Strasbourg


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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Radical but risky changes afoot at the European Court of Human Rights – Andrew Tickell

9 July 2013 by

Strasbourg_ECHR-300x297

Brought to you by Andrew Tickell

Radical changes are afoot in Strasbourg. Protocol No. 15, whose outlines were agreed at the Brighton Conference of 2012, is primed for ratification, while at the start of 2014, new Rules of Court will come into effect.  Both have the potential to have a wide-ranging impact on applicants.  Protocol 15 rewrites the Convention’s preamble, emphasising the Court’s “subsidiary” role in the protection of human rights.

It also modifies two of the admissibility criteria for petitions, pairing back the safeguard clauses initially erected around Protocol 14’s new criteria of “no significant disadvantage” and trimming the time available for applicants to lodge their cases from six months to four.


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More from Strasbourg on possession and Article 8 – Nearly Legal

24 September 2012 by

BUCKLAND v. THE UNITED KINGDOM – 40060/08 – HEJUD [2012] ECHR 1710 – read judgment

The ECtHR’s recent decision in Buckland v UK demonstrates again how wonderfully delphic the subject of housing and Article 8 rights to private and family life has become.

In one sense, the outcome was fairly predictable because the case was determined by the UK Courts before the Supreme Court in Manchester CC v Pinnock established the principles of proportionality in possession claims.

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The UK and Strasbourg: a victim fantasy

19 September 2012 by

Brought to you by Andrew Tickell

Rhubarb, rhubarb. Another defeat for the United Kingdom in Strasbourg yesterday. In James, Wells and Lee v. the United Kingdom, a chamber of the Court’s Fourth Section held that indeterminate sentences of imprisonment for public protection infringed Article 5 of the Convention.  At his first Justice Questions in the House of Commons yesterday, our fresh-minted Conservative Lord Chancellor and Justice Secretary, Chris Grayling, advised MPs that:

“I’m very disappointed with the ECHR decision this morning.  I have to say, it is not an area where I welcome the Court, seeking to make rulings.  It is something we intend to appeal.”

One wonders which areas Mr Grayling would welcome the Court’s jurisdiction, but all in all, a somewhat tepid response from a man whose appointment was greeted by the Daily Mail with the enthusiastic suggestion that Grayling…

“… unlike his predecessor Ken Clarke, will have no truck with the cardboard judges at the European Court of Human Rights.”

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Are Christians really marginalised in this country?

7 September 2012 by

We will have to wait some time before Strasbourg hands down its judgment in the religious discrimination cases it heard earlier this week.

Whatever the outcome – which is perhaps predictable – the Court’s ruling will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention.

The Equality and Human Rights Commission argues in its intervention submission that Strasbourg – and the UK courts – should move on from their “restrictive” interpretation of Article 9, summed up by Lord Bingham’s oft-cited description of the Court’s position in R (SB) v Governors of Denbigh High School [2006] UKHL 15

The Strasbourg institutions have not been at all ready to find an interference with the right to manifest a religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.[para 23]

(This is a revised intervention after the EHRC responded to widespread criticism of its proposed argument in support of “reasonable accommodation” of employees’ beliefs – see Alasdair Henderson’s post on this dust-up “Leap of Faith” and our following post on the reversal of the EHRC’s position.)
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UK vs. Strasbourg: don’t believe the hype – Alice Donald

20 April 2012 by

The Abu Qatada deadline debacle has once again thrust the European Court of Human Rights – and in particular, its relationship with the UK – into unwanted controversy just as European representatives gathered in Brighton to debate the Court’s future. This new fracas over the deportation of Abu Qatada has acted as a lightning rod for well-rehearsed criticisms of the Strasbourg Court – that it is a ‘meddling pseudo-judiciary’ and the enforcer of a villains’ charter.

A new report for the Equality and Human Rights Commission by researchers at London Metropolitan University and LSE, including myself, addresses these critiques as part of a broad analysis of the relationship between the UK and Strasbourg.

Among those interviewed for the report were the President of the European Court, Sir Nicolas Bratza; the outgoing Council of Europe Commissioner for Human Rights, Thomas Hammarberg; and, in the UK, Baroness Hale, Sir John Laws and Jack Straw, along with two members of the Commission on a Bill of Rights, Lord Lester QC and Anthony Speaight QC. The report also conducts a thematic analysis of case law, as well as examining wider literature and the voluminous statistics produced by the Court.

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Strasbourg rules on anti-gay speech for the first time

13 March 2012 by

Vejdeland and Others v Sweden (Application no. 1813/07) – Read judgment

 “Will both teacher and pupils simply become the next victims of the tyranny of tolerance, heretics, whose dissent from state-imposed orthodoxy must be crushed at all costs?”, asked Cardinal O’Brien in his controversial Telegraph article on gay-marriage. He was suggesting that changing the law to allow gay marriage would affect education as it would preclude a teacher from telling pupils that marriage can only mean a heterosexual union. He later insinuated that the change might lead to students being given material such as an “explicit manual of homosexual advocacy entitled The Little Black Book: Queer in the 21st Century.”

A few weeks before that article was published, the European Court of Human Rights handed down its first ever ruling on anti-gay speech, in a Swedish case where a group of young men, seemingly motivated by a similar abhorrence to that expressed by Cardinal O’Brien for the “tyranny of tolerance” in education, put a hundred or so leaflets in or on the students’ lockers at a secondary school. The leaflets read:

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Strasbourg in the primordial soup

15 February 2012 by

There are those who think that the Strasbourg Court sometimes talks through its fundament. Others are of the view that the sun shines out of it.

This may of course have something to do with the Court’s jurisdictional basis, whose proper name is the Convention for the Protection of Human Rights and Fundamental Freedoms. Be that as it may, over the years the Court has become increasingly inclined to describe so many rules, principles, aspects of people’s relationships with each other and sundry other understandings and agreements of civil society as “fundamental” that the word has ceased to resonate with its original meaning as basic, essential, primary, central, or even  foundational.

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Cameron hits Strasbourg – The Human Rights Roundup

29 January 2012 by

Updated | Welcome back to the human rights roundup, your regular human rights bullet. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Wessen Jazrawi

In the news

Mr Cameron goes to Strasbourg

This week, the European Court of Human Rights released its 2011 annual report and Prime Minister David Cameron paid Strasbourg a visit, where (amongst other things) he accused the Court of having become a “small claims court”.

Unsurprisingly, this has been heavily commented on in the press. Adam Wagner posted on the build-up, Professor Francesca Klug minced no words in the follow-up and Joshua Rozenberg  reported on the ensuing discussion between Cameron and the secretary-general of the Council of Europe – see also Deciding the future of human rights court … in Brighton. Also worth reading is The Small Places heartfelt and insightful defence of human rights, Obiter J’s excellent post and Beyond Abu Qatada: Why The UK Shouldn’t Split From the European Court of Human Rights in the Huffington Post (UK edition).


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Is the European Court of Human Rights obsessively interventionist?

22 January 2012 by

Brought to you by Andrew Tickell

Marie-Bénédicte Dembour calls them ‘forgotten cases’.  As Adam Wagner demonstrated in a blog post of last week, Eurosceptic newspapers have a particular interest in overlooking the European Court of Human Right’s decisions of inadmissibility, seeking to buttress claims that the Court is wildly interventionist, imposing alien “European” logics on Britain with gleeful abandon. 

Both the Telegraph and Daily Mail covered the findings of a report commissioned by backbench Tory MPs critical of the Court’s jurisdiction, both simply replicating its astonishingly misleading content.  The papers contended that the UK was defeated in three in four cases brought against it, with violations of the Convention being found in 75% of human right petitions to Strasbourg.

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Strasbourg: L’enfant terrible

18 January 2012 by

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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Strasbourg is not the Vatican…yet.

6 December 2011 by

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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