Strategic Litigation: some notes and examples

Strategic Litigation:  John Wadham


Strategic litigation provides a useful and effective tool in combating discrimination and promoting human rights.

What is Strategic Litigation?

Strategic Litigation involves identifying and pursuing cases on critical equality and human rights issues which, if successful, are likely to have a high impact at the national, regional or international level. Successful litigation can establish important legal precedents or effect changes in legislation, policy or practice. It can also positively influence public opinion and impact the lives of individuals and communities worldwide.

 

How is it used?

Through a careful selection of cases, in close collaboration with local partners (NGOs and lawyers), to develop an understanding of what human rights and equality entail and that have a wider relevance beyond the parties in a particular case. It is very useful to develop specific criteria to guide the selection of strategically significant cases and reject those more likely to fail.

How can it help the “real-life” scenario?

Effectiveness measures concern not so much the volume of litigation, or even the number of cases that are eventually ‘won’, as by the impact on the lives of clients, other victims beyond those involved in the case and the potential to improve standards. In order to ensure the wider impact and make best use of resources, need to seek cases that are either symptomatic of widespread discrimination and human rights violations or which address gaps in protections.

How do Human Rights, Equality and Strategic Litigation work together?

Human Rights and Equality, unlike other sources of litigation, can pose difficulties when attempting to illustrate impacts. The success in court is not the sole impact; the endeavour of human rights and equality organisations in strategic litigation is to amplify these victories in court towards a more extensive agenda, from individual outcome to social justice impact.

 

 

Challenges

  • Selection of cases
  • Funding and legal resources
  • Expertise and continuity from lawyers
  • Prediction
  • Client stamina and support
  • Repeat players v one off

Some examples

       

I want to spend the majority of my time today in setting out some examples of cases that I have been involved in in order to see whether we can draw out any lessons.  Some of these examples are from test cases taken in national courts and some using international courts.

GENDER

Tysiac v Poland

This case concerned a Polish woman who suffered for many years from severe myopia. When she discovered that she was pregnant for the third time, she consulted doctors in Poland to determine what impact this might have on her sight. Although doctors concluded that there would be a serious risk to her eyesight if she carried the pregnancy to term, they refused to issue a certificate authorising termination. Two months into the pregnancy, her eyesight deteriorated significantly. She secured a referral for a termination on medical grounds but the gynaecologist refused to perform it. There was no procedure through which she could appeal this decision and she gave birth to a child in November 2000. Her eyesight deteriorated further following the delivery. She now cannot see objects more than 1.5 metres away, risks becoming completely blind, and requires daily assistance.

Concluding that Poland had violated her right to respect for private life and noting the severe distress and anguish caused to her, the Court ordered Poland to pay a substantial sum in pecuniary damages.

Despite being hailed as a victory for women across Europe and a blow to the deeply conservative government in Warsaw, the European Court of Human Rights ruling that Poland was failing to guarantee access to lawful abortions did not affect Poland’s strict abortion laws, which some  politicians want to make even stricter.

Points:

  • Important result but didn’t go as far as we would have liked
  • Need a batch of cases

 

Abdulaziz, Cabales and Balkandali v. the United Kingdom

In accordance with the immigration rules in force at the time, the applicants’ husbands were refused permission to remain with or join them in the United Kingdom, where they were lawfully and permanently settled. The applicants, of Indian, Philippine and Egyptian origin respectively, alleged on that account that they had been victims of a practice of discrimination on the grounds of sex and race.

The Court found a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 as a result of discrimination on the ground of sex (difference in treatment between male and female immigrants as regards permission for their non-national spouse to enter or remain in the country) but not on the ground of race.

Points:

  • Government subsequently equalised downwards
  • Sex discrimination so important that the case was worthwhile (or not)

 

Gegidze v Georgia

INTERIGHTS brought a case before the ECtHR in March 2007 on behalf of a Georgian mother, her son and daughter, who were victims of recurring, escalating domestic violence.  During the ongoing psychological and physical abuse the mother filed police complaints with the police and appealed six times each of the authorities’ decisions not to press charges or open investigations. The victims’ own application to the ECtHR did not claim discrimination under article 14 but, instead, violations of the prohibition on torture, right to privacy and family life, and right to remedy. Without listing reasons, the ECtHR dismissed the application against Georgia as ‘manifestly ill founded.’

Despite the vast progress at international level regarding the elimination of violence against women, the European Court of Human Rights was much slower in its response to these violations. In June 2008, in Bevacqua and S. v. Bulgaria, the applicant had been repeatedly physically assaulted by her husband.  Nevertheless, authorities had denied her pleas for criminal prosecution. The ECtHR specifically condemned the Government’s designating the husband’s abuse as only a ‘private matter.’  Then, in a monumental decision in Opuz v. Turkey in early June 2009, the ECtHR first recognized domestic violence as a means of sex-discrimination.  As evidenced, pursuing social justice is often a slow process that does not always follow a direct, straightforward path, but norms surrounding domestic violence have substantially progressed.

 

Our case was then taken to the UN’s CEDAW.  The Committee’s admissibility decision in Gegidze v. Georgia was a welcome recognition that incidents of domestic violence require proper and rigorous scrutiny by international bodies.  Full opinion awaited.

Like most campaigns to right long-standing discriminatory practices, establishing intolerance for domestic violence and effective government responses requires patience and varied approaches. Most international human rights conventions do not explicitly prohibit violence against women, including the Convention on the Elimination of Discrimination against Women (CEDAW). CEDAW instructs States to not discriminate but does not expressly address issues that primarily or only affect women, such as forced abortions or domestic violence. Initially, violence against women was not perceived as a consistent phenomenon.  Instead, most governments viewed family violence as a ‘private matter;’ thus, complaints fell within various government agencies, yielding scattered and haphazard responses.

Points:

  • Consideration of venue and the tribunal
  • Tendency of lawyers and campaigners to be impatient and to want the law to develop more quickly than it actually does

North v Dumfries and Galloway Council (UK)

More than six years after 251 women raised their claims for equal pay against the Council, the Supreme Court has upheld their right to compare their terms and conditions with men who are also employed by the Council but work in or from different workplaces.  The judgment over 2,000 women sharing an estimated £12 million in compensation from 23 Scottish councils and 3 in England.

Women employed as either classroom assistants, learning support assistants or nursery nurses.  Between 2006 and 2007 they raised equal value pay claims comparing their work with that of refuse workers, grounds men and refuse drivers who, unlike the claimants, were all entitled to bonus or supplementary payments.  The Council argued that the claims should be dismissed because the claimants and their chosen male comparators were not in ‘the same employment’. Bringing a well-founded equal pay claim requires the identification of an individual, or group of individuals, of the opposite sex who are in the same employment and doing either like work, work rated as equivalent or work of equal value.

The Council appealed successfully to the Employment Appeals Tribunal (EAT) on the basis that the tribunal had asked the wrong question and it should have asked whether the claimants had shown that there was a ‘real possibility’ that their comparators could be employed at the same establishment doing the same or a broadly similar job to the one that they undertook at their own establishment. The claimants then appealed to the Court of Session.

Mrs North and her colleagues appealed to the Supreme Court.  Their appeal was upheld unanimously and the decision of the employment tribunal was restored. In particular, the judgment confirmed that the employment judge had asked the right question and was entitled to answer it in the way she did.

For the Commission, the case raised important points of law and the main focus of our intervention was the extent to which EU and domestic law allows women to compare their work with that of men undertaking work of equal value who, although employed by the same employer, do not and would never work at the same location as the women.

Points:

  • Time for case to be resolved (continuity and determination)
  • Number of appeals
  • Intervention
  • Logistics (easier as an third party intervener)

 

 

DISABILITY

Coleman v Attridge

Sharon Coleman’s son Oliver was born with a rare condition affecting his breathing and also has a hearing impairment. Ms Coleman brought a case claiming she was forced to resign from her job as a legal secretary after, she claims, being harassed by her employers and being refused flexible working which other employees were granted.  Ms Coleman’s case is that she was targeted because she has a child with a disability, and was denied flexible work arrangements offered to her colleagues without disabled children.

This case relied on European law (European Employment Framework Directive), the Employment Tribunal asked the European Court of Justice (ECJ) to determine whether the Directive protects employees who are treated less favourably or harassed because of their association with a disabled person. In July 2008, the ECJ ruled that disability discrimination by association is unlawful in the workplace.

Ms Coleman’s victory before the European Court of Justice has ensured that the UK’s disability discrimination law provides protection on the grounds of someone’s association (including caring responsibilities) with a disabled person.

Next steps: the UK Parliament included “associative” discrimination in The Equality Act 2010.

 

Points:

  • Quality of claimant
  • Importance of principle
  • Value to claimant
  • Funding
  • Stronger EU law

Stott v Thomas Cook

 

The case had attracted significant interest domestically and internationally, with the claimant supported by the Equality and Human Rights Commission, and the Secretary of State for Transport intervening on his behalf.

During a journey from Greece, to East Midlands Airport in the UK in 2009, the claimant Mr Stott, who is paralysed and permanently dependent on a wheelchair, suffered from a breach of his rights.

Soon after making the fight booking on the internet he telephoned the airline’s helpline to advise that he had booked and paid to be seated next to his wife on both flights. He called the helpline again on 19 September and was assured that he and his wife would be seated together. But sadly the return journey they did not. Mr and Mrs Stott encountered many difficulties at the airport in Zante. At check-in they were told they would not be seated together. In response to their protestations the supervisor eventually told them that their problem would be sorted out at the departure gate. When they arrived at the departure gate their expectations were unfulfilled. They were told that other passengers had already boarded and the seat allocations could not be changed. When boarding the aircraft from an ambulift, matters got much worse. As he entered the aircraft, Mr Stott’s wheelchair overturned and he fell to the cabin floor. Those present appeared not to know how to deal with the situation. Mr Stott felt extremely embarrassed, humiliated and angry and his wife, who had recently suffered serious ill-health herself, was also very distressed at the chaotic scenes. Eventually Mr Stott was assisted into his aisle seat in the front row and his wife was seated behind him. This arrangement caused them considerable difficulties in that it was difficult for Mrs Stott to assist her husband with his catheterisation, catheter bags, food and movement during the three hour twenty minute flight. The defendant’s cabin crew apparently made no attempt to ease their difficulties. They made no requests of other passengers to enable Mr and Mrs Stott to sit together. From time to time during the flight she had to kneel or crouch in the aisle to attend to her husband’s personal needs and inevitably she obstructed the cabin crew and other passengers as they made their way up and down the aisle. It was, therefore, a very unhappy experience.

The trial judge assessed compensation at £2,500 but saw himself unable to make such an award due to the exclusive application of the Montreal Convention of 1999. Thomas Cook had relied on that international convention’s uniform rules governing liability under the contract of carriage by air, suggesting that it was a well-established principle in domestic, European Union and international law and that passengers could therefore not seek redress under domestic law.

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention […]

 

The Urgent Need for International Reform

The unfairness of the present position ought to be addressed by the parties to the Convention. Small comfort though it may be to them, both Mr and Mrs Stott, with the support not only of the Equality and Human Rights Commission but also of the responsible department of the United Kingdom government, have done us all a service by exposing a grave injustice to which the international community should now be turning its attention.

Points:

  • No downside to taking case because airlines were all resisting the cases: no precedent setback
  • Nevertheless a failure
  • Appeal level cases create possibilities fo reform
  • Very good facts

 

 

 

Dordevic v Croatia

 

The victims in this case were mother and son, two Croatian nationals of Serbian ethnicity, living together in social housing. The son was born in 1977 and suffered from a combination of physical and intellectual impairments. As a result, his physical abilities were severely impaired: his eyesight was poor, his spine was painful, he suffered from severe foot deformation and he needed assistance to perform basic tasks. He had been deprived of his legal capacity and placed under his mother’s plenary guardianship. Since 2006 the applicants had suffered ongoing abuse and harassment from a group of children and youths who lived in their neighbourhood and attended the same school. Most harassment had consisted of relatively low-level anti-social behaviour, including name-calling, spitting, lewd comments, and yelling, insulting drawings on the pavement in front of the applicants’ flat and causing damage to the applicants’ balcony, windows and door. The harassment mostly occurred at the same time of the day, sometimes even daily – in the afternoon when children returned from school, in the evening, when they congregated around a bench situated in front of the applicants’ ground floor flat and sometimes even during the night. The harassment had been occasioned by a combination of factors, including his disability, both applicants’ ethnicity and their marginal social status.

Since 2009 the harassment has occasionally escalated into more serious acts of physical violence against him, which occurred while he was walking outside by himself. At different times, his hands were burnt with cigarettes, his head had been banged against a wall, he was pushed against a fence and fell down becoming unconscious and he was hit with a ball in the face. The gravity of these incidents was significantly enhanced by his peculiar physical impairments.

The applicants had been complaining about their plight since at least July 2008, asking the authorities on numerous occasions to identify and punish the perpetrators and to prevent further harassment. A wide range of authorities theoretically duty bound to support the applicants had become aware of the situation, including the police, the Public Prosecutor, the Disability Ombudsman, the local school, the local Centre for Social Welfare and the Municipality. However, the harassment continued unabated and even intensified at times.

On 24 July 2012, the European Court of Human Rights published its judgment finding violations on the prohibition of inhuman and degrading treatment, the right to private and family life and the right to an effective remedy on account of the authorities’ failure to act effectively in order to end the abuse.

In their judgment informed by the CRPD and selected Council of Europe standards in the area of disability that these incidents taken together were serious enough as to engage the State’s responsibility concerning the prohibition of inhuman and degrading treatment. The Court stressed that the State failed in its duty to “address acts of violence and harassment which had already occurred”, “take sufficient steps to ascertain the extent of the problem” and “prevent further abuse from taking place”. The Court chastised the authorities for the lack of a systematic approach, for the failure to adopt any mechanisms to monitor the events, for the absence of any meaningful social services involvement and of any assistance from relevant experts who could have worked with the perpetrators, and the absence of any specialised counselling.

Campeanu v Romania and Malacu v Romania

This case concerns five patients who died at the Poiana Mare Psychiatric Hospital. The hospital has a sad reputation for its record of human rights abuses perpetrated against its residents. Over the two years 2002-2003, 155 patients died at the hospital, with a further 28 people dying during the first five months of 2004, with many of these deaths taking place during winter time. The applicants are four women and a man who suffered from various mental health problems and spent long periods, in some cases their whole lives, in social care institutions.  The applicants died from a combination of poor care and inadequate treatment, as well as extremely substandard living conditions, including insufficient food and heating.

This case raises issues of access to justice for people with disabilities as well as shedding light on the failure of authorities to prevent the numerous abuses perpetrated against people with disabilities inside social care institutions and psychiatric hospitals.  The case paints a comprehensive picture of the range of unchecked abuses taking place in social care institutions, as well as the entrenched discrimination towards people with disabilities by those in authority, including medical professionals and other hospital staff, their own communities, and the wider public. Perpetrators of these abuses are very rarely prosecuted despite the existence of laws meant to protect vulnerable people with mental and physical disabilities.

The Court found that, in the exceptional circumstances of the case, and bearing in mind the serious nature of the allegations, it was open to the NGO to act as a representative of Mr Câmpeanu, even though the organisation was not itself a victim of the alleged violations of the Convention.  The Court found in particular: that Mr Câmpeanu had been placed in medical institutions which were not equipped to provide adequate care for his condition; that he had been transferred from one unit to another without proper diagnosis; and, that the authorities had failed to ensure his appropriate treatment with antiretroviral medication. The authorities, aware of the difficult situation – lack of personnel, insufficient food and lack of heating – in the psychiatric hospital where he had been placed, had unreasonably put his life in danger. Furthermore, there had been no effective investigation into the circumstances of his death. Finding that the violations of the Convention in Mr Câmpeanu’s case reflected a wider problem, the Court recommended Romania to take the necessary general measures to ensure that mentally disabled persons in a comparable situation were provided with independent representation enabling them to have complaints relating to their health and treatment examined before an independent body.

 

 

 

 

RELIGION

 

Eweida and Chaplin and others

The claimants were both prevented by their employers’ dress codes from wearing a visible cross/crucifix when in uniform at work. The majority of the European Court of Human Rights decided that their religious rights at work needed to be balanced against other considerations. In the case of Eweida, an airline check-in officer, they found that her Article 9 right to manifest her belief was unjustifiably breached. In the national courts too much weight to the employer’s legitimate need to project a corporate image and not enough weight to the employee’s right to wear a visible cross, which did not adversely affect that corporate image. In the case of Chaplin, a nurse, the Court unanimously concluded that the health and safety of staff and patients outweighed the right of the employee to wear a visible crucifix on a chain around her neck. The employer’s decision interfered with her Article 9 rights, but it was justifiable on health and safety grounds.

Ladele and McFarlane both objected, due to their religious beliefs about marriage and sexual relationships, to carrying out certain work duties in respect of same-sex couples. The European Court of Human Rights found against both of them. In Ladele, a registrar who refused to perform civil partnerships and was ultimately dismissed, the majority of the Court found that the employer’s application of the corporate ‘equality and dignity’ policy to refuse to exempt an employee from particular duties, was within the range of permissible choices available to the employer, and the domestic courts had not exceeded the wide discretion given to them when determining this case which involved striking a balance between competing Convention rights. In reaching that conclusion, the majority of the Court did not accept the employee’s argument that the employer should have accommodated her conscientious objection.

In McFarlane, a counsellor who refused to offer psycho-sexual therapy to same-sex couples contrary to his employer’s non-discrimination policy and was dismissed, the Court unanimously decided that a fair balance was struck between the competing interests at stake. The most important factor for the Court was that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. Accordingly, although the Court recognised that the loss of a job was a severe sanction with grave consequences, it concluded the State had not exceeded the wide discretion it enjoys to determine the right balance between manifesting religious belief and protecting the rights of others.

Until recently, the European Court of Human Rights tended to take the view that a practice was protected under Article 9 only if it was required by the particular religion or belief. The new judgment confirms that a practice or manifestation motivated, influenced or inspired by religion or belief, and which is sufficiently linked to the religion or belief will be protected, regardless of whether it is a mandatory requirement of the religion or belief.

Both Eweida and Chaplin could show their wish to wear a cross/crucifix visibly at work was genuine and motivated by a desire to bear witness to their Christian faith although neither claimed that it was a requirement of their religion. The Court considered that this behaviour was a manifestation of religious belief, attracting the protection of Article 9. It should now be easier for individuals to establish Article 9 rights to manifest religion or belief, placing greater focus on the next stage of the decision-making process, which is to assess whether any interference with such rights is justifiable. In the past, employees in similar situations to Eweida, Chaplin, Ladele and McFarlane may have been expected to resign and look for other jobs if they wished to observe their religion or belief in the workplace. There have been legal cases in the past where an individual’s right to manifest their religion or belief has been limited on this basis.

The European Court of Human Rights concluded that this approach could not be followed rigidly. The new judgment means that the courts cannot simply dismiss a case because of the possibility of changing jobs to other employment that allows the religious observance. Instead, this possibility should be a relevant factor, to be weighed amongst others, when considering whether or not the restriction is proportionate. The judgment means that courts will now give more attention to deciding whether restrictions on religious rights in the workplace are appropriate and necessary.

Points:

  • Interesting “conflict of rights” case

 

SEXUAL ORIENTATION

Preddy v Bull

 

Discriminating on the grounds of sexual orientation in the UK.

The Bulls, who refused to honour a gay couple’s booking of a double bedroom. Gay partners were turned away from the hotel because the owners said that due to their religious beliefs they did not allow unmarried couples to share double rooms. They did not recognise the couple’s civil partnership as being equivalent to marriage. The Equality Human Rights Commission (the equality body and National Human Rights Institution) supported the case to bring a claim to the Court for discrimination.  Mr and Mrs Bull subsequently appealed against that decision to the Court of Appeal, but lost that appeal. The Bulls, who were backed by the Christian Institute, made a further appeal to the Supreme Court arguing that equality law interfered with their right to live according to their religious beliefs under the European Convention on Human Rights. The Supreme Court ruled that the Bulls’ religious beliefs did not entitle them to discriminate against civil partners.  The Court confirmed that, although there is a fundamental right of citizens to practice their religion, it can be limited where necessary to protect the rights of others.

The Court dismissed the Bulls’ appeal, saying: ‘Parliament has created the institution of civil partnership in order that same sex partners can enjoy the same legal rights as partners of the opposite sex. They are also worthy of the same respect and esteem.’

As the Supreme Court noted; ‘if Mr Preddy and Mr Hall were hotel keepers who had refused a room to Mr and Mrs Bull, because they were Christians (or even because they were an opposite sex couple), the Commission would have been just as ready to support Mr and Mrs Bull in their claim. Each of these parties has the same right to be protected against discrimination by the other.’

Points:

  • Long running political conflict between religious groups and the lesbian and gay campaigns
  • Clash of rights: equality v religious freedom
  • Key issue: commercial relationship

 

Duncan Lustig-Prean and John Beckett v UK

 

With Jeanette Smith and Graeme Grady, all British nationals were members of the United Kingdom armed forces, are homosexual. The Ministry of Defence applied a policy which excludes homosexuals from the armed forces. The applicants were each the subject of an investigation by the service police concerning their homosexuality, all admitted their homosexuality and were discharged on the ground of their sexual orientation, in accordance with Ministry of Defence policy.

The Court considered the investigations, and in particular the interviews of the applicants, to have been exceptionally intrusive, it noted that the administrative discharges had a profound effect on the applicants’ careers and prospects and considered the absolute and general character of the policy, which admitted of no exception, to be striking. It therefore considered that the investigations conducted into the applicants’ sexual orientation together with their discharge from the armed forces constituted especially grave interferences with their private lives.

The Court noted that the Government’s core argument was that the presence of homosexuals in the armed forces would have a substantial and negative effect on morale and, consequently, on the fighting power and operational effectiveness of the armed forces. It was noted that the Ministry of Defence policy was not based on a particular moral standpoint and the physical capability, courage, dependability and skills of homosexual personnel were not in question. Insofar as those negative views represented a predisposed bias on the part of heterosexuals, the Court considered that those negative attitudes could not, of themselves, justify the interferences in question any more than similar negative attitudes towards those of a different race, origin or colour.

The Court considered that it could not ignore widespread and consistently developing views or the legal changes in the domestic laws of Contracting States in favour of the admission of homosexuals into the armed forces of those States. Accordingly, convincing and weighty reasons had not been offered by the Government to justify the discharge of the applicants.

 

Points:

  • Unusual success, courts reluctant to interfere with armed services

 

Kaos v Turkey

This case concerns the confiscation of the whole print-run of an issue of the flagship publication produced and distributed by a LGBT NGO, from a printing house in 2006. In addition to the seizure, the Turkish authorities initiated criminal proceedings against the head of the NGO and editor of the publication, proceedings which are still pending before domestic courts. The confiscated issue of the magazine had a thematic focus on pornography and the role it plays in the lives of LGBT people. It included articles by writers, academics, feminists, painters and photographers, as well two photos of paintings by a well-known Turkish painter, which the authorities described as obscene. The authorities sought to justify the restrictions against the applicant’s freedom of speech on the basis of the ban on obscene publications in the Turkish Criminal Code. The applicants argue before the Court that their rights under Article 10 (freedom of speech) and 14 (prohibition of discrimination) of the European Convention on Human Rights have been breached.

INTERIGHTS acts in this case as advisor to the applicant’s counsel, Istanbul-based lawyer Oya Aydin.  The impacts which this case will could offer essential development to the current discussion with regard to the religious debate and the notion of “public morality” within Europe. Judgment awaited.

TRANSGENDER

 

Goodwin v UK

 

The applicant complained of the lack of legal recognition of her changed gender and in particular of her treatment in terms of employment and her social security and pension rights and of her inability to marry. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, owing to a clear and continuing international trend towards increased social acceptance of transsexuals and towards legal recognition of the new sexual identity of post-operative transsexuals. “Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reaches the conclusion that the notion of fair balance inherent in the Convention now tilts decisively in favour of the applicant”.

The Court also held that there had been a violation of Article 12 (right to marry and found a family) of the Convention. It was “not persuaded that it [could] still be assumed that [the terms of Article 12] must refer to a determination of gender by purely biological criteria”. The Court held that it was for the State to determine the conditions and formalities of transsexual marriages but that it “finds no justification for barring the transsexual from enjoying the right to marry under any circumstances”

Points:

  • Previous cases Cossey v UK; Sheffield v UK; B v France, X; Y, Z v UK. Diligence
  • Development of beginning of some consensus across Council of Europe member states

 

H v Finland

In this case the applicant was a male-to-female transsexual, who had married prior to gender reassignment, and had a child with a woman. After gender reassignment in 2009, the applicant changed her first name and other important personal documents such as driver’s licence and passport. But when the applicant attempted to change her identity number in the population register, she was unable to do so because of the national law which provides that a person’s gender can be changed in the population register only if he or she “is not married or in a civil partnership” or, if the person to who they are partnered or married provides their consent. When any belonging to the opposite gender is confirmed, a marriage is turned into a civil partnership and a civil partnership into a marriage.

This reflects that, under Finnish law, marriage is reserved for opposite-sex couples and civil partnerships for same-sex couples. Her wife refused to provide the required consent to transform their marriage into a civil partnership on the grounds that the couple both wished to remain married, that the dissolution of their marriage would be contrary to their religious convictions and that a civil partnership provided both them and their child with fewer legal rights. The Chamber decision and the Grand chamber decision of the European Court further argued that in essence the problem in the present case is caused by the fact that Finnish law does not allow same-sex marriages. The Court deemed it could not be said that the applicant has been discriminated against vis-à-vis other persons when not being able to obtain a female identity number, even assuming that she could be considered to be in a similar position to them and in conclusion, the Court found no violation of the Convention.

Points:

  • Clash with issue of right to gay marriage
  • Wrong time to take the case?

 

 

NATIONALITY AND ETHNIC ORIGIN

A and Others v UK

Following the al’Qaeda attacks of 11 September 2001 on the United States of America, the British Government considered that the United Kingdom was a particular target for terrorist attacks, such as to give rise to a “public emergency threatening the life of the nation” (Article 15). The Government believed that the threat came principally from a number of foreign nationals present in the United Kingdom, who were providing a support network for extremist Islamist terrorist operations linked to al’Qaeda. These individuals could not be deported because there was a risk that each would be ill-treated in his country of origin in breach of Article 3 of the Convention. The Government considered that it was necessary to create an extended power permitting the detention of foreign nationals. Since the Government considered that this detention scheme might not be consistent with Article 5(1) of the Convention (right to liberty). 16 individuals, including the 11 applicants, were certified and detained. They were initially detained at Belmarsh Prison in London.

The applicants also brought proceedings in which they challenged the fundamental legality of the November 2001 derogation. These proceedings were eventually determined by the House of Lords which held that there was an emergency threatening the life of the nation but that the detention scheme did not rationally address the threat to security and was therefore disproportionate. The House of Lords found, in particular, that there was evidence that United Kingdom nationals were also involved in terrorist networks linked to al’Qaeda and that the detention scheme discriminated unjustifiably against foreign nationals.

The choice by the Government and Parliament of an immigration measure to address what had essentially been a security issue had resulted in a failure adequately to address the problem, while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists. There was no significant difference in the potential adverse impact of detention without charge on a national or on a non-national who in practice could not leave the country because of fear of torture abroad.

The Government had argued before the Court that it had been legitimate to confine the detention scheme to non-nationals, to take into account the sensitivities of the British Muslim population in order to reduce the chances of recruitment among them by extremists. However, the Government had not provided the Court with any evidence to suggest that British Muslims had been significantly more likely to react negatively to the detention without charge of national rather than foreign Muslims reasonably suspected of links to al’Qaeda.

In conclusion, therefore, the Court, like the House of Lords, found that the derogating measures had been disproportionate in that they had discriminated unjustifiably between nationals and non-nationals. It followed that there had been a violation of Article 5 § 1 in respect of all but the Moroccan and French applicants.

Points:

  • Arguing for greater security powers

 

Catan and 27 Others v Moldova and Russia

The applicants in this case are a group of Moldovan nationals – children of school-going age, their parents and teachers – who suffered serious human rights violations in Transdniestria, part of the territory of the Moldovan state and under the de facto control of the Russian-supported local administration known as the Moldovan Republic of Transdniestria (MRT). The MRT administration introduced a law in 1994 banning and criminalising the use of Latin script in schools in Transdniestria and imposing a requirement that the Moldovan language be written in the Cyrillic script, a linguistic anomaly of no practical use. Following the introduction of this law a number of schools were opened in order to teach children of Moldovan ethnicity using the Latin script, in defiance of the MRT’s attempts to further isolate the Moldovan community in Transdniestria. As a result of sending their children to these schools, the parent applicants were subjected to detention, harassment and threats, while the children and teacher applicants had to suffer the storming and forced closure of their schools as well as intimidation and harassment. The applicants were also subjected to discrimination by the MRT authorities.

The majority of these events occurred between 2002 and 2004. A number of parents and teachers were arrested and sentenced to terms of imprisonment. Parents were threatened with loss of their jobs and removal of their parental rights if they failed to send their children to schools registered with the MRT.

The Grand Chamber issued its judgment on 19 October 2012, finding that the historical background to this case had a significant bearing on the question of Russian jurisdiction. The Court referred to its findings in previous cases that Russia had, through its military, political and economic assistance to the local administration, established and maintained the MRT. It found that because Russia did not offer any evidence to rebut the findings in the Ilascu judgment that during 2002 to 2004 Russia had jurisdiction over Transdniestria, the applicants therefore came within the jurisdiction of Russia. The Court then considered the question of state responsibility, finding, by 16 votes to 1, that Russia was responsible for the violations of the applicants’ right to education because it exercised effective control over the MRT at the time of these incidents.

The Court also found that Moldova had jurisdiction over the applicants during the relevant period as the MRT is part of Moldovan national territory and therefore, in accordance with public international law, it was obliged to use all legal and diplomatic means available to it to guarantee the rights of the applicants.

Points:

 

  • The Court would not tolerate the existence of any ‘legal black holes’ in the territory of the Council of Europe. The Court held to account the failure by Russia to respect and ensure the Convention rights of the applicants in accordance with the well-established principle that there should be no legal vacuum within the Council of Europe and no gap in protection of rights under the Convention.
  • the Court recognised the fundamental importance of primary and secondary education “for each child’s personal development and future success” and reiterated that any attempt to interfere with that right must pursue a legitimate aim.

Cazacliu v Romania

The case was brought by 75 Romanian nationals of Roma origin living in the town of Tulcea in Romania. In October 2006, the applicants, including around 30 children and young people, were evicted from a building in which they had been living for many years. The majority of the applicants were relocated by local authorities to a former army barracks building, disused since the 1970s, located approximately four kilometres outside Tulcea in a heavily industrialised area.

Between 2007 and 2008, the bus routes connecting the relocation site to the town were cancelled, which prevented the children and young people from attending school. This led to them being either expelled or abandoning school.

In 2009 the applicants complained to the European Court of Human Rights arguing that: the circumstances of their eviction and subsequent relocation amounted to a violation of their rights

INTERIGHTS intervened in the case with a third-party intervention focusing on the adverse impact of evictions and state housing relocations on the accessibility component of the right to education. In particular, INTERIGHTS highlighted the negative obligation on States not to interfere with the right to education as well as the positive obligation on States to prevent, identify and correct interferences with the right to education, taking into account the particular vulnerability of children and young persons. Drawing on international and comparative law, this positive obligation on States can – depending on the circumstances – extend to, among others, financial support for fees and other associated costs such as transport assistance, and risk assessments and special temporary measures in the context of potential denials of the right to education. The submission also highlighted the importance of judicial protection against breaches of the right to education.  Judgment awaited.

CONCLUSION

 

Substantive Difficulties in Strategic Litigation

For human rights organisations, and more specifically, the few organisations which undertake strategic litigation in human rights, there are often challenges encountered within the vast and diverse work, largely surrounding illustrating, without set rigid indicators, the impact which these cases have, within key areas and further within their geographical remit.

Proving effectiveness in the impact of strategic litigation, even with case-victories, offers a challenge to these few organisations.

Administrative Difficulties in Strategic Litigation

Other challenges in litigation are related more to the persistent jurisdictional deficits in process, administration and staffing. These institutional issues could offer significant detraction from the success or the impact of each case

Selecting cases

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