Strasbourg


Vice-President of the Strasbourg Court Robert Spano’s response to Jonathan Sumption’s Reith Lectures

20 February 2020 by

Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.

So, here is Robert Spano in his own words.

  • At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.

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Is Strasbourg law the law of England and Wales?

30 March 2017 by


R (o.t.a Minton Morrill Solicitors) v. The Lord Chancellor [2017] EWHC 612 (Admin)  24 March 2017, Kerr J – read judgment 

This exam-style question arose, in an attempt by solicitors to be paid by the Legal Aid Agency for some work they had done on two applications to Strasbourg. The underlying cases were housing, the first an attempt to stave off possession proceedings, and the second the determination of whether an offer of “bricks and mortar” accommodation to an Irish traveller was one of “suitable accommodation”. Both applications were declared inadmissible by the European Court of Human Rights, and thus could not benefit from that Court’s own legal aid system.

The major question turned on whether the Human Rights Act had “incorporated” the Convention. We all use this as a shorthand, but is it really so?

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Does Art 5 entail a right to legal representation when facing prison for contempt of court?

30 March 2016 by

67

Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.

The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial).


by Fraser Simpson

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Dogfight continues: Strasbourg not happy with EU Court on accession to ECHR

30 January 2015 by

spielmannUnsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.

An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.

Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.

Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.

In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.

But Spielmann did not leave it at that, as we shall see.

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Why the Court is in Strasbourg – and other things

1 January 2015 by

strasbourgcathedral2Like lots of things to do with the ECHR, the idea seems to have been British. As Simpson put it in his magnificent history of the Convention, Human Rights and the End of Empire (OUP, 2001), Our Man (Jebb), in early 1949, appears to have suggested the site of the Council of Europe should be Strasbourg 

not for its architectural or gastronomic qualities, much less for its geese, but because of its symbolic significance for Franco-German reconciliation

Quite obvious, when you think about it. I was spurred into this by my winter festival reading, Neil MacGregor’s Germany.

Strasbourg commands a chapter, Floating City. Floating, because it swapped between Germany and France regularly, with increasing rapidity in the run up to the ECHR in 1950.  Formerly known as Strassburg, it had been emphatically part of the Holy Roman Empire, an Imperial city, a bishopric and German-speaking, until Louis XIV nicked it in 1681 – in war. The French were wise enough to administer it with a light touch – German remaining the predominant language – so it remained nominally French until 1871. Indeed, Goethe (and Metternich) studied there, and Goethe lauded the Gothic mediaeval cathedral (see pics) as reflecting supremely German architecture (Von Deutscher Baukunst) –  which of course it wasn’t, given that Gothic architecture derives from France.
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Why Somali pirates got damages from Strasbourg

9 December 2014 by

disaster2008_Ponant14Ali Samatar and others v. France, 4 December 2014, ECtHR, Fifth Section, read judgment 

There is a good deal of froth about this case in the media, with little of it looking at what our pirates got their damages for. I also suspect that some of the hostility comes from elements who may not wish to trouble themselves with a judgment only in French. So let’s have a quick look at what the case was actually about. 

The surrounding facts are terrifying but France’s liability to pay damages occurred for mundane reasons, as we shall see.

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Strasbourg’s €1.8bn award against Russia – and an arbitral award for $50 bn

7 August 2014 by

Oao  Neftyanay Kopaniya Yukos v Russia 31 July 2014 read this damages judgment and read violation judgment 

A good week, to say the least, for Mikhail Kordokovsky, recently released from a Russian jail. A complex story of punitive tax assessments on his former company, Yukos, has led to a judgement of €1.866 bn in Strasbourg against Russia.

I shall concentrate on the Strasbourg case, although for sheer numbers the story is perhaps elsewhere; on 28 July 2014 shareholders had obtained awards from the Permanent Court of Arbitration in The Hague ordering Russia to pay $51.57 bn to shareholders in Yukos Oil, saying officials had manipulated the legal system to bankrupt the company.

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“Europe needs the Convention and Europe needs the Court”

19 June 2014 by

PhaleTwo fascinating speeches to recommend.

Lord Phillips, former Supreme Court President, gave a thoughtful speech at Kings College on whether human rights are a “force for good or a threat to democracy”. He expressed quite significant concerns over some recent Strasbourg decisions on jurisdiction, prisoner votes etc. (you know the drill – see Rosalind’s post on the other senior judges/former judges speaking their minds).

The conclusion he reaches, on balance but also with “no hesitation”  is that “Europe needs the Convention and Europe needs the Court. … Strasbourg is a powerful force for good.

I really must do a chart of the senior judiciary and ex-judiciary’s positions on Strasbourg. They are falling over themselves to express a view.

Meanwhile, over at the Law Society of Ireland, Lady Hale gave a speech on Freedom of Religion and Belief, which readers will know is one of this blog’s pet topics (see our other posts on religion).

Disabled applicant not entitled under Article 8 to specific care needs

7 June 2014 by

1bf7130a-fcfMcDonald v United Kingdom [2014] ECHR 942 (20 May 2014) – read judgment

The Strasbourg Court has ruled that local authorities are within their margin of discretion to balance individuals’ personal interests against the more general interest of the competent public authority in carrying out their social responsibility of provision of care to the community at large.

Background

The applicant, who suffered from an incapacitating stroke in 1999, required assistance with all transfers and mobilisation. Disabled persons have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and under the 1990 National Health Services and Care Act  to require an assessment of needs from their local authority.
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Closed material in UK proceedings cannot be disclosed in Strasbourg

28 April 2014 by

blind justiceWang Yam v Attorney General [2014] EW Misc 10 (CCrimC) 27 February 2014 – read judgment

It is for the UK government to decide whether to vary an order preventing publication of material heard in private in a murder trial, if the offender goes on to petition the European Court of Human Rights. It is not for the Strasbourg Court to determine whether the right to a fair trial should outweigh the risks to UK national security reasons.

The question regarding a state’s obligation not to impede the right of individual petition to Strasbourg arose where the applicant offender applied for an order permitting him to refer to material, which had been restricted on national security grounds during his murder trial, in an application to the European Court of Human Rights.
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Hands off our courts’ relationship with the European Court of Human Rights – Paul Harvey

9 January 2014 by

OLYMPUS DIGITAL CAMERAThe glass foyer of the Palais de Droits de l’Homme in Strasbourg (pictured) is not to everyone’s taste.  Some find it inspiring, others – often advocates appearing for the first time – are simply too nervous to notice. Typically, Rumpole on his triumphant visit takes a much more down-to-earth approach, comparing the building to the boiler of a ship.

Whatever one makes of it, the foyer of the Court is designed to remind visitors of two things: the Court’s accessibility and its openness. That is not always apparent from the Court’s procedures or from the language it sometimes uses to express itself, but it is beyond question that the Court is open to the different legal traditions of its member States.  Most influential among those traditions must surely be the common law.

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Senior judges speak out on EU and rights law

17 December 2013 by

PrintFollowing David Hart’s highly popular review of  Alan Paterson’s book on the Supreme Court, here’s an account of the recent public speeches of Lord Sumption, Lord Justice Laws, and Lady Hale. I apologise in advance for the length of this post, but to do justice to all three lectures it has proved necessary to quote extensively from each. There are links to the full text of the lectures, if you want to digest them over Christmas. But whether or not that prospect appeals, here is a challenge for the festive season. Lord Sumption divides judges into three categories: the “parson”, the “pragmatic realist” and the”analyst”  (quoted by Professor Paterson in Final Judgment: The Last Law Lords and the Supreme Court). Which of these labels fit the respective speakers?
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Strasbourg: defaming the dead, football and historical revisionism

26 November 2013 by

article-2127854-0039756A00000258-300_634x381Putistin v. Ukraine, ECtHR, 21 November 2013  read judgment

An extraordinary story, with a twist, and an interesting decision by the Strasbourg Court that lack of respect for the honour and dignity of a dead relative may give rise to a breach of Article 8 and its right to family life.

In 1942 various professional footballers who had previously played for FC Dynamo Kyiv but who were now working in a bakery, ran out in the strip of FC Start. Their opponents (Flakelf) were pilots from the German Luftwaffe, air defence soldiers and airport technicians.

 

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Petition to Strasbourg stops the Spanish bulldozers

31 October 2013 by

article-2465761-18D0E7F500000578-802_634x473This week’s newspapers have highlighted the plight of the thousands of British homeowners who face demolition orders over their Spanish properties because they have been built without proper planning permission.  Permits granted by town mayors during the property boom turn out not to be worth the paper they were written on, and since the regional authorities have overturned most of these permits, the buildings are condemned to destruction. Compensation from the developers and public officials who made these transactions possible is not forthcoming; as the Times leader points out

In a few cases, the courts have ordered that developers or town halls should compensate those who have lost their homes. Yet the former invariably opt for bankruptcy, instead, and even the latter seem markedly reluctant to pay out. Owners, often now back in Britain, face daunting and bewildering battles in foreign courts. (Tuesday 29 October, behind paywall)

Now one couple, Terry and Christine Haycock, are testing how far the Strasbourg Court will go to protect their property rights in this fracas  (which would be under Article 1 Protocol 1).
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No obligation enforceable within the UK to oblige government to comply with Strasbourg

12 August 2013 by

Strasbourg_ECHR-300x297Navarathnam v Secretary of State for the Home Department [2013] EWHC 2383 (QB) – read judgment

There was no unfairness in the Secretary of State for the Home Department refusing a Sri Lankan asylum seeker leave to remain in the United Kingdom, despite the ruling from the Strasbourg court that to return him would violate his rights under Article 3 of the European Convention on Human Rights 1950.

A decision had been made to grant the applicant six months discretionary leave to remain but he had absconded before it could be implemented, and by the time he resurfaced the secretary of state had been entitled to review the case and determine that the circumstances in Sri Lanka had changed so that he was no longer at risk if returned.

Factual Background

The claimant was a Sri Lankan national who had been subject to removal action after his asylum claim was refused.  In 2008 the Strasbourg Court declared that the circumstances in Sri Lanka were such that his expulsion to Sri Lanka would violate the prohibition on torture and inhuman treatment under Article 3  (AA v United Kingdom).  The UK authorities consequently confirmed that removal directions would not be applied to him, and stated that he would be granted six months discretionary leave to remain (DLR).
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