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Home Human Rights Archive for category "European Convention on Human Rights"

Principle or pragmatism? The Supreme Court’s judgment in Keyu and others v Secretary of State for Foreign & Commonwealth Affairs

Published on December 24, 2015        Author: 

On 25 November, the Supreme Court held in Keyu and Others v Secretary of State for Foreign & Commonwealth Affairs [2015] UKSC 69 that the Foreign & Commonwealth Office was not under a duty, under Article 2 ECHR or domestic law, to hold an inquiry into the circumstances in which 24 unarmed rubber plantation workers were shot dead by British soldiers in 1948 during the emergency in Malaya. The issue in question, of when a state is under a duty to investigate historical events under Article 2 or 3 of the European Convention on Human Rights (ECHR), is increasingly relevant in a myriad of contexts today, including the holding of fresh inquests where new evidence has emerged (see the High Court of Northern Ireland’s recent judgment in Finucane’s (Geraldine) Application), accountability for death and mistreatment in the British colonies (see the Mau Mau litigation) and the prosecution of sexual offences carried out years ago. So what does Keyu add to this developing area?

The claim was brought under several grounds, and the judgment contains interesting dicta on a number of issues, including whether the Wednesbury ‘reasonableness test’ should be replaced by a proportionality test (on which there has been commentary elsewhere, see here), and the extent to which UK human rights jurisprudence should ‘mirror’ that of the ECtHR with regard to temporal jurisdiction. But the main argument in the case, and the focus of this post, is the claim brought under Article 2 ECHR. On this the Court was unanimous, albeit for different reasons.

The ECtHR’s criteria on temporal jurisdiction

In examining the Article 2 claim, the Supreme Court had to apply the complex and unique rules created by the European Court of Human Rights (ECtHR) to circumscribe the limits of its temporal jurisdiction in relation to deaths that took place before the state concerned became a party to the ECHR. The ECtHR has held that while it will not have jurisdiction ratione temporis over the substantive interference of Article 2 involved in such deaths by virtue of the non-retroactivity principle, the procedural obligation to conduct an effective investigation into the deaths is detachable from the substantive interference for the purposes of its jurisdiction ratione temporis (Silih v Slovenia). Read the rest of this entry…

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The role of legitimacy and proportionality in the (supposedly absolute) prohibition on inhuman and degrading treatment: the United Kingdom’s High Court decisions in DD v Secretary of State

Published on December 22, 2015        Author: 

In the United Kingdom High Court (Administrative) decision of DD v Secretary of State for Home Department [2014] (‘DD’) Ouseley J was required to consider, on a preliminary basis, whether the imposition of a Terrorism Prevention and Investigation Measure (‘TPIM’) (the successor of control orders) had violated the appellant’s right to freedom from inhuman or degrading treatment under article 3 of the European Convention on Human Rights (‘ECHR’). The decision, and the subsequent appeal decision of Collins J (DD v Secretary of State for Home Department [2015] (‘DD (No 2)’), is significant for what it says about the role of the legitimacy and proportionality of measures when considering whether they are inhuman or degrading. More specifically, the first instance decision of Ouseley J appears to impermissibly balance ill-treatment against national security interests. In addition to this ostensible and impermissible conflation, both decisions rely on the European Court of Human Rights (‘ECtHR’) jurisprudence to support various findings without properly engaging with the very significant differences between such decisions and the facts of the instant case (especially the difference between detention following conviction and the imposing of TPIMs on individuals based on various degrees of ‘belief’ held by the Secretary of State). Similarly, neither decision considers the potential impact of the principle, regularly restated by the ECtHR, that the alleged conduct of an individual is irrelevant to a consideration of whether article 3 has been violated.

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Russia Defies Strasbourg: Is Contagion Spreading?

Published on December 19, 2015        Author: 

These are undoubtedly troubled times for the European human rights system. We have written previously about the risks that the toxic anti-Strasbourg rhetoric from certain quarters in the UK (frequently, but not exclusively, focused on the question of prisoner voting rights) might have contagious consequences further afield. In his memorandum to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill in October 2013, Council of Europe Human Rights Commissioner Nils Muižnieks issued an ominous warning that continued non-compliance with the Hirst and Greens judgments:

‘…would have far-reaching deleterious consequences; it would send a strong signal to other member states, some of which would probably follow the UK’s lead and also claim that compliance with certain judgments is not possible, necessary or expedient. That would probably be the beginning of the end of the ECHR system’.

Ed Bates has recently linked the UK Government’s inaction with the failure to implement cases such as Ilgar Mammadov v Azerbaijan, which concerned the politically-motivated prosecution of an opposition politician, as a result of which the Committee of Ministers has called for his release: ‘It seems hard to resist the conclusion that the continued failure to implement Hirst…saps the Convention’s authority…’

Minister for Human Rights Dominic Raab was unrepentant, arguing that it was a ‘matter of democratic principle’ to maintain the ban on prisoner voting ‘for the foreseeable future’. The next examination of the case by the Committee of Ministers may now be up to a year away.

The uncertainty over the UK’s position vis-à-vis the European Convention on Human Rights (ECHR) will linger into the new year, because of the further delays in the publication of the government’s proposals for a ‘British bill of rights’ and its continuing equivocation. When asked recently (of all days, on human rights day…) whether the government would rule out introducing legislation that would ‘purport to relieve’ the UK from its obligation to comply with Strasbourg judgments – as proposed in the Conservative Party consultation document released by former Justice Secretary Chris Grayling – the Minister of State, Lord Faulks, replied: ‘While we want to remain part of the ECHR, we will not stay at any cost’.

David Cameron had also previously refused to rule out withdrawal. Read the rest of this entry…

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The Continued Failure to Implement Hirst v UK

Published on December 15, 2015        Author: 

It is over a decade now since the European Court of Human Rights delivered Hirst v United Kingdom (6 October 2005), ruling that the UK’s blanket (legislative) ban on convicted prisoners voting breached Art 3 of Protocol 1 to the European Convention on Human Rights (hereafter, the ‘Convention’). Five years ago, in Greens and MT v UK (23 Nov 2010), the Court ordered the UK to table Convention-compliant legislative proposals to secure compliance with Hirst. This resulted in a Report of a special Joint Committee of the UK Parliament (the Report of the Joint Committee on the Draft Prisoner Voting (Eligibility) Bill (16 December 2013)), which concluded that the law reform required to secure compliance with the Convention was comparatively minor and agreed that there were sound reasons to amend the law and proposed specific ways forward.

Two years on and the UK government has done no more than acknowledge the Report, which Parliament has not considered. With the law still not amended, on 9 December 2015 a further milestone in the chronology of prisoner voting saga occurred when the Committee of Ministers passed a second interim resolution highly critical of the UK’s inaction. The Daily Telegraph has reported this as a victory for the UK, although, in fact, the Committee of Ministers will return to the matter in December 2016.

This post discusses and criticises the reasons for inaction and non-compliance supplied by the Michael Gove (Lord Chancellor and Secretary of State for Justice) when he appeared before the House of Lords’ Select Committee on the Constitution on 2 December 2015 (Q 11, pp17-18 [unrevised version]).

When pressed for answers on the prisoner voting issue, Mr Gove conceded that the Joint Committee on the Draft Prisoner Voting (Eligibility) Bill’s (hereafter the ‘Joint Committee’) Report ‘absolutely’ ‘deserve[d] in due course a fuller answer’. Nevertheless, he would not commit to when this would be, other than to say that it would be ‘after’ the publication of the consultation document on a proposed UK Bill of Rights (replacing the Human Rights Act 1998), which is to be expected in the new year. Read the rest of this entry…

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France Derogates from ECHR in the Wake of the Paris Attacks

Published on December 13, 2015        Author: 

On 24 November, France filed a formal notice of derogation from the European Convention on Human Rights with the Secretary-General of the Council of Europe. The notice is available here (and is reproduced in full below), while the French legislation referred to in the notice is available here. As far as I could tell from the UNTC website, France has not (yet) derogated from the ICCPR. The state of emergency in France has been used even with respect to issues that have no bearing on terrorism, for example to curb climate change protests in Paris. The emergency powers have been criticised on civil liberties grounds, e.g. by Human Rights Watch. It seems likely that they will be at issue in litigation before French domestic courts and before the European Court in Strasbourg. In that regard, the derogation notice is remarkably vague and unhelpful, merely stating that some of the emergency measures ‘may involve a derogation from the obligations’ under the ECHR, without explaining which measures exactly do, in fact, require a derogation and to what extent, let alone why precisely were those specific measures strictly required by the exigencies of the situation. What Strasbourg will make of this rather pro forma derogation if and when a relevant case comes before it is anyone’s guess.

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Blockbuster Strasbourg Judgment on Surveillance in Russia

Published on December 7, 2015        Author: 

Last Friday a unanimous Grand Chamber of the European Court delivered a hugely important judgment in Roman Zakharov v. Russia, no. 47143/06, in which it found serious and systematic faults with the Russian legislative framework regulating the surveillance of mobile communications. This is set to be a leading Strasbourg authority on assessing the compliance of surveillance measures with human rights law, a topic we’ve already extensively discussed on the blog. This judgment important for a number of reasons.

First, because a unanimous Grand Chamber reaffirmed much of relatively older or Chamber-based case law, and applied the principles it identified robustly. This provides an important indication that the Court remains acutely aware of the dangers surveillance programs possibly pose to democratic societies, and that it will also scrutinize such programs robustly in the cases shortly coming before it, e.g. against the United Kingdom. I must say that I was particularly struck by how the Russian judge in the Court, Judge Dedov, concluded his concurring opinion with a quote from Edward Snowden – with the added irony of Snowden still continuing his sojourn in Russia, the very country whose regulatory system of surveillance the Court exposed as so sorely inadequate.

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Ukraine Derogates from the ICCPR and the ECHR, Files Fourth Interstate Application against Russia

Published on October 5, 2015        Author: 

I’ve somehow managed to miss this – and I don’t think it has been widely reported – but in June this year Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights. In late August it also filed a new interstate application before the European Court of Human Rights against Russia, and this is the really big one, dealing with events in Crimea and Eastern Ukraine after September 2014. A couple of days ago it was communicated by the Court to Russia for a response, as detailed in the Court’s press release. The press release also explains the current state of Ukraine/Russia related litigation; while one of the four interstate cases was discontinued, the three remaining cases come coupled with some 1,400 individual cases on various issues, against Russia, Ukraine, or both. Obviously this whole set of cases – together with those dealing with the downing of MH17, and future Ukraine/Russia cases to come – presents one of the most significant challenges that the Court has ever had to face on how the Convention should apply in armed conflict.

The press release also refers to Ukraine’s derogation from the ICCPR and the ECHR. The text of the detailed notice of derogation can be found here and here. In particular, Ukraine derogated (or at least attempted to derogate) from Articles 5, 6, 8 and 13 of the Convention, and the corresponding articles in the ICCPR. Much of the derogation notice, and the relevant Ukrainian legislation it refers to, deals with detention issues and other restrictions on personal liberty, such as the institution of curfews, as well as changes to judicial and prosecutorial procedures. The most important derogation seems to be the extension of detention without judicial authorization from 72 hours to 30 days, subject to decision of a prosecutor.

Two things struck me as particularly interesting – and particularly unhelpful – after reading the derogation notice.

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Some Thoughts on the Serdar Mohammed Appeals Judgment

Published on August 10, 2015        Author: 

In this post I’d like to add a few thoughts on the recent Court of Appeal judgment in Serdar Mohammed, that we already covered on the blog last week (here and here). The case is now heading to the UK Supreme Court, and may also eventually end up in the European Court of Human Rights – although Strasbourg will be looking carefully at the Supreme Court’s judgment even if the case doesn’t find its way to it.

First off, I think everything that can be said about the ‘big issue’ of authority to detain in NIAC has already been said; those already committed to either view are not going to be dissuaded by some novel argument. For my part, I only wish to note that after the Court of Appeal’s (unanimous!) judgment it looks increasingly unlikely that the Supreme Court will overturn the finding of the lower courts (although that of course may still happen), especially bearing in mind the rigour and detail of these lower judgments. It is very difficult for any court to essentially make up rules (in reasoning by implication/analogy/structure or whatever) on who precisely can be detained in NIACs, for how long and under what exact process, in the absence of any meaningful legislative guidance. This is not a gap that most judges would feel comfortable in filling, especially when easy analogies to IACs or (much worse, between targeting and detention) break down.

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The UK Court of Appeal in Serdar Mohammed: Treaty and Customary IHL Provides No Authority for Detention in Non-international Armed Conflicts

Published on August 6, 2015        Author: 

Last week’s judgment in Mohammed v. Secretary of State for Defence is rich in analyses and observations concerning detention in non-international armed conflicts (NIACs). One of the key issues assessed concerns the power to detain in NIACs under IHL.

The Secretary of State’s position on this point commenced with a challenge to traditional classifications of armed conflict, contrasting purely internal conflicts with armed conflicts between two States (para 168). It was contended that the legal position concerning the authority to detain in a NIAC now reflects a more complex factual position than that captured under traditional classifications. A third classification must now be recognized: ‘internationalised’ NIACs. This echoes the ICRC’s Opinion Paper on internment, which speaks of ‘NIACs with an extraterritorial element’, in which “the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups” (page 7).

To paraphrase, ‘if it looks and feels like an international armed conflict, let us apply IHL rules on international armed conflicts by analogy’. This is a dangerous approach that the Court of Appeal carefully avoided, instead focusing on its proposed implications.

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The Authority to Detain in NIACs Revisited: Serdar Mohammed in the Court of Appeal

Published on August 5, 2015        Author: 

As the English Court of Appeal breaks for the summer vacation, scores of international lawyers are about to descend on one of its latest decisions: Mohammed v Secretary of State for Defence; Rahmatullah and Ors v MoD and FCO [2015] EWCA Civ 843. In this 109-page long judgment, the Court upholds the conclusion reached at first instance by Leggatt J that British armed forces participating in ISAF lacked the legal authority under international law to detain suspected insurgents captured in Afghanistan.

The implications of Serdar Mohammed are considerable. The case raises difficult questions about the place the European Convention on Human Rights (ECHR) occupies in the international legal order and, more broadly, about the relationship between international human rights law and international humanitarian law (IHL). Those who have followed this debate will recall that we were not convinced by Leggatt J’s reasoning on these points (see here, here and here). In so far as it upholds his main conclusions, we also find ourselves in disagreement with the judgment now delivered by the Court of Appeal. Rather than rehearsing our arguments on the underlying issues in full (see in detail here), in this post we would like to briefly comment on those aspects of the Court’s decision which, in our view, take the debate forward and those which do not. Read the rest of this entry…

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