European Court of Human Rights


What can an Environmental Tribunal do?

6 June 2011 by

Access to environmental justice is a subject close to the hearts of various contributors to this blog, as one can see from the posts listed below. But not only to them – Sullivan LJ was the chairman of the working group that in 2008 wrote Ensuring Access to Environmental Justice in England and Wales”. Jackson LJ returned to the issue in his report on the costs of civil litigation. In December last year the Supreme Court referred to the Court of Justice of the EU, Edwards, a case about the English costs regime, and whether it complies with the Aarhus convention. Finally, in April 2011 the European Commission said it was going to refer the UK to the CJEU for failing to comply with the costs element of the Convention.

So the UKELA seminar on “Developing the new Environmental Tribunal” hosted by Simmons & Simmons on 16th May 2011, was timely, to say the least, particularly as the speakers included Lord Justice Sullivan, and Lord Justice Carnwath the senior president of the Tribunals, and Professor Richard Macrory Q.C., author of a new report on the Environment Tribunal.

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DNA case analysis: The mystery of the missing purpose

24 May 2011 by

We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.

Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”

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Reform of the European Court of Human Rights: response to a modest proposal

4 April 2011 by

In an interesting post, Aidan O’Neill QC concludes that the European Court of Human Rights is “in danger of imminent collapse” due to its backlog of 140,000 applications with around 1,600 arriving every month; a conclusion compounded by inherent delays. He suggests that the way to draw back Strasbourg from the brink of judicial Armageddon is to abolish the individual right to petition Strasbourg and to introduce a referral system whereby national courts request Strasbourg’s opinion on human rights issues, akin to the Court of Justice of the European Union (CJEU).

by Graeme Hall

I must disagree. Strasbourg’s jurisdiction spreads across 47 contracting States, ranging from diverse populations such as Liechtenstein and Malta to Russia and Turkey. In turn, the Court is the guardian of the European Convention on Human Rights for over 800,000,000 individuals. The 61,300 valid applications which Strasbourg received in 2010 represent applications from 0.0077 per cent of the population to which the Convention applies. Given the importance of the Convention to the protection of fundamental human rights and freedoms, I find it surprising that Strasbourg does not receive more applications.

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Ireland must make access to abortion easier in life threatening situations

16 December 2010 by

CASE OF A, B AND C v. IRELAND (Application no. 25579/05) – Read judgment / press release

The Grand Chamber of European Court of Human Rights has ruled unanimously that abortion must be more accessible in Ireland for women whose lives are at risk. It rejected applications that abortion must be more widely available in other circumstances.

The ruling does not represent a significant departure from the current state of Irish law – in that it does not require the state to legalise abortion more than it technically already has done – but the probable changes in the law may result in a general softening towards abortion in general, as, in theory at least, it will be much easier for women in life threatening situations to obtain an abortion. Up until now, the law has made it practically impossible to do so.

Moreover, the recognition that abortion falls under article 8 (the right to private and family life) may also lead in future to more wide-ranging judgments, along the lines of Roe v Wade in the United States.

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Courts entitled to ignore European DNA and fingerprints ruling… for now

1 September 2010 by

R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment

Last month, Matt Hill posted on a case relating to the retention of DNA profiles and fingerprints by the police, for which the full judgment is finally available. Permission has been granted for an appeal directly to the Supreme Court, and the outcome of that appeal may have interesting implications for the status of European Court of Human Rights decisions in domestic law.

It is worth revisiting the decision in order to extract some of the principles, as although not novel, they do highlight the difficulties for claimants who have taken a case to the European Court of Human Rights and won, but who are still waiting for their decision to be implemented by the UK government.

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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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Many European human rights decisions left unimplemented for years

9 August 2010 by

The Strasbourg court

A new Government report on the implementation of European Court of Human Rights judgments has highlighted the vexed issue of the rightful place of such rulings in domestic law. Many decisions, for example on prisoner voting rights, have languished unimplemented for years and it remains to be seen whether the Coalition Government will do any more to fulfil its legal obligations to the thousands affected.

The report sets out the Government’s position on the implementation of human rights judgments from the domestic and European courts. It is a response to the Joint Committee on Human Rights‘ March 2010 report, in which the committee criticised “inexcusable” delays in implementation.

The United Kingdom is obliged to implement judgments of the European Court of Human Rights under Article 46 of the European Convention on Human Rights. In 2009, the UK was found to have violated the European Convention 14 times, which represents 1% of the overall total of violations found by the Court. However, the UK has a high proportion of leading cases outstanding for more than 5 years.

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Council of Europe raps UK on prisoner voting [updated]

9 June 2010 by

The Council of Europe has expressed “profound regret” that the UK has failed to implement its 5-year-old European Court of Human Rights ruling against the policy which prevents prisoners from voting in elections.

In a Committee of Ministers decision, the Council, which monitors compliance with European Court rulings, has:

expressed profound regret that despite the repeated calls of the Committee, the United Kingdom general election was held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place

It also appears to be giving the new Government a chance, expressing

confidence that the new United Kingdom government will adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court;

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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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More prisoners disenfranchised, this time in Austria

27 April 2010 by

Frodl v Austria (Application no. 20201/04) 8 April 2010 – Read judgment

The European Court of Human Rights has taken another opportunity to criticise a European state for not allowing a prisoner, in this case convicted of murder, to vote. Prisoners will not be voting in the upcoming UK General Election, which may yet lead to a slew of compensation claims against the Government.

We posted recently on the continuing refusal of the UK Government to comply with the 2005 judgment of Hirst v UK, where the European Court held that the ban on prisoners voting in the UK was a breach of Article 3 of Protocol 1 to the European Convention on Human Rights.

In Frodl v Austria the Court said that any restriction on voting rights must be proportionate to the end pursued, and

“must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.”

The Court went on to find a violation of the European Convention, for the reason that “it is inconceivable… that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction“.

The Court added that a prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“.

In the UK, the Government have shown little willingness to enfranchise prisoners and convicts. This may well be because it prefers the risk of thousands of compensation claims, as well as continuing criticism from Europe, to taking the politically unpopular decision of allowing convicted criminals  to vote.

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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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