rules. The changes will help the court clear its enormous backlog of cases, but also give it significant new powers to punish states which fail to implement its rulings. The UK may be one of the first on the receiving end of these new powers in relation to prisoner voting rights.

The Strasbourg-based European Court, which interprets and applies the European Convention on Human Rights, celebrated its fiftieth birthday last year. But it has recently been showing its age, creaking under the weight of its backlog of cases, running to an astonishing 119,300 waiting to be heard in 2009.

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Round-up of European Court of Human Rights Cases

1 June 2010 by

The European Court

The UK Supreme Court Blog has posted a useful round-up of key European Court of Human Rights judgments from the past few months.

The following cases catch the eye (all summaries courtesy of the UK Supreme Court Blog):

Al-Saadoon and Mufdhi v. the United Kingdom(Application no. 61498/08) (2 March 2010) This was a case about two Iraqis taken prisoner by the British troops in Iraq and handed over to the Iraqi authorities against the ECtHR’s previous orders. The ECtHR found a violation of Article 3 (prohibition of torture) as the two prisoners had been exposed to the death penalty which they would face in Iraq. This judgment is important in the context of a series of decisions and judgments on the death penalty (see paragraph. 123 of the judgment).

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Electoral commission report opens door for barred voter claims

21 May 2010 by

voter compenationThe Electoral Commission, an independent body which sets standards for the running of elections, has released its report on problems experienced by voters during the 2010 General Election. It calls for “urgent action” to ensure that “the restrictive rules which prevented participation should be changed”. This has probably opened the door to legal claims.

The Interim Report found that at least 1,200 people were still queuing at 27 polling stations in 16 constituencies at 10pm. It concludes that the main contributing factors to this problem were:

  • Evidence of poor planning assumptions in some areas.
  • Use of unsuitable buildings and inadequate staffing arrangements at some polling stations.
  • Contingency arrangements that were not properly triggered or were unable to cope with demand at the close of poll.
  • Restrictive legislation which meant that those present in queues at polling stations at the close of poll were not able to be issued with a ballot paper.

There are a number of possible legal remedies for barred voters.
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Voters seeking compensation will face uphill climb

13 May 2010 by

Not for everyone

We posted earlier this week on whether those who were locked out from voting in the 2010 General Election can claim for compensation under the Human Rights Act 1998 (read our post here). Liberty are asking spurned voters to contact them with a view to further legal action. But Joshua Rozenberg argues in this morning’s Law Society Gazette that those voters will face significant difficulties finding a legal remedy.

Our post concentrated on potential remedies under the Human Rights Act 1998, highlighting that the European Court of Human Rights has been reluctant to award monetary compensation in the past. The European Court has generally held that the “just satisfaction” remedy under human rights law was fulfilled by the fact that criticism from the court would lead to a change in the respective State’s voting system. As such, financial compensation to reflect the breach of the voters’ rights was not seperately awarded. It should be noted, however, that many of the recent cases involved prisoners and ex-convicts being barred from voting. We concluded that

Jack Straw, the Justice Secretary, has already said that the problem “shows a lack of foresight and preparation”, so it seems unlikely that voters will be left without a remedy, and that may come in the form of compensation probably by way of an out of court settlement… However, how much that will be is by no means clear, and it may be difficult to prove in practice that a person was prevented from voting as a direct result of administrative difficulties.

Rozenberg addresses potential remedies under the Representation of the People Act 1983, and in particular the potential that some ballots may have to be re-run:

What about trying to get the election re-run in a constituency where a lot of people were unable to vote? A dissatisfied voter may present a petition which may be tried by an election court. But there is little chance of a second poll unless the number of people who were locked out in a particular constituency is more than the winning candidate’s majority. Even then, there might need to be some evidence that the non-voters were likely to have supported the candidate who came second rather than, as seems more likely, that they would have voted in proportion to the constituency as a whole.

That is because section 23 of the Representation of the People Act 1983 says that ‘no parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty… if… the election was so conducted as to be substantially in accordance with the law as to elections and the act or omission did not affect its result’.

It will be clearly be difficult for spurned voters to bring claims. However, there is a strong duty imposed by human rights law on the State to conduct free and fair elections. Further, it seems that at least some of the constituencies where voters were turned away were ultimately decided by a small majority. This is unsurprising, as one would expect turnout to be higher in places where people expect the vote to be close. So, the uphill climb which spurned voters face may still lead to some kind of legal remedy.

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The human rights cost of preventing people from voting

7 May 2010 by

See a more recent post on this topic here

One of the enduring images of the 2010 General Election will be of long queues of people turned away from polling stations due to lack of facilities. This may well result in legal action. But according to Lord Pannick, the worse scandal may be the exclusion of 85,000 prisoners, which he says is “a constitutional disgrace that undermines the legitimacy of the democratic process”.

The BBC reports this morning that hundreds of voters were turned away from polling stations throughout the UK. This was initially blamed on a higher than expected turnout. The Electoral Commission has promised a “thorough review“, but legal action may follow from the individuals, who have been denied their basic rights, but also from the parties who may argue that marginal results would have been different if people hadn’t been turned away. In the likely outcome of a hung parliament, every seat counts and litigation may therefore follow (Update – Afua Hirch in The Guardian: Legal challenge to polling stations could result in byelections; meanwhile, Liberty, the human rights organisation, says that it will investigate the issue on behalf of voters.)

Those who have been disenfranchised may be entitled to claim under the Human Rights Act 1998. Article 1, Protocol 3 of the European Convention provides:

“The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

This Article imposes obligations on States, and the provision includes the right to vote. Voters should be able to claim for damages under section 8 of the Human Rights Act if they can prove that they were denied a vote due to administrative incompetence, which appears to have been the case in some places. Whilst high turnout may have been a factor, voters will argue that high turnout has been predicted for a while, and should have been planned for. Similar claims were made in respect of the controversial 2000 presidential election in the United States, which was ultimately decided by the US Supreme Court, but resulted in months of paralysis.

85,000 claims?

Whilst a few hundred appear to have been affected by administrative incompetence, Lord Pannick, barrister and cross-bench peer, argues that the absolute ban on prisoners voting runs contrary to repeated decisions of the European Court of Human Rights. We have posted recently on the tens of thousands of potential compensation claims that may result, which Lord Pannick estimates will be worth at least £750 each. Similar claims may be available to those who were denied the vote for other reasons.

Lord Pannick is scathing of the Government’s failure to implement the European decisions. He says:

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Judge’s failure to warn jury over defendant’s silence did not render trial unfair

23 April 2010 by

Article 6 human rights not breached when judge failed to give silence direction to juryAdetoro v United Kingdom (Application no. 46834/06, ECtHR)

The European Court of Human Rights has ruled that there was no violation of of the European Convention on Human Rights when a man was convicted after the judge failed to direct a jury properly in relation to the Defendant’s silence in a police interview.

Read judgment

The Court found there was no violation of Article 6 as the Defendant had not been convicted on the strength of his silence alone and there had been no unfairness in the trial as a whole.

The Applicant had been convicted of offences relating to a string of robberies. When interviewed by the police he had answered “no comment” to questions in relation to his movements recorded by police surveillance, association with other persons and whereabouts when the robberies were occurring. At trial, he admitted involvement in dealing in stolen cars and claimed that this explained the matters which the police had observed. He explained his silence on the basis that he did not wish to incriminate others.

In summing up, the judge omitted from his direction to the jury words to the effect that no inferences could be drawn from the Applicant’s silence unless its members were satisfied that the reason for his silence was that he had no answer to the questions asked or none that would stand up to scrutiny.

The Applicant argued that
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