ECtHR
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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26 February 2012 by Henry Oliver
Hirsi Jamaar and Others v. Italy (Application no. 27765/09) – Read judgment
The European Court of Human Rights has held that a group of Somalian and Eritrean nationals who were intercepted by Italian Customs boats and returned to Libya fell within the jurisdiction of Italy for the purposes of Article 1 of the European Convention on Human Rights . The return involved a violation of Article 3 (Anti-torture and inhumane treatment), Article 4 of Protocol 4 (collective expulsion of aliens), and Article 13 (right to an effective remedy). The patrols that returned migrants to Libya were in breach of the non-refoulement principle.
The applicants were eleven Somalian nationals and thirteen Eritrean nationals who were part of a group of two hundred migrants who left Libya in order to reach the Italian coast. On 6th May 2009 Italian ships intercepted them 35 miles south of Lampedusa and returned them to Triploi, in Libya. During the voyage the migrants were not told where they were going (they assumed they were being taken to Italy), nor were they identified.
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7 February 2012 by Guest Contributor
The media were successful in both the judgments handed down this morning by the Grand Chamber of the European Court of Human Rights. The judgments made it clear that the right to privacy has to be carefully balanced against contribution which a publication makes to a debate of general interest. In both cases, taking account of the nature of the individuals involved and the publications the right to freedom of expression prevailed over the right to privacy.
The judgments demonstrate the need for a careful balancing exercise in privacy cases. Both cases involved “popular journalism” and show that, even in this area, privacy is not a “trump card”. The judgments will be welcomed by the media as showing that the Court of Human Rights remains sensitive to the need to protect its freedom of expression.
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31 January 2012 by Alasdair Henderson
The Prime Minister’s speech at the Council of Europe (see our coverage here) has attracted significant press attention over the past week – ranging from flag-waving, sabre-rattling support to criticism from Sir Nicholas Bratza (the British President of the Court).
Hot on the heels of Cameron’s address on Wednesday, the Attorney-General Dominic Grieve gave a speech on Thursday which set out in further detail the Government’s plans for reform of the European Court of Human Rights and the incorporation of human rights into UK law.
The full text of the Attorney-General’s speech is not yet available (although a similar speech he gave last year and his own speech to the Council of Europe can be found here). However, it was interesting to compare his comments with those of David Cameron just a day before.
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27 January 2012 by Guest Contributor
Two recent posts on this blog have brought deserved attention to the question of the European Court’s handling of admissibility decisions. In the course of criticising the substantial misrepresentation of the statistics for UK petitions to the European Court, Andrew Tickell’s piece highlighted the significant contribution of “highly discretionary concepts” in the filtering of the Court’s caseload.
Alongside clearer procedural hurdles such as the six month time bar and exhaustion of domestic remedies, the “manifestly ill-founded” criterion may be a clear and meaningful legal term but certainly isn’t manifest exactly what obstacle it sets.
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19 January 2012 by Guest Contributor
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment – updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).
The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.
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18 January 2012 by Adam Wagner
A bit like news of a wayward celebrity, judgments from the European Court of Human Rights are now awaited with a mixture of trepidation and excitement. Whatever are those crazy unelected judges going to do next? Will this be the latest “Judgment day” for the enfant terrible of Strasbourg?
Yesterday the court released three judgments involving the United Kingdom. All three were about controversial issues: extradition, murder sentencing and terrorist deportation. The UK triumphed in the first two but failed in the third, although for surprising reasons. None of the judgments are “final”, in that the parties can still attempt an appeal to the court’s Grand Chamber if they wish. The rulings were:
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12 January 2012 by Adam Wagner
It is rightly said that 95% of statistics are made up. Today’s Daily Mail front page headline contained a typically exuberant statistical claim: Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals. According to journalist James Slack “Unelected Euro judges” are mounting a “relentless attack on British laws laid down over centuries by Parliament”.
The Telegraph’s Andrew Hough and Tom Whitehead chime in with Britain loses 3 in 4 cases at human rights court. But are they right? To add a bit of spice to this statistical journey, I will aim to use at least one analogy involving a popular TV singing contest.
The “explosive research” is a report by Robert Broadhurst, a Parliamentary legal researcher for a group of Conservative MPs. The headline grabbing figures are in this paragraph:
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15 December 2011 by Guest Contributor
Lord Irvine tonight weighed in to the debate about Britain’s relationship with the European Court of Human Rights – and effectively accused the Supreme Court of having surrendered its intellectual independence, and shirked its judicial responsibility.
His at times toughly-worded lecture to the UCL Judicial Institute and the Bingham Centre for the Rule of Law chimes with what the Attorney General Dominic Grieve has been saying recently about the need for primary responsibility for human rights protection to lie with states, not Strasbourg – and Grieve will surely approve of both the content and timing of Lord Irvine’s intervention, on the eve of the European Court’s ruling in Al-Khawaja and Tahery v. UK and in the context of Britain’s chairmanship of the Council of Europe. I’ll link to the text of his speech when it’s available.
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6 December 2011 by Rosalind English
Behind the Times paywall Anthony Lester today declares that “Sniping at Strasbourg will only hinder reform”. In his guest column, he says that Court is suffering unfair criticism from “sections of the British media” and “politicians who accuse it of over-reaching its power”. That may well be the case, but the most searing and authoritative criticism comes not from politicians or the press but from Lord Lester’s own profession – see Jonathan Sumption QC’s recent broadside (and our post) and Lord Hoffmann’s much-discussed analysis (posted here).
If the Court is indeed hobbled by unfair squibs and arrows from a resentful sector of the British populace, as Lord Lester suggests, why is the prisoner votes example the only one he can come up with? That is an important fight, at least from a constitutional angle, but not the only flashpoint; the Court’s tendency to act as fourth instance appeal tribunal particularly on deportation and terrorism cases is arguably far more “dangerous” and certainly of concern to more people than votes for prisoners.
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7 November 2011 by Adam Wagner
King of the hill... for a bit
After months of wrangling over the influence of Europe on our human rights law, today the United Kingdom begins its 6-month chairmanship of the Council of Europe (CoE)’s Committee of Ministers. Amongst other things, the CoE supervises compliance with judgments of the European Court of Human Rights.
The CoE, not to be confused with the European Council, European Union, European Commission, Court of Justice of the European Union or European Parliament, is an international organisation with 47 member states comprising over 800 million citizens – see its Wikipedia entry for more on its many functions. The UK was one of the CoE’s founding members when it joined on 5 May 1949.
Coincidentally, the court’s new British president, Sir Nicholas Bratza, began his presidency on Friday; only the third British judge to do so (see my post from July). So there is a genuinely British feel to the organisation, at least for the next 6 months.
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27 October 2011 by hrupdateadmin
In his speech earlier this week the Attorney General announced that he would appear in person before the Grand Chamber of the European Court of Human Rights in two weeks’ time, when it hears Scoppola v Italy No2, a case concerning prisoner voting. The United Kingdom is due to intervene in this case, for reasons that readers of this blog will be fully aware of.
I agree with Adam Wagner’s comments that the Attorney General’s speech should (if I may respectfully say so) be applauded for the mature and positive way it addressed some very important issues regarding the future protection of human rights at both the domestic and European level. Here I would like to focus in particular upon what Dominic Grieve said about prisoner voting, and his forthcoming appearance at Strasbourg. On page 9 of his speech he stated:
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13 October 2011 by Guest Contributor
At last week’s Inner Temple hall event, ‘Strasbourg and the UK: Dialogue or Conflict’, Lord Justice Laws asked some provocative questions:
why should judges decide matters of social policy [thrown up by human rights cases] at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, create a structure which means that a very large number of legal debates is about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them? Why are lawyers any better qualified to assess family ties in foreign criminal questions?
When the floor was opened to questions I suggested that these comments could be extended out more broadly: what was the proper role and function of the Strasbourg Court? This question, I suggest, lies at the heart of much of the recent controversy surrounding the influence of the European Court of Human Rights, especially in the context of the disagreement over whether prisoners should be able to vote.
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15 August 2011 by Melina Padron
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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20 July 2011 by Alasdair Henderson
In the midst of all the coverage of the phone hacking scandal and the mounting woes of News Corporation an interesting piece of human rights news from the past week got lost: the announcement by the Equality and Human Rights Commission (“EHRC”) that it is applying to intervene in four cases before the European Court of Human Rights being brought by Christians who claim their Article 9 rights are not being sufficiently protected in UK law.
The applicants are Nadia Eweida, Shirley Chaplin, Lillian Ladele and Gary McFarlane, each of whom has lost claims of workplace discrimination on the grounds of religion and belief in the UK courts over the past couple of years (see our general comment pieces here and here). The EHRC has now said that in its view “Judges have interpreted the law too narrowly in religion or belief discrimination claims” and that “the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.”
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