http://www.uclshrp.com/bulletin/cases News items connected with the bulletin Copyright 2010 2010-01-25T21:24:41+00:00 http://www.uclshrp.com/bulletin/cases/gillan_and_quinton_v_united_kingdom/ http://www.uclshrp.com/bulletin/cases/gillan_and_quinton_v_united_kingdom/ Facts: Mr Gillan and Ms Quinton lodged an appeal against the UK government claiming that the stop and search powers used against them where in violation of Articles 5 (right to liberty), 8 (right to a private and family life), 10 (right to freedom of expression) and 11 (freedom of assembly and of association) of the European Convention on Human Rights.  While on their way to a demonstration close to an arms fair, the claimants were both stopped and searched for over 20 minutes according to Articles 44 and 45 of the 2000 Terrorism Act. They applied for judicial review in the High Court, claiming that the use of stop and search powers during a demonstration such as the arms fair, were contrary to the legislative purpose of the Statute and that the use of these powers constituted a disproportionate interference with their rights protected under Articles 5, 8, 10 and 11. The case went up to the House of Lords, which rejected the appeal on the ground that the statute was drafted so as to allow the use of such powers when considered expedient ‘for the prevention of acts of terrorism’.  Lord Bingham held that a search did not constitute an infringement of the right to a private and family life. He further held that the statute was lawful. Lord Hope also added that the scope for intrusion allowed by the search powers was narrow, thus legitimate for the purpose of protecting the public from terrorism. Article 5: The Court held that even though the stop did not last for more than 30 minutes, the applicants had been completely deprived of their right to liberty under Article 5 during that time, since non -compliance with the stop and search order would have lead to criminal proceedings. There was however no need for the Court to express a final judgment on that point, as the decision was to depend on whether there was an infringement of Article 8 of the Convention. Article 8: The claimants submitted that the stop and search powers used by the police on them were qualitatively different from similar powers used in airports, since no prior notice nor agreement was given and since the search was conducted in a public place. As a result, they argued, there was an infringement of their right to autonomy and privacy under Article 8. The Court held that the stop and search powers allowing vigorous search in a public place constituted an infringement of Article 8. Did the infringement comply with national law in accordance with paragraph 2 of Article 8 of the Convention? Relying on its previous case law, the Court held that despite the existence of certain restraints to the power conferred onto the police by the 2000 Act, these restraints were too limited. This lead to a clear risk of arbitrariness, as police officers had a very broad discretion in the exercise of their powers.  The Court concluded that the powers of authorisation and confirmation, as well as those of stop and search under sections 44 and 45 of the 2000 Act, were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. It held, therefore, that they were not “in accordance with the law” and that there had been a violation of Article 8 of the Convention. 2010-01-25T20:24:41+00:00 http://www.uclshrp.com/bulletin/cases/ahmet_oztekin_and_celal_aygen_and_others_v_turkey/ http://www.uclshrp.com/bulletin/cases/ahmet_oztekin_and_celal_aygen_and_others_v_turkey/ 13 January 2009 In this case Mr Ahmet Öztekin (1st applicant) and Mr Celal Aygen (2nd applicant) claimed that their detention in police custody for a period of seven days was a violation of their right under Article 5 § 3 of the European Convention of Human Rights (ECHR). Article 5 covers the right to be heard before a judge or officer authorized by law to exercise judicial power in a prompt manner.  The applicants were taken into custody for allegedly participating as members of the Kurdistan Islamic Revolution Movement, an illegal organisation in Turkey. In order to avoid a trial, the government of Turkey made a declaration offering a settlement totaling two thousand Euros to each applicant, for non-pecuniary damages and expenses. The applicants accepted this friendly settlement, thus waiving their claim against the Turkish government. The European Court of Human Rights found that there were no policy reasons to continue examining the application and therefore struck it from its list of cases. Whilst friendly settlements might reduce the case load of the Strasbourg Court and allow for more serious cases to be heard, the concept of states paying off their abuses of human rights leaves a sour taste, particularly since this rationale necessitates ranking one human right over another. 2009-12-24T06:24:01+00:00 http://www.uclshrp.com/bulletin/cases/grainger_plc_v_nicholson/ http://www.uclshrp.com/bulletin/cases/grainger_plc_v_nicholson/ Tim Nicholson brought an action against his former employer, the large property company Grainger Plc, claiming that his redundancy last year was due to discrimination against him over what he asserts is a philosophical belief about climate change and the environment. The question was whether a belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a ‘philosophical belief’ for the purpose of the 2003 Religion and Belief Regulations. The Regulations set out in paragraph 2(1) that: i. “religion” means any religion. ii. “belief” means any philosophical belief. iii. a reference to religion includes a reference to lack of religion, and iv. a reference to belief includes a reference to lack of belief. As Lord Nicholls said in R. (on the application of Williamson) v Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246 it is not for the judge to decide whether the belief is “valid” by some objective standard, only that it is made in good faith. However the belief asserted here was not one of religion but a philosophical one, so a cross examination was needed and it was not done correctly by the first judge in the regional court. Three main questions were set out by the judge: 1. How far, if at all, does the ‘belief’ have to be similar to a ‘religious belief’ in order to qualify for protection under the Regulations? 2. What limits of any should be placed on the words ‘philosophical belief’? 3. Are the authorities in relation to the ECHR relevant or even persuasive in this field? Mr. Justice Burton relied on ECHR jurisprudence, in particular Campbell and Cosans v United Kingdom [1982] 4 ECHR 293 and previous cases decided by the EAT, including McClintock v Department of Constitutional Affairs [2008] IRLR 29 in which Elias P suggested that the test for determining whether a belief is philosophical or not is to determine whether this belief has sufficient cogency, seriousness, cohesion and importance and whether it is worthy of a democratic society.  He concluded that Nicholson’s belief fell within the ambit of the 2003 Regulations, meaning that he will now be able to take action against Grainger Plc. Grainger Plc v Nicholson raises a new area for concerns for employers: environmental convictions will now have the same protection as religious beliefs under employment law.  2009-12-23T20:57:35+00:00 http://www.uclshrp.com/bulletin/cases/zaunegger_v_germany/ http://www.uclshrp.com/bulletin/cases/zaunegger_v_germany/ Facts: The applicant Horst Zaunegger, a German national, has a daughter born out of wedlock (1995), who grew up with both parents until their separation in August 1998. From that time until January 2001 the daughter lived with the applicant. After the child had moved to live with her mother, the parents reached an agreement with the help of the Youth Welfare Office, according to which the applicant would be in contact with his child on a regular basis. Pursuant to Article 1626a § 2 of the German Civil Code, the mother held sole custody of the child. As she was not willing to agree on a joint custody declaration, the applicant applied for a joint custody order. The Cologne District Court dismissed the application, holding that under German law joint custody for parents of children born out of wedlock could only be obtained through a joint declaration, marriage or a court order which requires the consent of the other parent. In 2003, the Cologne Court of Appeal upheld the decision by the District Court. Both courts relied on a judgment of the Federal Constitutional Court of 29 January 2003, which had found that the relevant provision of the Civil Code was constitutional with regard to the situation of parents of children born out of wedlock who had separated after 1 July 1998 (on this date an amended Law on Family Matters entered into force). On 15 December 2003 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint. Claim: The applicant complained under Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for family life) that the German Federal Court’s application of Article 1626a § 2 of the German Civil Code amounted to an unjustified discrimination against unmarried fathers on sexual grounds and in comparison with divorced fathers. Held: The Court noted that by dismissing the applicant’s request for joint custody without examining whether it would be in the child’s interest, the German courts had treated Zaunegger differently in comparison with the mother and in comparison with married fathers. In order to assess whether this treatment was discriminatory for the purposes of Article 14, the Court first considered whether the German legal provisions pursued a legitimate aim. It found that they did, because the provisions were aimed at protecting the welfare of a child born out of wedlock by determining its legal representative. This should avoid disputes between parents over custody issues. The court considered further that there could be valid reasons to deny the father of a child born out of wedlock participation in parental authority if there was no communication between the parents. However, these considerations did not apply in the instant case, because Zaunegger continued to take care of the child on a regular basis. The Court did not share the Federal Constitutional Court’s assessment that joint custody against the mother’s will could be assumed to be contrary to the child’s interest. While it was true that legal proceedings concerning custody matters could unsettle a child, German law provided for judicial review of the attribution of parental authority in cases where the parents were or had been married or had opted for joint parental authority. The Court did not see sufficient reasons why the situation of the instant case, where there was no marriage, should be exempt from judicial scrutiny. Accordingly, there was no proportional relationship between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock. The Court therefore held by 6 votes to 1 that there had been a violation of Article 14 taken together with Article 8. The Court further held unanimously that the finding of a violation constituted sufficient satisfaction for any non-pecuniary damage suffered by the applicant.  2009-12-21T19:53:11+00:00 http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_chester_v_secretary_of_state_for_justice/ http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_chester_v_secretary_of_state_for_justice/ Facts: The claimant prisoner applied for judicial review of a decision refusing to allow him to vote for UK elections.  He had been sentenced to life imprisonment in 1978 for the rape and murder of his niece, but had become eligible for release after the expiry of the minimum term. However, he was found by the Parole Board too dangerous to be released into the community. He thus remained in custody as a ‘post-tariff lifer’.  In 2005 the ECtHR in Hirst v UK (No.2) (Application no. 74025/01) held that a blanket ban on the right of prisoners to vote, as codified in s.3 of the Representation of the People Act 1983, violated Protocol 1 article 3 of the European Convention of Human Rights, the right to free elections. Following that decision, the claimant sought to register in order to vote in the elections of the European Parliament. Section 8 of the European Parliamentary Elections Act 2002 entitles citizens to vote in European elections. This section is a corollary of s.3 of the 1983 Act in the sense that it establishes that the same people who can vote in UK elections are also admitted to vote in European elections. In September 2009, the UK government carried out a Consultation Paper entitled ‘Voting Rights of Convicted Prisoners detained within the UK’ and subsequently set up a timetable for the introduction of legislation amending s.3 of the 1983 Act. However, the proposals contained in the consultation papers reveal that the government firmly opposes the enfranchisement of prisoners sentenced to four years imprisonment or more and also thinks it undesirable to enfranchise all post-tariff prisoners like the claimant. Claim: The claimant put forward a three-fold argument: Firstly, he claimed that s.8 of the European Parliamentary Elections Act 2002 should be read down in keeping with s.3 of the Human Rights Act 1998 and/or re-interpreted so as to conform with EC law by virtue of the Marleasing principle (Marleasing SA v La Comercial Internacional de Alimentacion SA, C-106/89 [1991] 1 ECR 4135). Secondly, he suggested that the court should declare s.3 of the 1983 Act, which prevented him from voting in parliamentary and local government elections, and alternatively s.8 of the 2002 Act, which prevented him from voting in European elections, incompatible with his rights as a post-tariff lifer. Thirdly, he alleged that any recently proposed legislation by the UK government would not comply with the Convention unless it provided for enfranchisement of a post-tariff lifer. Holding: 1. Reading down Burton J held that neither the interpretative methodology of ‘reading down’ under s.3(1) HRA 1998 nor the interpretative obligation of a national court under the EC principle of Marleasing are available in the instant case. Since the statutory provision of the 2002 Act sets out that the rules for European elections are the same as those for UK national elections, the same principles concerning the application of s.3(1) HRA 1998 must be followed for both statutory provisions. If s.3 of the 1983 Act cannot be read down, the same must be said for s.8 of the 2002 Act. Furthermore, if the court read down the sections in this case, it would effectively take on a legislative function. According to Burton J this is particularly inappropriate if it is considered that Parliament is in the process of changing the challenged provisions at the very moment. 2. Declarations of Incompatibility The court set out that the claimant had brought the proceedings primarily in order to secure his right to vote for the future. However, since the government is taking steps to bring in fresh legislation, a scheme will be in place to deal with the claimant’s situation soon. Furthermore, a declaration of incompatibility had already been made in a UK court in relation to s.3 of the 1983 Act (Smith v Scott [2007] C.S.I.H. 9) upon which s.8 of the 2002 Act entirely depended. Accordingly, the court held that a new declaration of compatibility would be duplicative and was therefore not needed.  3. Proposed Legislation The court noted that the shape and content of the proposed legislation was yet wholly undecided. Burton J stressed the importance of the principle laid down in Wheeler, that the freedom of speech in Parliament and the separation of powers between the judiciary on the one hand and the executive and legislature on the other must be respected, especially with regard to matters of sensitive social policy as in the instant case. Nonetheless, the court reiterated that any legislative proposal for electoral reform would need to comply with the decision of the ECtHR concerning the blanket ban. In responding to Hirst v UK, the UK has a ‘margin of appreciation’ and is therefore not obliged to take a specific route prescribed by the court.  Thus, the blanket ban in s.3 of the 1983 Act, which was declared to be in breach with Protocol 1, Art.3 of the ECHR in 2005 is still applicable until the legislative vacuum is filled. Burton J refused permission to appeal.  2009-11-30T08:01:10+00:00 http://www.uclshrp.com/bulletin/cases/lombardi_vallauri_v_italy/ http://www.uclshrp.com/bulletin/cases/lombardi_vallauri_v_italy/ The applicant, Mr Luigi Lombardi Vallauri (hereafter Mr LV), is at present a professor of legal philosophy at the University of Florence. In 1976, he began teaching legal philosophy at the Faculty of Law of the Università Cattolica del Sacro Cuore (Catholic University of the Sacred Heart) in Milan through contracts renewed on an annual basis. Mr LV entered a competition, for the post he was at the time holding, in the 1998/99 academic year. However, the Congregation informed the University by letter that some of the applicant’s views were “in clear opposition to Catholic doctrine” and that “in the interests of truth and of the well being of students and the University” the applicant should no longer teach there. On 4 November 1998 the Faculty of Law Board decided not to examine the applicant’s application, since the approval of the Congregation for Catholic Education was a condition for admission to the competition. One of the applicant’s colleagues proposed that reasons be given for the measure taken but the proposal was rejected by a majority vote. Mr LV applied to the Lombardy Regional Administrative Court to have the decisions of the Faculty Board and the ecclesiastical authority set aside, arguing that both were unconstitutional because they breached his right to equality, freedom of instruction and freedom of religion. On 26 October 2001 the Court rejected the application on the grounds, inter alia, that adequate reasons had been given for the Faculty Board’s refusal to consider the applicant’s candidacy, and that the revised Concordat between the Holy See and the Italian Republic did not lay down any requirement to state the religious grounds for refusing approval. The court further held that neither the Faculty Board nor the court itself had jurisdiction to examine the legitimacy of the Holy See’s decision, which had emanated from a foreign State. The court also pointed out that teaching staff were free to choose whether or not to adhere to the principles of the Catholic faith. The applicant appealed to the Consiglio di Stato reiterating the lack of reasons given for the Faculty Board’s decision and contesting the lack of jurisdiction of the administrative court. Consiglio di Stato dismissed the appeal following a 1972 decision and observing that “no authority in the Republic may rule on the findings of the ecclesiastical authority”. Violation of article 10 Mr LV pleaded that the University’s decision violated his article 10 right to freedom of expression. The Court decided that the question was admissible, contrary to what the Italian government had said. Second it added that, given that his temporary employment contracts had been constantly renewed for over 20 years and given his academic qualities, Mr LV’s professional situation was to be considered stable. Thus the failure to consider his application constituted an interference with his right to freedom of expression. The Court noted that the interference was in accordance with Italian law and could have the legitimate aim of protecting the “rights of others” in receiving a Catholic education. The Court went on to consider whether the interference was necessary in a democratic society. It considered that, in omitting to explain how the applicant’s views purportedly in opposition with the Catholic doctrine could affect the University’s interests, the Faculty Board had not given adequate reasons for its decision. Moreover, although it was not for the domestic authorities to examine the substance of the Congregation’s doctrinal stance, the administrative courts, in the interests of the principle of adversarial debate, should have addressed the lack of reasons for the Faculty Board’s decision given that such lack prevented Mr LV from exercising his right to reply. In conclusion, the Court considered that the University’s interest in dispensing teaching based on Catholic doctrine could not extend to impairing the very substance of the procedural guarantees afforded to the applicant by Article 10 of the Convention. Accordingly, the interference had not been “necessary in a democratic society”. The Court therefore held, by six votes to one, that there had been a violation of Article 10 of the Convention in its procedural aspect. The Court held that the applicant had not had effective access to a court for the same reasons, and found a violation of Article 6 § 1 by six votes to one. The Court considered that there was no need to examine separately the applicant’s complaints under Articles 9, 13 and 14. Judge Cabral Barreto dissented. According to him a renewable annual contract could not constitute the basis of a stable employment situation, despite having been renewed for twenty years, and consequently Mr LV was in the same position as all the other candidates in respect of the post. Moreover, in his opinion a change in the professor’s views could legitimately lead to the exclusion of his application. He also argued that the only way to justify the Congregation’s decision without overlapping on the zone of discretion of the Catholic Church was to say that Mr LV’s writings contradicted a dogma of the Catholic faith, which is the justification which was given by the Faculty Board. Accordingly, the interference with Mr LV’s procedural rights under articles 10 and 6(1) of the convention had, for him, not been breached.  2009-11-14T15:54:42+00:00 http://www.uclshrp.com/bulletin/cases/chrapkova_v_slovakia/ http://www.uclshrp.com/bulletin/cases/chrapkova_v_slovakia/ This case concerns an application made by a Slovak National, Ms Vlasta Chrapkova, against the Slovak Republic on the grounds that the Constitutional Court had unnecessarily delayed the claimant’s application for compensation – under the Land Ownership Act 1991 – following the transfer of agricultural property and livestock to a co-operative in 1951. Ms Vlasta Chrapkova made the compensation application on December 31, 1992 but in the following twelve years no hearings were ever held with a view to taking evidence and establishing the facts relevant for the determination of her action.  Consequently on December 30, 2005 the Constitutional Court found that the District Court had violated the applicant’s right to a hearing without unjustified delay. The Constitutional Court awarded SKK 100,000 (the equivalent of EUR 2,574 at that time) to the applicant as compensation for non-pecuniary damage. It ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant’s costs. The applicant then brought the present action in the ECHR, claiming that the duration of the proceedings viewed by the Constitutional Court were not within the ‘reasonable time’ limit, found under Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” She also claimed that the amount of just satisfaction granted by the Constitutional Court was disproportionately low in the circumstances of the case. The Government, in its defence, submitted that the extended examination procedure was due to the immense factual and legal complexity of the case. In addition, it was their claim that the amount of just satisfaction which the applicant had been awarded was relatively high, thus offering a justification for their delayed actions. The ECHR disagreed on both counts. It held that the length of the proceedings up to the Constitutional Court’s finding was excessive and failed to meet the “reasonable time” requirement, thus there was a breach of Article 6 § 1. It also found that in view of established case-law the amount awarded by the Constitutional Court was insufficient redress. It thus applied Article 41 of the Convention and awarded a further EUR 2,380 in respect of non-pecuniary damage.  Article 41 reads as follows: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 2009-11-12T21:59:30+00:00 http://www.uclshrp.com/bulletin/cases/adzigovich_v_russia/ http://www.uclshrp.com/bulletin/cases/adzigovich_v_russia/ In 2004 Ms Adzhicovich, a Russian citizen, sought to travel from Moscow to Ukraine. She had on her the amount of 13,020 US dollars, 31 Ukrainian hryvnyas (UAH) and 1,100 Russian roubles (RUB). At the customs check-out she reported the sum of 10,000 US dollars and 31 UAH to the airport officials. When they found the remaining 3,020 US dollars, Ms Adzicovich was charged with smuggling, a criminal offence under the Russian Criminal Code Art 188 §1. The money was appended as physical evidence of the offence.  Subsequently Ms Adzhicovich was convicted by the Moscow District Court under the stated article. The money held as physical evidence was decided to revert back to the state. All the appeal Courts upheld this decision.  Counsel for the applicant filed several supervisory review applications arguing that the confiscation of the money by the state was unlawful, since the applicant’s criminal intention was directed at a breach of the procedural requirements for money transfer, not at the illegal acquisition of the money. Therefore the cash money did not represent the object of the offence, and is thus not liable to confiscation under Article 81 §3 1 of the Code of Criminal Procedure.  The Moscow City Court division in its supervisory review ascended to this view, amending the judgement as to the confiscation of the money by the State.  A writ of execution was issued and sent to the bailiffs service for execution. However, as was later discovered, the confiscated cash money had been taken away, making enforcement impossible.  In her application to the ECtHR Ms Adzhicovich argued under Article 1 of Protocol No. 1 that the legal domestic law basis for the confiscation measure was not sufficiently clear.  As to this application the government argued that the applicant’s property rights under Article 1 of Protocol No.1 had been restricted by the criminal offence committed by the applicant. The confiscation was further in accordance with Article 81 §3 of the Code of Criminal Procedure and existing judicial practice regarding the money as an instrument of the offence.  The applicant contented this view stating that the Government consistently failed to specify the application of the paragraph of Article 81 §3 and the reference to the confiscated money as the “instrument” of the criminal offence. Therefore the application of the law was inconsistent and could not have constituted lawful judicial practice.  In its judgement the Court firstly established the common approach that a confiscation measure, although depriving the applicant of the right to peaceful enjoyment of her possessions, generally constitutes a lawful control of the use of property by the State as referred to by the second paragraph of Article 1 Protocol No.1 (see, in respect of a similar measure, Sun v. Russia, no. 31004/02, § 25, 5 February 2009).  In establishing whether in this case the state’s interference with the applicant’s peaceful enjoyment of property rights was lawful according the second part of Article 1 of the Protocol, the Court held that during the state trials there had been no reference made to a legal basis rectifying the confiscation measure. The Russian courts merely referred to Art 188 of the Criminal Code in general. The Presidium’s decision during the supervisory review for the restitution of 10,000 US dollars did not include any reference to why only 10, 000 US dollars out of 13, 020 US dollars were to be restituted. It therefore remains unclear what legal provision could be applied to the maintenance of the confiscation order in respect of the remaining amount. In fact, as regards that amount, the Presidium’s decision did nothing to remedy the lacunae in the legal reasoning of the first-instance, appeal and supervisory-review courts. The protection of the applicants fundamental right of peaceful enjoyment of her property requires any interference to satisfy the requirement of lawfulness, foreseeability and un- sarbitraryness (among other authorities, Baklanov v. Russia, no. 68443/01, § 39, 9 June 2005, and Frizen v. Russia, no. 58254/00, § 33, 24 March 2005). As a result of the constant failure of the Russian authorities to indicate a legal basis for the confiscation of the applicant’s property and the refusal to return the money confiscated, the Court found that the interference with the applicant’s property rights cannot be considered lawful.  The Court held that there had therefore been a violation of Article 1 Protocol No. 1 and accepted the claim in respect of the pecuniary damage in its entirety, awarding the applicant EUR 10,240 as well as EUR 1,000 in non-pecuniary damage.  2009-10-29T22:01:50+00:00 http://www.uclshrp.com/bulletin/cases/kimlya_and_others_v_russia/ http://www.uclshrp.com/bulletin/cases/kimlya_and_others_v_russia/ On the first of October this month the ECHR held unanimously that Russia has violated Article 9 (read in the light of Article 11) of the European Convention on Human Rights and ordered the state to pay damages to the claimants (Mr Yevgeniy Nikolayevich Kimlya and Mr Aidar Rustemovich Sultanov), members of a Church of Scientology in Nizhnekamsk and Surgut City, Russia. The first applicant registered the Church as a non- religious organisation in 1994. After the passing of a new law in 1995 the organisation was required to re-register but in 1999 their application was refused on the ground that the Church (known as “Surgut Humanitarian Dianetics Centre” at the time) was religious in nature. On the 1st of October 1997 the “Religious Act” (or the Federal law on freedom of conscience and religious associations) came into force, this meant that religious groups had to register and had to show legal documents proving that they had been in place for 15 years. When the first and second applicants (respectively the Churches of the City of Surgut and of Nizhnekamsk) applied for registration they were refused for failing to show legal documents proving that they had been in place for at least 15 years. In previous case law the ECHR has already debated on this question in the case of the Church of Scientology Moscow v. Russia (2007) where the court stated that Scientology was a religious organisation and under Articles 9 and 11 the applicants were allowed to exercise their rights of freedom of religion without state interference. In previous Russian case law the Constitutional court has allowed the appeals of other religious organisations such as Jehova’s Witnesses. There is much debate in Europe whether Scientology should have a status of religious organisation or not. In Belgium, France, Germany and the United Kingdom Scientology is a non religious organisation but through court action it has gained a religious status in countries such as Spain and Portugal. The ECHR judges stated that it was not their role to decide whether or not Scientology is a religion – the Court considered that it had to rely on the position of the domestic authorities in determining the applicability of Article 9. As the Russian authorities had been convinced of the religious nature of Surgut and Nizhnekamsk Churches of Scientology, the Court considered that Article 9 was applicable in the case. Moreover, given that religious communities exist in the form of organised structures and that the complaint concerned the alleged restriction on the right to associate freely with fellow believers, Article 9 also had to be examined in the light of Article 11 which safeguarded associative life against unjustified State interference. The Court found that the lack of legal personality and the restricted scope of rights of religious groups under the Russian Religions Act did not allow their members to effectively enjoy their right to freedom of religion and association. There had therefore been an interference with the applicants’ rights under Article 9 interpreted in the light of Article 11. That interference had been prescribed by law, namely the Religions Act, and pursued the legitimate aim of protecting public order. However, the ground for refusing registration had been purely formal and unconnected with their actual functioning. Moreover, the contested provision of the Religions Act had targeted base-level religious communities that could not prove either their presence in a given Russian region or their affiliation with a centralised religious organisation. This meant that only those newly emerging religious groups, such as Scientology groups, that did not form part of a strictly hierarchical church structure had been affected by the “15-year rule”. The Government had not given any justification for this differential treatment. Thus, the Court concluded that the interference with the applicants’ rights to freedom of religion and association had not been “necessary in a democratic society” and held unanimously that there had been a violation of Article 9 of the Convention, interpreted in the light of Article 11. As mentioned above, previous case law shows that the Russian Constitutional Court has in the past recognised other similar groups (Jehova’s Witnesses) as religious organisations. The judgement is fully available on the ECHR website 2009-10-28T23:45:46+00:00 http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_l_v_secretary_of_state_for_justice/ http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_l_v_secretary_of_state_for_justice/ The Claimant attempted to commit suicide whilst in a Young Offenders Institute. The claimant brought an application for judicial review on the basis that the State had breached its obligations under Article 2 ECHR. Under Article 2 ECHR there is a procedural obligation for the State in cases where there is death or attempted suicide to conduct an investigation which must remain independent and open. So as to meet the requirements of Article 2, the Secretary of State ordered a public investigation, which involved a first-stage investigation and a second-stage public inquiry. Stage 1 was to be conducted by a charted forensic psychologist (M), who had experience of prisons but had not worked at the young offender institution in question. M’s request by a letter for a meeting with L was refused, and there was no response to her further letters. M completed her investigation and reported her findings in draft. Stage 2 of the enquiry had yet to take place. The claimant asserted that the enquiry did not match the demands of Article 2, on three main grounds.  First, the claimant posited that stage 1 of the investigation was not independent of the State. The court rejected this claim. The forensic psychologist had no hierarchical or institutional connection with any individual potentially implicated in the circumstances of L’s attempted suicide or with the institution in question and a fair-minded informed observer would not perceive any conscious or unconscious bias. Secondly, the claimant put forward that Article 2 ECHR requires the claimant to be afforded the opportunity to participate in the investigation and the claimant’s legitimate expectation to participate in the investigation was not fulfilled. The court rejected this claim. Although it would have been better for M to have taken more steps to involve L, it was evident that L chose not to engage with the enquiry process. Had he been co-operative with M as to the enquiry’s procedures and mechanics, there was no reason why the process should not have been advanced with Article 2 being satisfied, hence L bore some responsibility. Moreover, M’s report remained a draft. L could put his points before her, which would certainly be responded to on a considered basis. As the second stage of the enquiry was still to take place L could still put or repeat matters of concern there. It followed that L enjoyed and continued to enjoy sufficient assurances of participation. Thirdly, the claimant asserted that the investigation had not been conducted promptly. The court considered that although a great deal of time had passed, which was inimical to an Article 2 investigation, the investigation was not complete yet so no proof of damage was established. Thus no relief could be ordered on this basis for the present.  Hence the application for judicial review on account of a breach of Article 2 obligations was refused.  2009-10-28T23:45:14+00:00 http://www.uclshrp.com/bulletin/cases/bordikov_v_russia_no921_03/ http://www.uclshrp.com/bulletin/cases/bordikov_v_russia_no921_03/ The applicant, Viktor Bordikov, was accused of unlawful possession of ammunition and drugs. Referring to the seriousness of the charges, the danger of the applicant’s absconding and his potential interference with the administration of justice by putting pressure on witnesses, the applicant was detained pending trial for four separate periods during the length of the criminal proceedings. The applicant alleged that there had been a breach of Art.3 on account of inhuman and degrading conditions in the remand prison and on account of a lack of adequate medical treatment. He further alleged that there had been a violation of Art.5§3 as his pre-trial detention had been unreasonably long. He alleged also that the length of the criminal proceedings had been excessive which constituted a violation of his rights set out in Art.6.  Article 3: The cells in the remand prison, as described by the applicant and a witness, were inter alia infested with cockroaches, overcrowded and insufficiently furnished with beds, so that inmates had to take turns to sleep. Allegedly, the cells were never sanitised and the walls contained poisonous material. The Government disagreed as to most of these aspects of the conditions except for the allegation that the cells were overpopulated. However, the Government disagreed with the applicant’s statements concerning the measurements of the cells and the numbers of detainees and beds held there.  The Court noted that severe overcrowding is in itself sufficient to constitute a violation of the applicant’s rights set out in Art.3. However, the relevant remand prison records, which would have clarified the exact measurements and numbers of beds and detainees, had been destroyed after the expiry of the time-limit for their storage. The Government did not stop the destruction although it had notice of the present application. Given that the Government alone had access to the relevant information but had failed to submit it without a reasonable explanation, the Court examined the issue on the basis of the applicant’s submissions (Ahmet Özkan and Others v. Turkey, no.21689/93, 2004). Accordingly, the Court accepted that the space afforded to the inmates did not exceed 2sq. m per person and on certain occasions were as low as 0.9sq m per person; the number of sleeping beds was insufficient and the inmates had to take turns to sleep.  The Court reiterated that the applicant had spent a year and a half in these degrading and inhuman conditions. The Government is responsible for ensuring that their prisons are organised in a way that respects the dignity of the detainees, irrespective of the financial or logistical resources.  The Court found a violation of Art.3 on the account of a lack of personal space for the detainees. Other claims: The Court did not find a violation of Art.3 on account of the lack of medical treatment, because the applicant did not provide a medical opinion confirming his point. The Court did also not find a violation of Art.5§3. The Court noted that in the present case the domestic courts had examined all the facts and paid due regard to the presumption of innocence but could justify the period of pre-trial detention.  Taking into account the various factors, such as the complexity of the case, the applicant’s conduct and he conduct of the competent authorities, the Court did also not find that the length of the criminal proceedings was unreasonable. The Court held unanimously that there had been a violation of Art.3 on the grounds that the applicant had been detained in inhuman and degrading conditions. Applying Art.41 of the Convention, the Court awarded the applicant EUR 3,000 in respect of non-pecuniary damages.  2009-10-26T06:00:27+00:00 http://www.uclshrp.com/bulletin/cases/giuliani_v_italy/ http://www.uclshrp.com/bulletin/cases/giuliani_v_italy/ On 20 July, during an authorised demonstration, there were extremely violent clashes between anti-globalisation militants and law-enforcement officers. At around 5 p.m., under pressure from the demonstrators, a group of about 50 carabinieri withdrew on foot, leaving two vehicles exposed. One of them, with three carabinieri inside, remained stuck on Piazza Alimonda. It was surrounded and violently attacked by a group of demonstrators, some of whom were armed with iron bars, pickaxes, stones and other blunt implements. One of the carabinieri, who had been injured, drew his firearm and, after giving a warning, fired two shots outside the vehicle. Carlo Giuliani, who was wearing a balaclava and playing an active part in the attack, was fatally wounded by a bullet in his face. In an attempt to move the vehicle away, the driver twice drove over the young man’s unconscious body. When the demonstrators had been dispersed, a doctor arrived at the scene and pronounced Carlo Giuliani dead. An investigation was opened immediately by the Italian authorities. Criminal proceedings were instituted against the officer who had fired the shots and the driver of the vehicle for intentional homicide. An autopsy performed within 24 hours of the death revealed that the death had been caused by the shot and not by the attempts to drive the vehicle away. The forensic expert found that the shot had been fired at a downward angle. At the public prosecutor’s request three expert reports were prepared. The authors of the third report, submitted in June 2002, deplored the fact that it had been impossible to examine the body, since the public prosecutor had in the meantime authorised the family to have it cremated. They concluded that the bullet had been fired upwards by the carabiniere but had been deflected by a stone thrown at the vehicle by another demonstrator. On 5 May 2003 the investigating judge discontinued the proceedings. She found that the driver of the vehicle, whose actions had resulted only in bruising, could not be held responsible for the killing as he had been unable to see Carlo Giuliani, given the confusion prevailing around the vehicle. As to the officer who had fired the fatal shot, the judge took the view that he had fired into the air without intent to kill and that he had in any event acted in self-defence in response to the violent attack on him and his colleagues. Relying on Article 2, the applicants alleged that Carlo Giuliani’s death had been caused by excessive use of force and that the organisation of the operations to maintain and restore public order had been inadequate. In addition, they argued that the failure to provide immediate assistance amounted to a violation of Articles 2 and 3 (prohibition of inhuman treatment). The applicants further complained, under Articles 2, 6 (right to a fair hearing) and 13 (right to an effective remedy), that there had not been an effective investigation into their close relative’s death. Lastly, they alleged that the Italian Government had breached Article 38 of the Convention (examination of the case) by omitting to provide information to the Court or by producing false information. Decision of the Court Article 2 Excessive use of force The Court first reiterated the general principles established in its case-law concerning Article 2. Next, on the basis of the evidence produced by the parties, it analysed the reasons behind the investigating judge’s decision to discontinue the proceedings. In this connection it noted that the carabiniere who had fired the shots had been confronted with a group of demonstrators carrying out a violent attack on the vehicle he was in, that he had issued warnings, holding his weapon in such a way that it was clearly visible, and that he had fired only when the attack had continued. The Court agreed with the investigating judge that the use of lethal force had not exceeded the limits of what was absolutely necessary in order to avert what the carabiniere had honestly perceived to be a real and imminent danger to his life and the lives of his colleagues. It further found that it was not necessary to examine in abstracto the compatibility with Article 2 of the applicable legislative provisions on the use of weapons by law-enforcement officers, as the situation under consideration had involved an individual decision taken in a state of panic. Accordingly, there had been no disproportionate use of force and thus no violation of Article 2 in this regard. Compliance with positive obligation to protect life In general terms, the Court observed that when a State hosted an international event entailing a very high level of risk, it had a duty to take all the appropriate security measures, while also safeguarding any demonstrators’ rights to freedom of expression and assembly. In the present case the Court had to consider whether in planning and directing the public-order operation the Italian authorities had minimised the risk of lethal force being used. In that connection it noted that, according to the applicants, there had been a number of shortcomings in the organisation of the operation and that no investigation at domestic level had shed any light on those allegations. In the absence of such an investigation, and bearing in mind that the operation had been very broad-ranging and had placed the law-enforcement agencies under enormous strain, the Court was unable to establish the existence of a direct and immediate link between any shortcomings in the planning of the operation and the death of Carlo Giuliani. In addition, the Court observed that after the shots had been fired, the police officers present on Piazza Alimonda had immediately called the emergency services. It was therefore not established that the Italian authorities had failed to comply with their positive obligations to protect Carlo Giuliani’s life. Compliance with procedural obligations under Article 2 The Court noted, firstly, that the autopsy performed on Carlo Giuliani’s body had not led to the determination of the precise trajectory of the fatal bullet or to the recovery of a metal fragment which a scan had clearly shown to be lodged in the victim’s skull. Moreover, even before he had received the results of the autopsy, the public prosecutor had authorised the Giuliani family to proceed prematurely with their close relative’s cremation, thereby rendering it impossible to conduct any further analyses. The Court further considered that the domestic investigation had concerned only the precise circumstances of the incident, being confined to examining whether those directly involved should be held responsible, without seeking to identify any shortcomings in the planning and management of the public-order operations. Italy had therefore not complied with its procedural obligations in connection with the death of Carlo Giuliani. Articles 3, 6 and 13 The applicants alleged that the act of driving the vehicle over Carlo Giuliani’s body and the failure to provide immediate assistance had caused him suffering amounting to inhuman and degrading treatment. The Court considered that it could not be inferred from the law-enforcement officers’ conduct that they had had any intention to inflict suffering, and found that, having regard to the circumstances of the present case, the complaint fell to be examined solely under Article 2. Furthermore, in view of its finding of a violation of Article 2 in its procedural aspect, the Court considered that it was not necessary to consider the case separately under Articles 6 and 13. Article 38 Contrary to what the applicants had maintained, the Court considered that the Government had cooperated sufficiently, allowing it to conduct an appropriate examination of the case. Italy had therefore not failed to comply with its obligations under Article 38. The Court held: unanimously that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights as regards the excessive use of force; by five votes to two that there had been no violation of Article 2 as regards the State’s positive obligations to protect life; by four votes to three that there had been a violation of Article 2 as regards the procedural obligations under that Article unanimously that there had been no violation of Article 38 (examination of the case). Source: Registry, European Court of Human Rights 2009-10-07T14:27:34+00:00 http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_purdy_v_dpp/ http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_purdy_v_dpp/ The appellant Mrs Purdy appealed against a decision that found that the absence of a crime-specific policy identifying the facts and circumstances that the Director of Public Prosecutions would consider when deciding whether to prosecute an individual for assisting another person to commit suicide did not render the Suicide Act 1961, s.2(1) unlawful and did not mean that it was not in accordance with law for the purposes of Article 8 of the European Convention on Human Rights. Mrs Purdy, who suffered a debilitating illness, had declared her wish to travel to a country where assisted suicide was lawful to end her life when it became utterly unbearable. She sought information in order to make an informed decision about whether to ask for her husband’s assistance in doing so. The DPP had declined to say what factors, other than the general factors contained in the Code for Crown Prosecutors, he would take into consideration in deciding whether, under s.2(4) of the Act, it was in the public interest to prosecute those who assisted people to end their lives in countries where assisted suicide was lawful. Mrs Purdy unsuccessfully sought judicial review and her appeal was also rejected. She argued that (1) the prohibition in s.2(1) constituted an interference with her right to respect for her private life under art.8(1); (2) such interference was not “in accordance with the law” as required by art.8(2) in the absence of an offence-specific policy by the DPP which set out the factors that would be taken into account by him and the Crown Prosecutors acting on his behalf in deciding under s.2(4) whether it was in the public interest to bring a prosecution under that section. The House of Lords allowed the appeal. Applying the case of Pretty v UK [2002] 2 FLR 45 ECHR, they held that the right to decide when or how to die was not excluded from art.8(1). Article 8(1) was engaged in the instant case. The Court was found not to provide clear guidance as to how the public interest test was to be applied where the offence was aiding or abetting the suicide of a person who was terminally ill or severely and incurably disabled, who wished to be helped to travel to a country where assisted suicide was lawful and who, having the capacity to take such a decision, did so freely and with full understanding of the consequences. The Code thereforedid not satisfy the art.8(2) requirements of accessibility and foreseeability in assessing how prosecutorial discretion was likely to be exercised in s.2(1) cases. The DPP was required to promulgate an offence-specific policy identifying the facts and circumstances that would be taken into account in deciding whether to consent to a prosecution under s.2(1). August 2009 2009-08-08T10:26:46+00:00 http://www.uclshrp.com/bulletin/cases/feret_v_belgium/ http://www.uclshrp.com/bulletin/cases/feret_v_belgium/ The Court held by 4 votes to 3 that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights in respect of the conviction of the applicant, chairman of the political party “Front National”, for publicly inciting discrimination or hatred, following complaints concerning leaflets distributed by that party during election campaigns. The applicant, Mr Daniel Féret, chairman of the political party “Front National-Nationaal Front” (the “Front National”), is the editor in chief of the party’s publications and owner of its website. He was a member of the Belgian House of Representatives at the relevant time. Between July 1999 and October 2001 the distribution of leaflets and posters by his party, in connection with the election campaigns of the Front National, led to complaints by individuals and associations for incitation of hatred, discrimination and violence, filed under a law of 30 July 1981 which penalised certain acts inspired by racism or xenophobia. The leaflets distributed included urges to ‘oppose the islamisation of Belgium’ or to reserve the right to asylum to European citizens. The applicant’s parliamentary immunity was waived on the request of the Principal Public Prosecutor at the Brussels Court of Appeal and criminal proceedings were brought against him as author and editor-in-chief of the offending leaflets and owner of the website. On 13 June 2004 the applicant was elected to the Bruxelles-Capitale Regional Council and to the Parliament of the French Community, both positions affording him new parliamentary immunity. The public prosecutor reactivated the proceedings on 23 June 2004. On 20 February 2006 the Brussels Court of Appeal held a complete trial and on 18 April 2006 sentenced Mr Féret to 250 hours of community service related to the integration of immigrants, together with a 10-month suspended prison sentence. It declared him ineligible for ten years. Lastly, it ordered him to pay one euro to each of the civil parties. The court found that the offending conduct on the part of Mr Féret had not fallen within his parliamentary activity and that the leaflets contained passages that represented a clear and deliberate incitation of discrimination, segregation or hatred, and even violence, for reasons of race, colour or national or ethnic origin. Relying on Article 10 (freedom of expression), Mr Féret alleged that his conviction for the content of his political party’s leaflets represented an excessive restriction on his right to freedom of expression. The Strasbourg Court found that the interference with Mr Féret’s right to freedom of expression had been provided for by law (law of 30 July 1981 on racism and xenophobia) and had the legitimate aims of preventing disorder and of protecting the rights of others. The Strasbourg Court observed that the leaflets presented the communities in question as criminally-minded and keen to exploit the benefits they derived from living in Belgium, and that they also sought to make fun of the immigrants concerned, with the inevitable risk of arousing, particularly among less knowledgeable members of the public, feelings of distrust, rejection or even hatred towards foreigners. While freedom of expression was important for everybody, it was especially so for an elected representative of the people: he or she represented the electorate and defended their interests. However, the Court reiterated that it was crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance. The impact of racist and xenophobic discourse was magnified in an electoral context, in which arguments naturally became more forceful. To recommend solutions to immigration-related problems by advocating racial discrimination was likely to cause social tension and undermine trust in democratic institutions. In the present case there had been a compelling social need to protect the rights of the immigrant community, as the Belgian courts had done. The Court noted that the authorities had preferred a 10-year period of ineligibility rather than a penal option, in accordance with the Court’s principle of restraint in criminal proceedings. The Court thus found that there had been no violation of Article 10.  August 2009 2009-08-08T10:18:09+00:00 http://www.uclshrp.com/bulletin/cases/author_of_a_blog_v_times_newspapers/ http://www.uclshrp.com/bulletin/cases/author_of_a_blog_v_times_newspapers/ The applicant blogger applied for an interim injunction to stop the respondent newspaper from publishing any information that would or could lead to his identity being revealed to the public. The applicant was a detective constable who wrote in his blog about his police work and what he thought about social and political issues surrounding the police and the administration of justice. One of the reasons why the applicant wished to remain anonymous was because of a significant risk of disciplinary action if his employer (the police authority) found out that he was disclosing information to the public about how police operations were being conducted. This behaviour was restricted by Police (Conduct) Regulations. However, the respondents had managed to discover the identity of the blogger by a process of deduction and investigation – mostly by using information available on the Internet. Therefore, the applicant argued that his anonymity should be maintained, since he had a reasonable expectation of privacy for his identity as the author of the blog, and because there was no countervailing public interest which justified its publication. The application for an interim injunction based on Article 8 of the ECHR 1950 was refused. The court held that the applicant had not been able to demonstrate sufficiently that he had a legally enforceable right to stay anonymous. The court considered previous cases where the claimant had been able to successfully restrain publication of private information – in the absence of a breach of confidence. In such cases, the information in question had mostly been of a strictly personal nature – such as mental or physical health, sexual relationships, and the claimant’s family or domestic arrangements. However, in this case, the court held that the applicant did not have a reasonable expectation of privacy over the information being published in his blog, since blogging is a public activity. Furthermore, the court also felt that there was significant public interest in the applicant’s identity being revealed. The respondents, who had successfully managed to discover his identity despite his own attempts to hide it, should be allowed to reveal it. Thus, on balancing the applicant’s right to privacy and the respondent’s freedom of expression, the court held that the latter outweighed the former. 2009-07-05T09:32:08+00:00 http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_smith_v_oxfordshire_assistant_deputy_coroner/ http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_smith_v_oxfordshire_assistant_deputy_coroner/ Private Smith died of hyperthermia in a UK Base whilst serving for the TA in Iraq. The accommodation space to which he was assigned was described as light and airy but lacking air conditioning. Temperatures reached an excess of 50 degrees Celsius.  Two issues were raised upon appeal. First, the ‘Jurisdictional question’: to what extent British soldiers serving in Iraq are protected by the European Convention on Human Rights. Second, the ‘Article 2 question’, namely as to whether the inquest in to the death of private Smith should comply with article 2 of the Convention. If the inquest needed to comply with article 2, two questions were raised. First whether Private Smith’s death was caused by a defective system operated by the state to afford adequate protection to human life by ensuring, so far as reasonably practicable, that he was an appropriate person, with proper training and equipment, to expose to the extreme heat of Iraq.  Second, whether there was a real and immediate risk of his dying of heatstroke and, if so, whether all reasonable steps were taken to prevent it. The Jurisdiction Question The question was whether a British soldier in the TA who is on military service in Iraq, is subject to the jurisdiction of the United Kingdom (‘the UK’) within the meaning of article 1 of the Convention, so as to benefit from the rights guaranteed by the HRA 1998, while operating in Iraq or whether he is only subject to the jurisdiction for those purposes when he is on a British military base or in a British hospital. The court held in the affirmative that a soldier who dies on a UK base dies within the jurisdiction of the UK within the meaning of article 1 of the Convention and thus can benefit from the rights guaranteed by the HRA 1998. The Article 2 Question The question was whether the inquest into Private Smith’s death must conform to article 2 of the Convention in a particular way. The court distinguished between two types of inquest.  First a traditional inquest and second an ‘article 2 inquest’. The essential difference between them is that the permissible verdict or verdicts in a traditional inquest is significantly narrower than in an article 2 inquest. In addition, it is said that the scope of the investigation is or is likely to be narrower at a traditional inquest. The court held that those who volunteer for the TA should be afforded protection under article 2 ECHR. The Court held that the precise limits of the inquest will be a matter for the coroner but expected that the coroner to consider the questions whether there were any systemic failures in the army which led to Private Smith’s death and, indeed, whether there was a real and immediate risk of his dying from heatstroke and, if so whether all reasonable steps were taken to prevent it. 2009-06-27T09:32:24+00:00 http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_js_sri_lanka_v_secretary_of_state_for_the_home_depa/ http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_js_sri_lanka_v_secretary_of_state_for_the_home_depa/ J appealed against the dismissal of his application for permission to apply for judicial review of the Secretary of State’s decision that he was ineligible for protection under the Convention relating to the Status of Refugees 1951 (United Nations). J was a Tamil and a citizen of Sri Lanka who had claimed asylum in the United Kingdom. He was a long-term voluntary member of the Liberation Tigers of Tamil Eelam (LTTE), having served in the intelligence wing. J claimed that, if returned to Sri Lanka, he would face mistreatment because of his race and his membership of the LTTE. The Secretary of State found that the LTTE was responsible for war crimes and crimes against humanity. She found that J had been a highly-trusted member of that organisation and therefore had been complicit in its crimes. She thus considered him ineligible for humanitarian protection and protection under the Convention. The issue to be determined was whether her reasoning was sound. J’s appeal was allowed. The Court of Appeal considered that the starting point for the decision-maker was the Rome Statute of the International Criminal Court. The Secretary of State had to identify the type of crime, as defined in articles 7 and 8, and then consider whether there were serious reasons for regarding the applicant as guilty of such a crime. In order for him to have committed the crime on the basis of joint enterprise liability, there had to be a common design amounting to or involving the commission of a crime provided for in the statute. The applicant must have participated in the furtherance of the joint criminal purpose making a significant contribution to the commission of the crime, and that participation had to have been with the intention of furthering one of the crimes provided for in the statute – Prosecutor v Tadic (ICTY) was considered. Guidance given by the Immigration Appeal Tribunal in Gurung v Secretary of State for the Home Department [2003] Imm. A.R. 115, for determining whether there were serious reasons for considering a person guilty of such a crime was disapproved, since the Tribunal neither examined nor explored the principles of liability set out in the Rome Statute of the International Criminal Court art.25, the Statute of the International Criminal Tribunal for the former Yugoslavia art.7(1) and the decision in Tadic. Moreover, its approach to liability was potentially wider than that taken in those statutes and the cases under those statutes. It was clear that mere membership of an organisation committed to the use of violence to achieve its political goals was not enough to make a person guilty of an international crime. The Tribunal in Gurung had said that if the organisation was one whose aims, methods and activities were predominantly terrorist, very little more would be necessary; but it did not identify what more was necessary. The authorities showed that it could not be participation in activities that did not involve or promote the commission of international crimes. While it was the purpose of some members of the LTTE to commit international crimes in pursuit of their organisation’s political ends, the Secretary of State had wrongly presumed that J, as a member of the LTTE, was guilty of personal participation in those crimes. She should have instead considered whether there was evidence affording serious reason for considering that he was party to that design, that he had participated in a way that made a significant contribution to the commission of the crimes, and that he had done so with the intention of furthering the perpetration of them. Although his position in the organisation showed that he was trusted to perform his role, neither a significant contribution nor an intention to further the purpose of those members of the LTTE was shown. 2009-05-12T17:59:19+00:00 http://www.uclshrp.com/bulletin/cases/mr_tommy_mcglynn_v_welwyn_hatfield_district_council/ http://www.uclshrp.com/bulletin/cases/mr_tommy_mcglynn_v_welwyn_hatfield_district_council/ The appellant M, who had a history of drug addiction, had a non-secure Tenancy Agreement with the Council which could be terminated by notice. From about September 2003 the council received repeated complaints from a neighbour that M was, because of his drug dealing reputation, a magnet for noisy and ill-behaved visitors. On 30 April 2004 the council served a notice to quit on M. The voluntary organisation helping M recover from his drug addiction made a representation by letter to which the council replied on 2 June stating that their general policy was not to ‘take action against a person’s tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality’ and stating further ‘if we do not receive any further complaints of anti-social behaviour that can be linked to M or his property we will consider granting him a further non-secure tenancy’. From July 2004 to April 2005 however the complaints continued month by month. On 14 April 2005 the council issued a claim seeking an order for possession. The principal matter which fell to be determined in every case was whether the relevant inquest had complied with the procedural obligation - imposed (implicitly) by art 2 of the European Convention on Human Rights - for an ‘effective official investigation’ to be conducted into a death where ‘agents of the state are, or may be, in some way implicated’. On 7 December 2005, the District Judge Eynon made a possession order. For the purposes of the hearing he said that he accepted the evidence of the appellant that he had never caused nor encouraged nuisance at his home and that the unwanted visits he received were not under his control. However, he held that since the appellant was not a secure tenant he had no defence according to the case of Sheffield City Council v Smart [2002] EWCA Civ 04 [2002] LGR 467. M appealed contending that the Council could not have been satisfied that there had been a significant breach of the Tenancy Agreement. M was given a legitimate expectation that his situation would be fully investigated prior to any possession order, and the Council had behaved unreasonably in failing to investigate. The issue was whether it was seriously arguable that the council did not do enough to satisfy itself that there had been some significant further breach of the Tenancy Agreement. Lord Justice Toulson considered that the District Judge had taken an over narrow view of the significance of the letter dated 2 June 2004 containing a statement of policy (see above). He noted that the Council was not required to conduct the equivalent of a judicial investigation. He observed nonetheless that on the paucity of information available to the district judge about the council’s decision-making process and on such uncertainty as to whether M would be given the opportunity to answer the proceedings, it was wrong and insufficiently supported by evidence to conclude, as the District Judge did, that M’s case was not seriously arguable. Lord Justice Aikens and Lord Justice Sullivan agreed. Appeal allowed. 2009-04-18T20:49:20+00:00 http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_keith_lewis_v_hm_coroner_for_the_mid_and_north_divi/ http://www.uclshrp.com/bulletin/cases/r_on_the_application_of_keith_lewis_v_hm_coroner_for_the_mid_and_north_divi/ The claimants sought judicial review of the rulings given by the defendant coroners in the course of the inquests following the claimant’s relatives’ deaths whilst in custody. The principal matter which fell to be determined in every case was whether the relevant inquest had complied with the procedural obligation imposed (implicitly) by Article 2 of the European Convention on Human Rights (right to life) for an ‘effective official investigation’ to be conducted into a death where ‘agents of the state are, or may be, in some way implicated’. In the first case the claimant’s relative was found hanging dead in his cell. The coroner ruled that the jury could not consider questions relating to the actions of the prison service after the claimant’s relative had been found on the ground and that the jury’s role was limited to considering factual questions directly relating to the cause or contribution of death. The coroner held that because there was no evidence that the claimant’s relative was alive when found, any acts or omissions by the prison service thereafter could not have contributed to his death. In the second case the claimant’s relative had set off his emergency cell alarm before hanging himself. The audible signal from the alarm panels had been disabled for some time and not repaired, and although the alarm light outside the prisoner’s cell was lit, the alarm was not answered for around 15 minutes and officers then attending had not had the necessary tool to cut the ligature from his neck. The coroner held that it was not for the jury to decide whether there was neglect or not. The coroner stated that the jury could make factual conclusions, but they could not be judgmental in respect of any acts or omissions or use words like “because” or “contributed to”. In the third case, at the inquest the coroner had similarly directed the jury not to be ‘judgmental’ in their conclusions and that that they may produce only an objective narrative verdict. The claimants contended, inter alia, that a jury had jurisdiction to consider facts that were not directly causative of death as to be otherwise restricted would be bound to prevent valuable and important comment about practices, procedures and omissions in prison as required by a proper investigation within the meaning of Article Art 2 ECHR. The Secretary of State, as an interested party, submitted that the Art2 ECHR requirement to investigate a death was to be construed narrowly so that the only circumstance which was relevant to the death in question was one which bore a causal relationship to the death. The claimants further argued that a coroner was not permitted to prevent a jury from reaching and recording findings of a factual nature, and that directing a jury not to use words such as “because” or “contributed to” wrongly inhibited them from making judgmental conclusions of fact central to the issues raised. It was also submitted that the coroner in the second case had erred in failing to leave the verdict of neglect as there was sufficient evidence to do so. It was held that Art 2 ECHR was not prescriptive about either the precise scope or form of the investigation needed to fulfil the obligation nor the level of scrutiny required in respect of “non-causal” matters. There was no requirement under Art 2 ECHR that a jury reach factual conclusions on events that might cause or contribute to death in similar circumstances in the future. Compliance with the Convention did not require that the power of a coroner to alert the relevant person to take action where there was concern that future deaths might arise, pursuant to the Coroners Rules 1984 r.43, be exercisable by a jury applied. The correct approach for the court to take, when considering whether the conduct of an inquest and a coroner’s directions satisfied the requirements of Art2 ECHR, was the narrow approach identified by the Secretary of State: the Secretary of State had disagreed with the Claimant’s core submission that Article 2 imposes an obligation to leave questions to the jury concerning factors that cannot be shown on the balance of probabilities to have caused or contributed to the death in question, suggesting that the conclusions be limited to causally relevant matters. The judge considered it inconceivable that an investigation into the cause of death would be inadequate for the purposes of Art 2 ECHR because its conclusions were limited to causally relevant matters. Accordingly, whilst a coroner had the power and might well consider it appropriate to conduct a wider ranging investigation than was required for the verdict, Art 2 ECHR did not require an investigation of, or expression of the conclusions upon, events and matters that neither caused or contributed to the death in question in order to render the inquest Art 2 ECHR compliant. The applications in the first and third cases were, accordingly, refused. In the second case, the coroner’s directions had had the effect of preventing the jury from embodying judgmental conclusions of factual nature on a number of the disputed factual matters at the heart of the case. The inquest was not, therefore, an effective means for the proper discharge of the Art 2 ECHR obligation. The coroner had erred further in deciding not to leave the ancillary verdict of neglect to the jury as there was clear evidence of gross failures on the part of the prison and its staff which formed part of a clear and direct chain of causation leading or contributing to his death. The inquisition in that case was, accordingly, quashed and a new inquest ordered. 2009-04-18T20:47:55+00:00 http://www.uclshrp.com/bulletin/cases/muradova_v_azerbaijan/ http://www.uclshrp.com/bulletin/cases/muradova_v_azerbaijan/ The case concerned Ms Muradova’s complaint that she became blind in one eye after being hit by a police officer during a demonstration and that no effective investigation was carried out into the incident. On 16 October 2003 supporters of the opposition presidential candidate, who had just lost the election, gathered in the centre of Baku in Azerbaijan to protest. Violent clashes broke out between the demonstrators and the large numbers of anti-riot police and military personnel deployed. Ms Muradova, who was present when the demonstration was being dispersed by the law-enforcement forces, was seriously injured. According to Ms Muradova, a police officer hit her right eye with a truncheon when she asked him for help in getting up from the ground. However, the authorities submitted that her injury was not caused by the police, but was the result of her having fallen down on a blunt object. Despite emergency treatment and surgery, Ms Muradova became permanently blind in her right eye. In February 2004, Ms Muradova filed a criminal complaint concerning the incident. By that time, the prosecution had already brought criminal proceedings into the public disorder generated by the demonstrators during the incident. No separate criminal proceedings were brought as a result of Ms Muradova’s complaint. In March and September 2004, two forensic reports were issued concerning her injuries. Although both reports confirmed the seriousness of her condition, neither of them concluded with certainty the causes of her injury. Of the eight eye witnesses questioned in addition to Ms Muradova, all eight denied having seen her at all in the demonstration. In November 2004, the criminal investigation was discontinued due to lack of evidence in support of Ms Muradova’s version of events. At the same time, in March 2004, Ms Muradova brought civil proceedings claiming compensation for her injury. The court heard three witnesses, called by her. Two of these witnesses submitted that they had seen her having fallen to the ground among the demonstrators and that a police officer had hit her with a truncheon in the right eye. The domestic courts ultimately rejected her claim due to lack of proof. Relying on Article 3 (prohibition of inhuman or degrading treatment), Ms Muradova alleged that on 16 October 2003 she was hit in the eye with a truncheon by a police officer during a demonstration, and that the incident was not investigated adequately. Article 3 (injury) The Court first noted that, on 16 October 2003, a particularly large-scale confrontation, involving a high degree of violence on both sides, had taken place between protesters and law-enforcement officers. It also observed that, on that day, Ms Muradova had been present when the confrontation had occurred, that her right eye had been seriously injured and that the police had used force, including the use of truncheons, in order to disperse the protesters and quell the disorder. The Court considered that Ms Muradova had produced sufficiently strong evidence in support of her version of the incident, namely her medical records and witness statements. The Court was particularly astonished with the lack of reasoning in how the domestic court had dismissed Ms Muradova’s civil claim for compensation, merely dismissing the witness statements as groundless. Further, the authorities had not justified the degree of force used against Ms Muradova, given that she had not been arrested or prosecuted for any violence during the demonstration and had tried to leave it to avoid danger. The Court therefore held that the force used by the police in respect of Ms Muradova had been excessive, in violation of Article 3. Article 3 (investigation) The Court also found that although a criminal investigation had been launched, it had been unclear whether it had actually examined the actions of the police during the demonstration. In addition, the forensic reports were issued several months after the events. Indeed, the conclusion in one of the reports had not excluded the possibility that Ms Muradova’s injury had been caused by a hard blunt object; the Court considered that that could well have been a truncheon. Lastly, the investigating authorities had not attempted to seek or hear testimony from the witnesses presented by Ms Muradova during the civil proceedings. That omission in particular had contributed to the general ineffectiveness of the investigation. Accordingly, the Court held that the authorities had not conducted an effective investigation into Ms Muradova’s complaint, in violation of Article 3. The Court held unanimously that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, on account of the excessive force used in respect of Ms Muradova during a demonstration in protest of the 2003 presidential election results, and of there not having been an effective investigation into her complaint. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 25,000 euros (EUR) in respect of non-pecuniary damage. The Court’s judgments are accessible on its Internet site. 2009-04-07T22:30:27+00:00