All posts by John Wadham

Associate, Doughty Street Chambers Chair of the UK's National Preventative Mechanism Member of the Human Rights Committee of the Law Society Visiting Fellow, Bristol University Visiting Senior Research Fellow, Kings College, London Recent projects include: • ILGA Europe (International Lesbian, Gay, Bisexual, Trans and Intersex Association): leading a strategic litigation workshop on the ECtHR in Eastern Europe • NGOs and human rights charities (Thomas Paine Initiative – UK): legal, political and strategic advice on the likely consequences for the Human Rights Act and the UK’s involvement in the European Convention of Human Rights given the proposals of the political parties (and Conservative Government) • Human Rights Implementation Project, University of Bristol: drafting interventions and amicus in cases before the African Court and Commission of Human and Peoples’ Rights • Commonwealth Secretariat: institutional needs assessment of the Seychelles National Human Rights Commission (NHRC) and the Ombudsman Council of Europe projects • Albania: Enhancing the effectiveness of the Albanian system of human rights protection and anti-discrimination • Armenia: Strengthening the capacity of lawyers and human rights defenders for domestic application of the European Convention on Human Rights and of the Revised European Social Charter: Discrimination, Article 3 and 14 • Azerbaijan: Strengthening the capacity of lawyers and human rights defenders for domestic application of the European Convention on Human Rights and of the Revised European Social Charter: Liberty and Arbitrary detention, Article 5 of the ECHR • Georgia: Strengthening the capacity of lawyers and human rights defenders for domestic application of the European Convention on Human Rights and of the Revised European Social Charter: Gender discrimination and violence • HELP platform on Pre-Trial Investigations (with Ukrainian experts): Co-ordinator, international experts • HELP platform on Article 5 (with experts from Azerbaijan): Co-ordinator, international experts • Macedonia: CoE legal assessment upon recent statutory amendments of the Law on the Police • Moldova: The Moldovan Constitutional Court: Protection of personal data through the right to respect for private and family life • Moldova: Hate speech, Discrimination and Freedom of Opinion and Expression • Moldova: Strengthening the capacity of lawyers and human rights defenders for domestic application of the European Convention on Human Rights and of the Revised European Social Charter • Sexual Orientation and Gender Identity: panel expert for CoE • Ukraine: “Effective Investigations Through Cooperation” organised by General Prosecutor Office of Ukraine with CoE; paper “Investigations: The challenges and human rights standards” and moderator • Ukraine: expert for Council of Europe opinion on the law to establish “The Special Bureau of Investigation” • Ukraine: Training on Basic Principles and Concepts of Article 6 of the ECHR in Criminal Proceedings

CRPD Art 33.1: what it means (in Georgia)

 

 

 

This publication has been produced with the assistance of the European Union and United Nations Development Programme. Its contents are the sole responsibility of the Expert and can in no way be taken to reflect the views of the European Union and/or United Nations Development Programme.
 

John Wadham

 


 

Contents

List of abbreviations. 2

Introduction. 3

Legal Framework: 4

Article 33 of CRPD.. 4

General 5

Recommendations and guidance on implementation of Article 33.1. 5

Summary of General Recommendations. 7

The existing Coordination Council on Rights of Persons with Disabilities (“the Council”) as the Article 33.1 mechanism… 8

Recommendations on implementation of article 33.1 of CRPD.. 10

Option One. 11

Option two. 15

Summary of differences between Option One and Option Two. 19

 

 

 

 

 

 

 

 

 

List of abbreviations

CRPD Convention on the Rights or Person with Disabilities
DPO Disabled People’s Organisation
NGO Non-Governmental Organisation
NHRSAP National Human Rights Strategy Action Plan
PDO Public Defender of Georgia
IACHR Inter-Agency Council for NHRSAP
EU European Union
UNDP United Nations Development Programme
   
   
   
   

 

 

 

 

Introduction

The project “EU/UN Human Rights for All” is a joint initiative of four UN agencies – United Nations Development Programme (UNDP), United Nations Children Fund (UNICEF), Office of High Commissionaire on Human Rights (OHCHR) and International Labour Organization (ILO) with UNDP. The project is funded by the European Union based on the Financing Agreement on “Human Rights for All ” signed between Georgia and the European Union in May 2015 and seeks to strengthen human rights protection in areas prioritized by EU-Georgia agreements, including the rights of minorities and vulnerable groups, internal and external oversight of law enforcement, labour rights, protection of privacy, freedom of expression and information. [1]

The project supports the implementation and monitoring of the National Human Rights Strategy and Action Plan in selected areas prioritized by the EU-Georgia agreements and to enhance capacities of government institutions and Parliamentary Committees on Human Rights and Civil Integration and on Legal Issues and improve mechanisms for better protection of human rights in Georgia.

The objective is to enhance capacity to promote more effective government institutions, mechanisms and Parliamentary Committees (on Human Rights and Civil Integration and on Legal Issues) in implementing the National Human Rights Strategy (NHRS) and its Action Plan (AP), in areas prioritised by the EU-Georgia agreements.

One of the objectives of the project is to provide support to the implementation of the National Human Rights Strategy Action Plan (NHRSAP) to the Inter-Agency Council for NHRSAP (IACHR) and its Secretariat. Objective 19.1.2 of 2016-2017 NHRSAP provides: “[d]eveloping effective mechanisms of implementation and coordination of the Convention on the Rights of Persons with Disabilities (CRPD)”.

In 2014 Georgia ratified UN Convention on the Rights of Persons with Disabilities (CRPD). The Government of Georgia designated Coordination Council on Rights of Persons with Disabilities (the Council) as body responsible for implementation of CRPD under article 33.1 of the Convention.

The Council was established in 2009 based on the “Concept on Integration of Persons with Disabilities”. The Council is responsible for coordination of implementation of 2014-2016 Action Plan on Ensuring Equal Opportunities for Persons with Disabilities. The National Human Rights Secretariat serves as the secretariat for this Council.

However, because the Council was initially established as a coordination body for the implementation of the Concept on Integration of Persons with Disabilities and was not reviewed, reorganized or reformed after the ratification of CRPD its appropriateness as the “focal point” responsible for implementation and co-ordination mechanism for the purposes of article 33.1 of CRPD needs to be reconsidered. Both the Government of Georgia and civil society organisations agree with this assessment.

To support the Government of Georgia in setting up efficient national mechanisms for the implementation and monitoring of CRPD the EU-UN JP initiated to develop recommendations with a purpose to Develop recommendations for the reorganization of the Coordination Council on Rights of Persons with Disabilities to comply with the requirements of article 33.1 of CRPD.

Legal Framework: Article 33 of CRPD

Article 33 of CRPD “National implementation and monitoring” provides:

  1. States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels.
  2. States Parties shall… maintain, strengthen, designate or establish within the State Party… one or more independent mechanisms… to promote, protect and monitor implementation of the present Convention…
  3. Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process. [2]

In addition, article 4.3 of CRPD provides that:

In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.

General Recommendations and guidance on implementation of Article 33.1

From Exclusion to Equality: Realizing the rights
of persons with disabilities. Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol, OHCHR:

Focal points could be a section or a person within a ministry or cluster of ministries, an institution, such as a disability commission, or a particular ministry, such as a ministry for human rights or a ministry for persons with disabilities, or
a combination of the three. Even if these bodies or mechanisms already exist, they will need to be revised to oversee the implementation of the Convention and to coordinate efforts among various sectors at the local, regional and national/federal level.

Whatever its designated form, the focal point should not act in isolation, but play a leading role in coordinating the implementation of the Convention. It should be equipped with adequate human and financial resources; be established through legislative, administrative or other legal measures; be permanently appointed; and be located at the highest possible level of government.[3]

Study on the Implementation of Article 33 of the UN Convention on the Rights of Persons with Disabilities in Europe, OHCHR:

Focal points are an issue of internal public administration. The purpose is to appoint a governmental department for handling matters relating to the implementation of CRPD. The focal points should both have the necessary resources to carry out their function and be sufficiently accessible to persons with disabilities. States may also designate several focal points or sub-focal points.

Coordination mechanisms aim to boost cooperation between ministries and to avoid that policymakers adopt isolated measures. The establishment or designation of a coordination mechanism, however, is not a legal obligation. It is optional.

In all EU member States Parties to CRPD, the focal points are the ministries responsible for persons with disabilities. These ministries are almost always either the ministries of social affairs or ministries with broader competences including that of social affairs. This is no surprise. The designation of ministries responsible for persons with disabilities will most often simply confirm existing responsibilities, while adding a human rights perspective to their mandate. In other words, the major change is that these ministries will now have to focus on CRPD. Since almost all the focal points have been designated and since they have already started their activities, it will be possible to evaluate the impact of this practice within the coming years. [4]

Mental Disability Advocacy Centre (MDAC):

In order to assist in Article 33(1) implementation, MDAC has developed the following list of functions of the focal point(s):

  • Serve as the CRPD contact point for government and civil society;
  • Spearhead the CRPD and its values across and throughout government;
  • Ensure coordination within government;
  • Secure civil society involvement;
  • Conduct a baseline analysis at the time of CRPD ratification;
  • Publish a national CRPD implementation plan;
  • Collate data and statistics; and
  • Liaise with domestic and international human rights mechanisms.[5]

International Disability Alliance advises that the focal point be “located at the highest level of the Executive.”[6]

The CRPD as an Engine of Domestic Law Reform, Prof. Gerard Quinn:

Article 33.1 is unusual in that it actually specifies how the domestic implementation process is to move forward. While affording a certain margin of appreciation that is to be expected in order to respect diversity with respect to modes of governance, it does specifically oblige States Parties to designate ‘one or more focal points’ within government for implementation.

This is an obvious corrective to the tendency of all systems to place disability issues in a wide range of Government Department with no coordinating mechanism. The predictable result has been vagueness, conflicts, and gaps in policy.

It bears emphasising that the reference to ‘one or more’ focal points was intended to cover Federal States and not to detract from having a core focal point at the relevant level.[7]

An analysis of the existing material suggests that focal points:

should not to act in isolation but must play leading role in co-ordination;

  • have adequate human and financial resources;
  • be located at the highest possible level of government with membership from key players in key ministries who can ensure delivery;
  • be formally designated as the Art 33.1 body;
  • be recognized as independent of the parent ministry;
  • need to promote awareness both within and outside government;
  • participate in the development of the action plan;
  • monitor and report on implementation; and
  • be the “channel” for civil society to communicate with government and public bodies.

Summary of General Recommendations

A focal point should be within government itself:

  • in a section or person within ministry or a cluster of ministries;
  • based in a ministry for human rights or for people with disabilities;
  • chaired by an important minister supported by staff;
  • could be focal points in all key ministries (and local administrations) and co-ordinated by links;
  • could have a dual structure, with high level ministry members, meeting to co-ordinate functions, meeting civil society organizations regularly; and
  • needs to be open and transparent so that details of meetings, minutes and papers are published.

Civil society and focal points, the arrangements need to:

  • ensure the state party is held to account for the implementation (or failure to implement) the rights set out in the CRPD;
  • that the role of civil society and DPOs in particular is robust, complies with article 4.3 of the CRPD – “Nothing about us, without us”;
  • ensure the correct balance between the duty of the state to implement the CRPD and to make decisions about allocation of resources, how those rights are to be delivered and how it is accountable to civil society;
  • be clear about the role of DPOs, the funding of DPOs and potential conflicts involved in service delivery, and to involve DPOs at all levels both small and large; and
  • note that the majority of people with disabilities will not in contact with DPOs so that other forms of consultation and communication will be required.

The existing Coordination Council on Rights of Persons with Disabilities (“the Council”) as the Article 33.1 mechanism

The author of this report met with a number key people to discuss the correct approach to article 33.1 in Georgia. These meetings included:

  • The staff of the United Nations Development Program in Georgia
  • The Staff of OHCHR office in Georgia
  • Head of the GOG Administration
  • The Human Rights Secretariat
  • Representatives of NGOs/DPOs
  • Attending the major conference in Tbilisi, “UN CRPD: Two Years After Ratification” on 14th June 2016, listening to the keynote speeches and participating in the workshops.

The Ombudsman of Georgia, in his 2015 report, has commented:

The Council’s composition, functions and modus operandi are not even formally consistent with the requirements of Article 33 of the Convention with regard to implementation bodies (focal points) and the agreement reached by the States Parties at their seventh conference. More so, in practice, the Council fails to meet its obligation under its own statute and it has only convened once during 2015.

Analysis of the existing situation shows that the focal point for the implementation of the UN Convention on the Rights of Persons with Disabilities is virtually dysfunctional in Georgia. Hence, the process of implementation of the Convention is going with impediments. The Government has to correctly determine the institutional framework required for the implementation of the Convention, re-allocate tasks between the focal point and the coordination mechanism and make these mechanisms truly operational.”[8]

The following concerns were also expressed about the current arrangements in Georgia:

  • There were too many councils, meetings and arrangements in place leading to confusion and overlap and this did not help the government make strategic decisions about the priorities for the implementation of the CRPD nor did it ensure that the government was held to account in its delivery or performance;
  • NGOs/DPOs, as members of the Council with voting rights, are taking on responsibility for decisions which are the responsibility of the state party to CRPD. Consequently, DPOs are making real decisions about the allocation of resources and as a consequence accepting the denial of those scarce resources to others. It is not acceptable for DPOs to have to take on the burden of responsibility for decisions which, in practice, deny some people the rights to which they are entitled;
  • The current arrangements in Georgia appear to be unique and there seems to be no other country which has created a Focal Point under Article 33.1 where decisions about the allocation of scarce resources to ensure the implementation of the rights in the CRPD are in practice and in law made by DPOs/NGOs rather than by the state party.
  • Discussions at the Council were rarely focused on strategic implementation or systemic violations but too often on individual cases and their needs, particular failures of a service or on issues of contracts or grants to DPOs/NGOs;
  • The requirement that the Prime Minister chair every meeting reduced the number of effective meetings in any year and resulted in frequent informal discussions and decisions made between public officials and different ministries, resulting in less effective delivery, less transparent decisions and inadequate communication or consultation with the wider community;
  • The focus of the discussions at the Council resulted in confusion between the interests of individuals, the particular and direct interests of the DPOs/NGOs themselves and the wider interests of people with disabilities in Georgia;
  • The nature of the current arrangements appeared to have created two categories of DPOs/NGOs, those with influence and resources and those, apparently, excluded and without influence; and
  • Given the focus described above there were inadequate arrangements in place to clarify and make transparent the obvious real conflicts of interest.

Recommendations on implementation of article 33.1 of CRPD

It was decided to develop two models of the national mechanism. However, it proved to be a difficult task as proposing two different models that shall be efficient and effective is almost impossible.

The responsibility for delivering the rights in the CRPD is imposed on the state. Both options create one mechanism which will be responsible for both coordination and implementation. Decision-making on how the rights in the CRPD implemented must, therefore, be the responsibility of the government itself. No nation state can implement all the rights in the CRPD immediately and completely.   This is particularly true for states which are small, have little history of providing support for people with disabilities or are relatively poorly resourced and so difficult decisions must be made by states and public officials. DPOs/NGOs must be consulted before all these strategic and policy decisions are made including by providing information about where in government decisions are made and responsibility for implementation is located.

It is proposed that the current Council is abolished and instead a new Mechanism is created. It is also recommended that a new mechanism is the Working Group of IACHR.

It is noteworthy that, article 33.1 is about co-ordination and is designed to ensure that all ministries take their own responsibility for implementation but that this is coordinated and driven forward by the focal point. The focal point needs staff resources but if it is perceived as responsible for the implementation itself the CRPD will not be mainstreamed throughout government which is crucial to the success of delivering the rights that the CRPD contains.

 

Model One of the Mechanism[9]

Mandate: the implementation by the State of Georgia of the CRPD, an essential component of the Human Rights Strategy, the creation and collection of data and information (including segmented data by region and by disability) about disability and people with disabilities in Georgia, the coordination of the public sector within government and municipal authorities to ensure action is taken in all different sectors, to ensure implementation is a priority at different levels within the Georgian state to delivery of the rights contained in the CRPD, mainstreaming disability rights throughout the public sector and raising awareness of the needs and rights of people with disabilities, the scrutiny of all government policies and legislation to identify opportunities to implement the CRPD and any threats to that implementation, the drafting of the chapter on the CRPD in the National Human Rights Strategy, and preparing the periodic reports for the Committee of the CRPD.[10]

Public sector responsibility: each and every public body is itself responsible for ensuring that the CRPD is properly and effectively implemented in itself own sector and contributes positively to the focal point Mechanism. The Mechanism can never be a substitute for responsibilities of government ministries and municipalities but will provide goals and deadlines for these other public sector bodies. Policy expertise and development will remain the responsibility of experts within each department and for the implementation of the CRPD within their sector. The Mechanism also does not replace the need for individual public sector bodies to carry out their effective consultation with people with disabilities.

Local responsibility and municipalities: The Mechanism will need to intervene effectively with local public services and the municipalities to ensure that the CRPD is properly implemented at local level, in the regions and in rural areas. It will need to help to create models and modalities to try to ensure that the kind of co-ordination for the implementation of the CRPD proposed here at the national level is reflected by similar systems locally and that DPOs/NGOs are consulted and are engaged in implementation.

Composition of the Mechanism:

Membership: the high level public officials in all the key Ministries/agencies with a role in the implementation of the CRPD including:

  • The Prime Minister’s Advisor on Human Rights;
  • Ministry of Labour, Health and Social Affairs;
  • Ministry of Regional Development and Infrastructure;
  • Ministry of Finance;
  • Ministry of Culture and Monument Protection;
  • Ministry of Education and Science;
  • Ministry of Justice;
  • Ministry of Sport and Youth Affairs;
  • Ministry of Internal Affairs;
  • Ministry of Corrections;
  • Ministry of Foreign Affairs, and

Requested to participate: Chair or deputy chair of: Human Rights and Civil Integration Committee of the Parliament of Georgia; Parliamentary Committee on Legal Issues, Healthcare and Social Issues Committee of the Parliament of Georgia; and Education, science and culture Committee of the Parliament of Georgia; municipalities representative; Public Defender.

Chair: the First Deputy Minister, Ministry of Labour, Health and Social Affairs

Co-Chair: the First Deputy Minister of Justice, or the First Deputy Minister of Finance.

Decisions: made by government officials at the meetings following open and transparent consultation.

Regularity of meetings: at least three times a year with NGOs/DPOs, international organisations promoting human rights in Georgia, the Prime Minister will be invited to every meeting and the meetings will be held in public. The Chair has the right to call additional special meetings where necessary and any member has the right to request additional meetings.

  • One public meeting will be in January and will consider the progress made in implementation of CRPD over the previous year and the annual plan proposed for implementation by the government for the coming year;
  • A second public meeting will consider any recommendations made by the PDO as a result of its monitoring and complaints mandate (article 33.2);
  • Regular private meetings, attended by the Prime Minister’s Advisor on Human Rights, the Minister or the Deputy Minister of the Ministry of Labour, Health and Social Affairs of key ministries represented at high level will happen once every two months to ensure that the annual plan for implementation is being driven forward;[11]
  • Working groups of public officials and civil society for the consideration of detailed implementation, practical issues or thematic (but not individual cases) may be created and will have a mandate to report back to the main meetings. The working groups are likely to constitute one of the main channels available to the community to raise issues with government and to start a process to deal with these issues.

The working group formats should be created to ensure appropriate representation of both ministries and DPO/NGOs. The formats should be consultative but focus on implementation and the relation to the overall process should be spelt out. The aims of these working groups should be determined in detail in advance.

Transparency: There are three different important mechanisms which assist transparency and participation: (i) attending the meetings themselves and listening to the debate and discussion, (ii) writing and sending in submissions allows a more detailed response to government proposals and allows more detailed alternatives to be suggested, and (iii) speaking at the meetings allows greater interactivity and promotes responses from government.

  • All strategic or high level policy decisions relating to the implementation of CRPD will be made at the meetings of the Mechanism. Any such decisions made outside of the Mechanism meetings for reasons of urgency etc. will be reported to the next meeting;
  • All meeting dates will be announced two weeks in advance and the details set out on the website;
  • DPOs/NGOs (and the PDO) will have the opportunity to send submissions to both private and public meetings and to speak and ask questions at the public meetings;
  • Proposals and papers of both the closed and open meetings to be available on website in advance before strategic and policy decisions are made and the minutes of all meetings to be published;
  • All materials and documents to be accessible and available in all appropriate formats;
  • DPOs/NGOs: diverse and representative groups from civil society should be encouraged to attend the public meetings. All and any DPO and NGO can participate, there will be no restriction, selection or election on those that can attend and participate.

Accountability: The Mechanism is accountable to people with disabilities in Georgia, the Prime Minister, its own members, its public meetings, to DPOs/NGOs, and to the media.

Conflicts of interest: there should be no discussion of individual cases (except for illustration purposes) or service delivery issues by DPOs/NGOs, any conflicts or potential conflicts of interest by those speaking at meetings to be declared and noted in the minutes. Allocation of specific grants or contracts create particular conflicts of interest and decisions on these cannot be made at public meetings of the Mechanism. Representatives of NGOs/PDOs should not be paid to avoid any perception of conflicts of interest or any perception that the participants are subject to inappropriate influence by the government

Advice and opinions: the government may request particular advice or opinions on specific issues from public officials, the PDO or DPOs/NGOs and those will be submitted to the next meeting and published alongside the other materials for the meeting

Rules of procedure for the meetings of the Mechanism will be drafted and published. This should include: the transparency rules and the conflicts of interest rules set out above and specific rules for the conduct of the meetings which allow proper consultation and debate but which prevent unacceptable disruption of the meetings

Secretariat: a dedicated and adequately resourced staff should be created, perhaps from Human Rights Secretariat, with a clear link to Prime Minister and other key ministries. The Secretariat will prepare the agendas, draft papers or ensure that other papers are drafted in advance of the meetings, prepare the minutes, ensure that the rules on transparency and conflicts of interest are observed and all other tasks necessary to ensure the effective conduct of the Mechanism. The Secretariat will also draft and the periodic reports for the CRPD and ensure that are sent to the Ministry of Foreign Affairs to be finalised and dispatched.

Legal certainty: The creation, mandate and procedures for the new proposed mechanism should be set out in writing, agreed by the government following consultation with Parliament and civil society.

Model Two of the Mechanism [12]

Both options create one mechanism which will be responsible for both coordination and implementation. The details of the second option proposed for the Mechanism for the Convention on the Rights or People with Disabilities should be as follows:

Mandate: as for Model One

Public sector responsibility: As for Model One

Local responsibility and municipalities: As for Model One

Composition of the Mechanism:

Membership: the high level public officials in all the key departments with a role in the implementation of the CRPD, as for Model One, plus:

The DPO/NGO members will have a right to attend but no right to vote or to make decisions. All and any DPO and NGO can participate, there will be no restriction, selection or election on those that can attend and participate.

Requested to participate: as for Model One

Chair: as for Model One

Co-Chair: as for Model One

Decisions: as for Model One

Regularity of meetings: at least six times a year.

  • One meeting will consider any recommendations made by the PDO as a result of its monitoring and complaints mandate (article 33.2)
  • All meeting dates to be announced two weeks in advance and to be on the website
  • DPOs/NGOs (and the PDO) will have the opportunity to send submissions to the meetings and to speak and ask questions
  • Working groups of public officials and civil society for the consideration of detailed implementation, practical issues or thematic (but not individual cases) may be created and will have a mandate to report back to the main meetings. The working groups are likely to constitute one of the main channels available to the community to raise issues with government and to start a process to deal with these issues.

The working group formats should be created to ensure appropriate representation of both ministries and DPO/NGOs. The formats should be consultative but focus on implementation and the relation to the overall process should be spelt out. The aims of these working groups should be determined in detail in advance.

Transparency: as for Model One

Accountability: as for Model One

Conflicts of interest: as for Model One

Advice and opinions: as for Model One

Rules of procedure for the meetings as for Model One

Secretariat: as for Model One

Legal certainty: as for Model One

Summary of differences between Option One and Option Two

The proposed: mandate, responsibility of government and local municipalities, membership by government and the public sector, additional participation, Chair and Co-Chair, principles of transparency, accountability, conflicts of interest, advice and opinions, rules, secretariat, importance of the involvement of civil society and legal certainty are the same in both options. The key differences are set out in the table below.

  Option One Option Two
Decisions Made by government officials at the public and the private meetings following open and transparent consultation. Any strategic or high level policy decisions made outside of the public meetings will be reported to the next public meeting. Made by government officials at the meetings following open and transparent consultation. All strategic or high level policy will be made at the meetings. Any such decisions made outside of the meetings for reasons of urgency etc. will be reported to the next meeting.
Membership Formally government only are members. DPOs/NGOs are not members Includes DPOs/NGOs. The DPO/NGO members will have a right to attend but no right to vote or to make decisions.
Regularity of meetings Three times a year in public. Other private meetings will be held but decisions made and policies agreed will be reported to the next public meeting. Six times a year.

 

 

[1] More information on project see on the following link: http://www.ge.undp.org/content/georgia/en/home/operations/projects/democratic_governance/human-rights-for-all/ (last accessed on November 29, 2016).

[2] Full text of the Convention is available at: http://www.un.org/disabilities/convention/conventionfull.shtml (last accessed at November 29, 2016)

[3] http://www.ohchr.org/Documents/Publications/training14en.pdf (last accessed at November 29, 2016)

[4] http://europe.ohchr.org/Documents/Publications/Art_33_CRPD_study.pdf (last accessed at November 29, 2016).

[5] http://www.mdac.org/en/building_the_architecture_for_change_guidelines_on_article_33_of_the_un_convention_on_the_rights_of_people_with_disabilities (last accessed at November 29, 2016).

[6] http://www.internationaldisabilityalliance.org/en (last accessed at November 29, 2016).

[7] http://www.nuigalway.ie/cdlp/staff/gerard_quinn.html (last accessed at November 29, 2016).

[8] Rights of Persons with Disabilities in Georgia, http://www.ombudsman.ge/uploads/other/3/3728.pdf (last accessed at November 29, 2016).

[9] This function is referred to as the Mechanism for Implementation and Co-ordination in the human rights action plan, and shortened to “the Mechanism” in this report. One possible name for this option could be “the Inter-Agency Commission on the Implementation of the CRPD”.

[10] For more details on the work of focal points see page 95, From Exclusion to Equality: Realizing the rightsof persons with disabilities. Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol, OHCHR

[11] Delivery of the CRPD at the local level and by local authorities is crucial and can be ensured (1) by draft laws prepared by Inter-agency Commission activities which, once enacted by Parliament will oblige each local authority to act accordingly; (2) some decisions will need to be delegated by the Inter-Agency Commission to the government so that they become obligatory for local authorities; (3) the government will need to allocate funds for local authorities from the state budget for the implementation of concrete projects and the Inter-Agency Commission will need to monitor such projects to ensure that they are delivered; and (4) government will need to ensure that some local activities are delivered by local authorities rather than by central government.

 

[12] This function is referred to as the Mechanism for Implementation and Co-ordination in the human rights action plan, and shortened to “the Mechanism” in this report. One possible name for option 2 could be “the Focal Point for the Implementation of the CRPD”.

Encouraging discrimination or speaking your mind?

Encouraging discrimination or speaking your mind?
1 December 2016, 6.00 PM – 7.00 PM
Wills Memorial Building, Room 3.31, COUTTS Lecture Theatre

On Thursday 1 December, the Human Rights Implementation Centre will welcome John Wadham, a visiting fellow, as a guest speaker to deliver a talk ‘Encouraging discrimination or speaking your mind?’.

The police reported a substantial increase in recorded hate crimes in the immediate aftermath of the BREXIT referendum. There also appears to be an increase in hate speech and an increase in calls by some people to encourage ‘British jobs’ to be reserved for ‘British people’. Where should freedom of speech stop and are our laws and international human rights treaties drawing the line in the correct place?

John is an independent consultant and a solicitor. Recent projects include: Human Rights Implementation Project; University of Bristol (amicus applications in the African Court and Commission of Human and Peoples’ Rights) and as a Council of Europe expert in Albania, Armenia, Azerbaijan, Georgia, Macedonia, Moldova, and Ukraine.

Book now
This event is free, but please book via the online form.

It would be greatly appreciated by the HRIC and our guests if you could inform us at least a day before, if you are unable to attend this event.

Contact information
If you have any queries about this event please contact suzanne.mills@bristol.ac.uk or call +44 (0)117 331 5218.

Vacancy: short term Policy Officer post based at Her Majesty’s Inspector of Prisons, supporting the UK’s National Preventative Mechanism

Vacancy: short term Policy Officer post based at Her Majesty’s Inspector of Prisons, supporting the UK’s National Preventative Mechanism

It is hoped to be able to recruit for the permanent post externally, but at present we would like to find someone to fill the post temporarily. We hope to offer a six month contract for the temporary post and for this to be paid at £29,495 annual salary pro rata.

We need someone who is available to start as soon as possible to be based in our office in London, preferably full time, and has the right to work in the UK. They would need to go through a basic security vetting.

The role supports both policy work at HMIP and the coordination of the NPM and sits in HMIP’s secretariat. We need someone who would hit the ground running. It’s an interesting post for someone looking to work on detention issues and policy, and requires good analytical and organisational skills.  More details below.

Send a CV and a brief letter setting out their interest and experience to Louise.Finer@HMIPrisons.gsi.gov.uk

 

HM Inspectorate of Prisons Policy Officer
Job Description

Duties will include:
Monitoring and tracking policy and legislative processes to ensure the Chief Inspector and HMIP colleagues are briefed on relevant developments.
Providing policy support to the Chief Inspector, Senior Policy Officer and HMIP, including supporting and drafting briefing papers, consultation responses and ad hoc requests.
Organising NPM meetings (including bi-annual business meetings and quarterly steering group meetings) and supporting NPM governance.
Contributing to NPM coordination tasks (including research and policy projects, NPM self assessment, preparing training materials and factsheets and updating NPM website).
Supporting the work of HMI Prisons’ Secretariat.

Skills & Qualifications

You will be required to have:

Experience of applying research and analysis in a policy context.
Excellent oral and written communication and interpersonal skills.
Excellent organisational skills, including planning and organising multi-stakeholder meetings.
Attention to detail and ability to prioritise, work under pressure and meet deadlines.
Proven experience and understanding of criminal justice and/or detention-related issues.
Interest in and commitment to strengthening human rights protections and preventing ill treatment in detention.
Demonstrable understanding of working independently of government.
Experience of working with Microsoft Excel and Powerpoint.

Also highly desirable:
Understanding of legislative processes.
Awareness and understanding of human rights.
Experience of working with coalitions and multi-stakeholder bodies.

Bending the jurisprudence and UK threats to leave the ECHR

Introduction

 

The UK government has been threatening to alter its relationship with the ECHR and repeal the Human Rights Act (HRA), which makes the ECHR part of UK law, since the Coalition government was elected in 2010. The Conservative Party has, in fact, had such a policy of repealing the HRA since 2006.   In 2014 that party set out detailed proposals to amend the Human Rights Act, and to withdraw from the Convention.[1] The Conservative government, newly elected in May 2015, is about to produce a detailed consultation paper designed to implement some (or all) of these proposals and, although this has been delayed again, its is expected to emerge in the next couple of months.

 

Meanwhile the Committee of Ministers of the Council of Europe have failed to enforce judgments against the UK in relation to the right of prisoners to vote in elections. The first of the judgments on prisoner voting was given as far back as 2006.[2] The Court itself seems particularly reluctant to award compensation to applicants in subsequent cases which have found continuing violations of this right to vote.[3]

 

In parallel there have been a series of cases during this same period taken against the UK where, perhaps surprisingly for some expert commentators, no violation has been found by the ECtHR. This article will explore whether the Court’s judgments have, in fact, given the UK greater leeway than might be expected and will ask whether the Court has been influenced by the Conservative Party’s attitude to the ECHR, the political discussions in the UK and the threats to the Human Rights Act and the UK’s membership of the ECHR.[4]

 

Changes proposed

“… the time has now come for a new solution that protects liberties in this country that is home-grown and sensitive to Britain’s legal inheritance that enables people to feel they have ownership of their rights and one which at the same time enables a British Home Secretary to strike a common-sense balance between civil liberties and the protection of public security.”[5]

In 2006 David Cameron, the leader of the Conservative Party and now Prime Minister, suggested that the HRA 1998 ‘has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country, and at the same time it hasn’t really protected our human rights’ and committed his party to make changes.

Reform of the Human Rights Act has been under consideration almost since its inception and decisions of the domestic courts and the ECtHR have been subject to considerable criticism in many newspapers. Fury over the Human Rights Act reached fever pitch as a result of the long-delayed legislation brought forward to give prisoners the right to vote in line with the decision of the European Court in Hirst v UK (No 2) in 2006. The media and many politicians denounced the Convention and called for the United Kingdom to remove itself from the jurisdiction of the European Court.

 

The Labour Government in 2007 published a Green Paper[6] and a statement[7] exploring the possibility of a British Bill of Rights as part of a wider programme of constitutional reform. The Joint Committee on Human Rights of the UK Parliament contributed to the debate by undertaking a formal inquiry into a Bill of Rights, which reported in August 2008.[8] It found that the case for a Bill of Rights had been made out, but emphasized that the Bill could not be a vehicle for diluting the protections of the Human Rights Act; rather, it should add to those rights already protected.

 

In March 2009, the Labour Government launched a consultation process on a Bill of Rights in a Green Paper, Rights and Responsibilities: Developing our Constitutional Framework.[9] The Green Paper set out preliminary proposals for a ‘Bill of Rights and Responsibilities’, but the 2010 general election intervened before the consultation was completed. The Conservative Party went into the election with a commitment to repeal the HRA – in fact it was in David Cameron’s top three of the changes he wanted his government to make.[10] The Liberal democrats on the other had wished to see it preserved and the founding document of the Coalition Government resolved this disagreement as follows:

 

“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”[11]

 

The Commission that was subsequently established reported at the end of 2012 but there was, however, no consensus on what, if anything, needed to change.[12] However there was concern by some members of the Commission that the debate in the Commission was moving away from the objectives set out in the Coalition agreement towards a discussion of removing rights, and particularly towards withdrawing from the ECtHR.

 

The UK Government also partly responded to this criticism of the HRA and ECHR by using its chairmanship of the Council of Europe to push on with further reforms of the Court to ‘rebalance’ its relations with national courts and parliaments. This resulted in the “Brighton Declaration”[13] and in turn, two new protocols, the first of which, protocol 15, will impose (amongst other things) further restrictions on access to the Court and, might push the Court to be more “careful” in its judgments. The Protocol 14 changes and the other internal changes made by the Court itself have already enabled the court to clear most of its backlog. The stricter process for filing applications themselves, which was implemented by the Court itself at the beginning of 2014, has also likely to have an effect on the Court’s future workload. When implemented Protocol 15 will:

 

  • add a new recital to the preamble to the Convention stressing the margin of appreciation enjoyed by states;
  • reduce the maximum age of judges on selection from 70 to 65;
  • remove the right of a party to object to a case being dealt with by the Grand Chamber;
  • reduce the time for making applications from six months to four months; and
  • make it easier for specified cases to be declared inadmissible.

 

Although the UK’s original proposals for reform were watered down, pressure for reform has led to a wider ranging review of the long-term future of the Court, the consequences of which are difficult to predict.

 

Obviously human rights and the ECHR, more particularly, have been criticized by the media and politicians in the UK for many years. For instance, following McCann v UK in 1995, which concerned Article 2 and became a cornerstone of the Court’s jurisprudence, the Daily Mail newspaper reported:

 

“Ministers said they would ignore it and were not ruling out the ultimate sanction of a withdrawal from the court’s jurisdiction. ‘Every possible option is being kept open, including walking away,’ said one insider.

 

Downing Street said the ruling in the so-called Death on the Rock case ‘defied common sense’. Deputy Prime Minister Michael Heseltine branded it ‘ludicrous’…

 

Mr Heseltine will head a group of senior Ministers – including Home Secretary Michael Howard, Foreign Secretary Malcolm Rifkind and Leader of the Commons Tony Newton – who will take a ‘long, cool look’ at the options available.”[14]

 

Even before the HRA had come into force it was being attacked by some senior judges:

 

“A field day for crackpots, a pain in the neck for judges and a gold mine for lawyers.[15]

 

The media has consistently criticized judgments of the domestic courts, the ECtHR and the HRA, often distorting the facts.[16]

“The Court has never, in its 50-year history, been subject to such a barrage of hostile criticism as that which occurred in the United Kingdom in 2011 Over the years certain governments have discovered that it is electorally popular to criticise international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back The issue of prisoners’ voting rights was transformed into a national interrogation in the UK about the legitimacy of the ECtHR. The Daily Mail led the charge.”[17]

Cases against the UK

 

Any analysis of any change in the ECtHR’s attitude to the UK needs to take account of the approach taken by the higher courts in the UK to the jurisprudence of the ECtHR. Obviously before the HRA the domestic courts were not obliged to take account of the ECtHR’s jurisprudence and even their discretion to do so was severely limited.[18] After October 2000 this all changed and section 2 of the HRA required the domestic courts to take this jurisprudence into account. No national court should “without strong reason dilute or weaken the effect of the Strasbourg case law” (Lord Bingham)[19]

 

“However, in rare circumstances, the Supreme Court has effectively sent issues back to Strasbourg for reconsideration.”[20]

 

This is a reference to the judgment of the Supreme Court R v Horncastle in 2009. The case concerned Article 6 and hearsay evidence. Lord Philips said that although the requirement to “take into account” the Strasbourg jurisprudence would “normally result” in the domestic court applying principles that are clearly established by the ECtHR.

 

“There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course”.

Is there a trend?

Any attempt to discern a trend in the approach taken by the ECtHR over the last five to ten years is very difficult. First, because of the (statistically) small number of violations found against the UK:

“The UK has a very low ‘rate of defeat’ at Strasbourg. Of the nearly 12,000 applications brought against the UK between 1999 and 2010, the vast majority fell at the first hurdle. Only three per cent (390 applications) were declared admissible. An even smaller proportion of applications – 1.8 per cent (215) – eventually resulted in a judgment finding a violation. In other words, the UK ‘lost’ only one in fifty cases brought against it in Strasbourg. If adjustment is made for repetitive cases (i.e. cases where the violation has the same root cause and therefore multiple judgments are counted as a single judgment), the rate of defeat falls to 1.4 per cent (161).”[21]

Interestingly, the number of cases against the United Kingdom lodged with the ECtHR before and after the Human Rights Act came into force in 2000 seems to have remained roughly the same. The number of allocated cases against the United Kingdom increased considerably in 2010 (2,745), twice that in 2008 or 2009, but returned to 912 for 2013.[22] The Court found only 8 violations of the Convention in 2013, around the usual average. The number of cases ‘communicated’ (referred to the Government requiring a response, the initial sifting stage) has reduced from 163 in 2000 to 35 in 2013.

In the four years ending 31st December 2015 there were some 80 judgments where the UK was the respondent and in about 40 of those cases one or more violations were found. This does not seem to be particularly (statistically) out of step with previous periods. Obviously teasing out whether these and other such cases are out of kilter with the thrust of the continuing development of the jurisprudence is no easy task.

 

Showing any kind of statistical trend in judgments is fraught with difficulties for the following reasons:

 

  • it is necessary to select out those cases where there is more than one judgment stemming from the same law, policy or procedure;
  • there are also additional complications which concern how to deal with multiple alleged violations in one application from one person, when applications that are joined, where admissibility decisions are reserved for the Court’s judgment;
  • different arrays of judges may be making decisions in UK cases and of course there will be variations between sections and the Grand Chamber;
  • some violations which are based on systemic issues span across any time period selected for comparison as will the subsequent judgments;
  • the small sample size, the significant delay from application to judgment and the fact that the Court has had workload difficulties which have now been reduced during the period of interest makes it difficult to make proper comparisons;
  • admissibility rules have changed during the period[23] as have the procedural rules[24]; and
  • the circumstances in the UK have varied considerably themselves. New governments have taken over, new laws have been made or repeal and new practices have been adopted.

 

It is also likely that even if the dominant political position in the UK was having an influence in UK cases in the ECtHR it is unlikely to be uniform across different kinds of cases. For instance:

 

  • cases are less likely to be controversial if the law, policy or procedure that was causing a problem has already been changed or is about to be changed;
  • cases are also unlikely to be of concern if they relate to a unique set of facts (unless they are about a controversial person or group);
  • variations of approach depending on the article is issue
  • the media’s reaction to a possible finding of a violation (and any “pet hates” they might have may also vary the possible nature of the impact on the judges); and
  • judges will be influenced in different ways by different criticisms of different cases.

 

Other factors

 

Obviously any analysis is also fraught with the difficulty that the analyst might have his or her own views about the correctness of any particular judgment or set of judgments, either because of a view about how far the courts should go in “balancing” the approach taken by parliaments and the state or because of issues of comity, neatness, strict precedence or conformity with judgments from other jurisdictions.

 

Is it possible to show that there is a difference in treatment of the UK compared with other similar countries the Court slowing down in its judicial activism and expansion of its jurisprudence? Perhaps this is not just about UK?

 

For instance a new approach to the margin of appreciation based on the nature of the consideration by a parliament of the offending law, policy or procedure.[25]

 

How should we take account of decisions referred or appealed to the Grand Chamber? Are they less likely to be influenced or more?

 

Evidence

 

Evidence could also be sought by way of obvious “errors”, a case changed the nature or direction of jurisprudence, dissents, critical articles, critical judgments by other courts, cases overturning by Grand Chamber, or subsequent change of direction of jurisprudence suggesting the original decision against the UK was flawed.

 

Cases

 

I looked at the 80 or so judgments in the last four years where the UK was the respondent. I identified 18 of these, including all the eight cases decided by the Grand Chamber which might “appear to be” controversial or difficult (and where there was at least one finding of no violation) and subsequently narrowed this down to five cases to discuss today. In doing so I have picked up the issues from the dissents and in some of the public comments from experts.

 

Al-Khawaja (15.12.11)

 

This case concerned Article 6 and hearsay evidence used in a criminal trial. The issue started with the Al-Khawaja chamber judgment in the ECtHR (20.01.09) which was then considered by the Supreme Court in R v Horncastle (09.12.09). In the latter case Lord Philips said that although the requirement to “take into account” the Strasbourg jurisprudence would “normally result” in the domestic court applying principles that are clearly established by the ECtHR.

 

“There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course”.

 

Following this judgment of the Supreme Court, the Grand Chamber then gave judgment in Al-Khawaja and Tahery v UK (15.12.11). The Strasbourg court took the UK Supreme Court’s judgment into account “demonstrating the concept of ‘dialogue’ between the two courts”.[26] Finally the ECtHR then considered the case of Horncastle itself and found no violation of article 6 despite the use of hearsay evidence leading to the conviction (16.12.14). The press release from the Court on Horncastle stated:

 

“This judgment concludes the judicial dialogue on the admissibility of hearsay evidence in criminal trials which commenced with the delivery of this Court’s Chamber judgment in Al-Khawaja and Tahery. The Supreme Court, when hearing the present applicants’ appeal, examined that judgment and invited the Grand Chamber to accept a request to rehear the case. The subsequent Grand Chamber judgment in Al-Khawaja and Tahery agreed with the Supreme Court that the sole or decisive rule should not be applied in an inflexible way.”

However two of the dissenting judges in the Court in the Grand Chamber in Al Khawaja stated their objection to this new approach by the majority of the Court:

“To our knowledge this is the first time ever that this Court, in the absence of a specific new and compelling reason, has diminished the level of protection. This is a matter of gravest concern for the future of the judicial protection of human rights in Europe.”

 

Professor Conor Gearty said of this new approach:

 

Horncastle set Strasbourg a test which having pleaded special needs and asked for more time, it has now triumphantly passed.[27]

 

A respected legal commentator from the UK said before the judgment:

 

“… the wiser decision for the human rights judges would be to join the dialogue initiated by Lord Phillips and to modify their previous decision in Khawaja. If they show respect for decisions of the UK courts now, perhaps the UK government will show more respect for their rulings in future.”[28]

 

In relation to Tahery, where the Court did find a violation, another commentator said:

 

“Because this is an “application breach” type of case – in other words, what is complained about is a not a systematic breach of Convention rights automatically caused by UK law, as for instance in the case of prisoners’ voting, but merely that a particular ruling on evidence in one case was unfair – there is little or no risk of any ongoing stand-off or “dialogue” between Strasbourg and the UK courts developing into a major question of international human rights compliance.”[29]

 

Animal Defenders (22.04.13) 

 

The facts:

 

“In 2005 the applicant began a campaign called ‘My Mate’s a Primate’ which was directed against the keeping and exhibition of primates and their use in television advertising. As part of the campaign, the applicant wished to broadcast a 20-second television advertisement. The proposed advertisement opened with an image of an animal’s cage in which a girl in chains gradually emerged from the shadows. The screen then went blank and three messages were relayed in sequence: “A chimp has the mental age of a four year old”; “Although we share 98% of our genetic make-up they are still caged and abused to entertain us”; and “To find out more, and how you can help us to stop it, please order your £10 educational information pack”. In the final shot, a chimpanzee was in the same position as that of the girl.”[30]

 

Because the objectives of the advertisement were “wholly or mainly of a political nature” section 321(2) of the Communications Act 2003 prohibited the broadcasting of the advertisement. The applicant challenged the ban but was unsuccessful and on 12 March 2008 the House of Lords unanimously dismissed the applicant’s appeal. The ECtHR chamber relinquished the case to the Grand Chamber which subsequently found no violation of article 10 but only by the slimmest of majorities (9 votes to 8). Some flavor of the divide between the two sets of judges can be illustrated by a couple of quotes from those dissenting.

 

“…there can be no double standards of human rights protection on grounds of the “origin” of the interference. It is immaterial for a fundamental human right, and for that reason for the Court, whether an interference with that right originates in legislation or in a judicial or administrative act or omission. Taken to its extreme such an approach risks limiting the commitment of State authorities to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention. Where the determination of the public interest and its best pursuit are left solely and exclusively to the national legislator, this may have the effect of sweeping away the commitments of High Contracting Parties under Article 1 of the Convention read in conjunction with Article 19, and of re-asserting the absolute sovereignty of Parliament in the best pre-Convention traditions of Bagehot and Dicey. The doctrine of the margin of appreciation, which was developed to facilitate the proportionality analysis, should not be used for such purpose.[31]

 

“The ban was […] applied independently of the content of the message: no matter that the latter drew the public’s attention to a matter of public interest (the ill-treatment of animals) and that no one had suggested that it was in any way shocking or reprehensible. The ban was also applied independently of the advertiser’s identity: no one had claimed that the applicant NGO was a financially powerful body with the aim or possibility of endangering the broadcaster’s impartiality or unduly distorting the public debate, or that it served as a smokescreen for such a group. All that it wished to do was to take part in a general debate on animal protection. To illustrate the scale of the ban’s effect in the applicant NGO’s case, one need only compare its situation to that of a commercial firm: the latter would have had full freedom, limited only by its financial resources, to screen advertisements using animals to promote its products, an approach directly contrary to the values of the applicant NGO.”[32]

 

In fact in very similar circumstances the Court in 28.06.01 in VgT Verein gegen Tierfabriken v. Switzerland decided that:

 

“…it has not been argued that the applicant association itself constituted a powerful financial group which, with its proposed commercial, aimed at endangering the independence of the broadcaster; at unduly influencing public opinion or at endangering equality of opportunity among the different forces of society. Indeed, rather than abusing a competitive advantage, all the applicant association intended to do with its commercial was to participate in an ongoing general debate on animal protection and the rearing of animals. The Court cannot exclude that a prohibition of “political advertising” may be compatible with the requirements of Article 10 of the Convention in certain situations. Nevertheless, the reasons must be “relevant” and “sufficient” in respect of the particular interference with the rights under Article 10… In the Court’s opinion, however, the domestic authorities have not demonstrated in a “relevant and sufficient” manner why the grounds generally advanced in support of the prohibition of political advertising also served to justify the interference in the particular circumstances of the applicant association’s case.”[33]

 

Tom Lewis, Reader at the Nottingham Law School commented:

 

“ADI might be portrayed as an example of successful dialogue between Strasbourg and the UK’s legislature and courts:  the former decided to revisit its earlier approach, taking on board the considered views of the latter. A less charitable view is that in the wake of Hirst v UK and the prisoners voting saga, the Strasbourg Court was wary of being accused of again meddling in British democracy and simply lost its nerve, preferring to overturn its previous case law than risk another confrontation with the UK government and press.”[34]

 

Austin (15.03.12)

 

The applicants:

 

“… attended a protest against globalisation outside the World Bank before walking with other protesters to Oxford Circus, arriving at about 2 p.m. Around 3.45 p.m. Ms Austin needed to leave the demonstration to collect her daughter from the crèche. She explained her situation to two police officers maintaining the cordon but was told that she could not leave and that it was not known how long it would be before she would be able to leave the area…”

 

The second applicant “was told by a police officer that he could not walk down Oxford Street because of the approaching crowd of demonstrators and was advised to take Margaret Street, a parallel road to the north. The applicant followed this advice but between Margaret Street and Regent Street he was met by a wall of riot police with shields and helmets moving south. The applicant was forced into Oxford Circus at about 2.30 p.m. He immediately asked to be allowed out of the cordon and was informed that there was an exit for non‑protesters at the Bond Street side of Oxford Circus; when he went there he was told that there was no exit. The applicant was not able to exit the cordon until 9.20 p.m.

 

The third applicant had no connection with the demonstration. She worked in the Oxford Circus area and was on her lunch break at 2.10 p.m. when she was prevented from returning to her workplace by a line of police officers blocking the road. She turned and tried to pass in another direction but found that that exit was also now blocked by police officers, who began to advance towards her. She was held within the cordon at Oxford Circus until 9.35 p.m. She and others repeatedly requested to be allowed to leave the cordoned area but was told by the policemen she approached that they were under orders to allow no one to pass.

 

The fourth applicant also worked in the Oxford Circus area and was also caught up in the cordon while walking through Oxford Circus on his lunch break. He was able to leave at approximately 8 p.m.”[35]

 

“It is striking that, some five minutes after the absolute cordon was imposed, the police were planning to commence a controlled release towards the north. Thirty minutes later, a second attempt by the police to begin release was begun but suspended because of the violent behaviour of those within and outside the cordon. Between about 3 p.m. and 6 p.m., the police kept the situation under review but the arrival of a new group of protesters and the dangerous conditions within the crowds led them to consider that it would not be safe to attempt to release those within the cordon. Controlled release was recommenced at 5.55 p.m. but stopped at 6.15 p.m.; resumed at 7 p.m. and suspended at 7.20 p.m.; begun again at 7.30 p.m. and again abandoned; then carried out continuously, in groups of ten, until the entire crowd had been released at 9.45 p.m.”[36]

 

The Court by 14 votes to 3 found no violation of article 5 and concluded:

 

“…that there was no deprivation of liberty, is based on the specific and exceptional facts of this case… It must be underlined that measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies. Had it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the “type” of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within Article 5.[37]

 

In the dissent the minority stated:

 

In terms of the principles governing the application of Article 5 of the Convention… the majority’s position can be interpreted as implying that, if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable for two reasons.

 

  1. Firstly, the Court has always held that the aim or intention of a measure cannot be taken into account in assessing whether there has been a deprivation of liberty. These aspects are relevant only in assessing whether the deprivation of liberty was justified for the purposes listed in sub-paragraphs (a) to (f) of Article 5 § 1. In other words, the wording of Article 5 in itself strikes the fair balance inherent in the Convention between the public interest and the individual right to liberty by expressly limiting the purposes which a deprivation of liberty may legitimately pursue.

 

  1. Next, regard being had to the structure and wording of Article 5 § 1 of the Convention, there can be no distinction in principle between measures taken on public-order grounds and measures imposed for any other legitimate/public-interest purpose. In other words, there is no reason to treat deprivations of liberty resulting from public-order considerations any differently from other kinds of deprivation of liberty for which this provision is invoked. Otherwise, States would be able to “circumvent” the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5 § 1 (a) to (f), as long as they could show that the measure was necessary.”[38]

 

David Mead, University of East Anglia commented:

 

“The Court will not have been unaware of the recent public and political reaction following Othman v UK, holding that Abu Qatada could not be deported to Jordan. Interim, we have had the leaking of the Brighton Declaration on the future of the Court (discussed on this ‘blog by both Mark Elliott and Noreen O’Meara). Is it surprising then that the narrowing of protection in Austin arose at a time when the Court and its judges might feel under heavy threat from politicians in member states – and indeed from leading judges? It would explain why it felt it could (should?) depart from A v UK, the Belmarsh case in 2009, which the three dissenting judges highlighted.[39]

 

“Was the ECtHR influenced by the current Strasbourg-sceptic rhetoric from London?  This cannot be said with any certainty.  However, it is interesting to note how the court emphasized the living instrument doctrine and stated that “subsidiarity” was at the heart of the convention.  Furthermore, wide discretion was to be given to the Police.  Such statements may be seen as designed to address some of the UK government’s criticisms of how the court has operated.   Also, the court’s decision in Austin is not entirely easy to reconcile with its decision in Gillan and Quinton where it was held that detention for 30 minutes amounted to deprivation of liberty given that there was an element of coercion.”[40]

 

 

Ibrahim (16.12.14)

 

The facts

 

“On 7 July 2005, four suicide bombs exploded on three underground trains and one bus in central London, killing fifty-two people and injuring hundreds more.

 

Two weeks later, on 21 July 2005, the first three applicants, Mr Ibrahim, Mr Mohammed and Mr Omar, and a fourth man, Mr Hussain Osman, detonated four bombs contained in rucksacks at separate points on the London public transport system…

 

Although the four bombs were detonated, in each case the main charge, liquid hydrogen peroxide, failed to explode. Subsequent testing revealed that this was most likely the result of an inadequate concentration of the hydrogen peroxide: the hydrogen peroxide found in the bombs had a lower concentration than that which would have been necessary for it to explode.”[41]

 

Following the arrests of the applicants, access to their lawyers was denied initially and a safety interview took place.

 

“A “safety interview” is an interview conducted urgently for the purpose of protecting life and preventing serious damage to property. The detainee is questioned in order to secure information that may help avert harm to the public, by preventing a further terrorist attack, for example. The interview may occur in the absence of a solicitor and before the detainee has had the opportunity to seek legal advice.”[42]

 

Material from those interviews was used at the trial despite attempts by their lawyers to have it excluded. By 6 votes 1 the Chamber decided that there was no violation of article 6 although the matter is now to be considered by the Grand Chamber. The Chamber Court stated in conclusion:

 

“…the Court finds that, taken cumulatively, the counterbalancing safeguards contained in the legislative framework governing safety interviews, the careful application of that legislative framework by the police in the applicants’ cases, the trial judge’s ruling on admissibility and his directions to the jury and the strength of the other prosecution evidence against the first three applicants mean that no undue prejudice can be held to have been caused to their Article 6 § 1 right to a fair trial as a result of the denial of legal advice to them before and during their safety interviews, followed by the admission of the statements made during those interviews at their trial. Accordingly, it concludes that there has been no breach of Article 6 § 1 read in conjunction with Article 6 § 3 (c) of the Convention in respect of the first three applicants.”[43]

 

However the dissenting judge said:

 

“While the case-law of this Court sees the privilege against self-incrimination as one of the basic principles of Article 6 of the Convention, there is little doubt that the “minimum right to legal assistance” enshrined in Article 6 § 3 (c) serves as one of the basic guarantees for the protection of this privilege. In the present case, the majority agreed with the domestic authorities and the Government that “the police were concerned that access to legal advice would lead to the alerting of other suspects” and were satisfied that, at the time of the “safety interviews”, the delayed access to legal advice was justified by “the need to obtain, as a matter of critical urgency, information on any further planned attacks and the identities of those potentially involved in the plot, while ensuring that the integrity of the investigation was not compromised by leaks”, a need which “was clearly of the utmost compelling nature”. While I am fully aware of the difficult and urgent situation, which called for “safety interviews” for the purposes of obtaining information that was urgently necessary to remove imminent danger and save the lives of many, I find myself unable to follow the argument that preventing access to a lawyer may be justified for the purposes of “ensuring that the integrity of the investigation was not compromised by leaks”. This argument appears to be broadly dismissive of the very essence of the right guaranteed by Article 6 § 3 (c), being potentially applicable to any investigation proceedings, and reflects a generalised view that lawyers constitute a threat to justice by definition.”

 

“…the applicable legal framework, which appears to leave no space for the right to remain silent, the erroneous or omitted cautions against self-incrimination, taken together with the absence of legal assistance –, amounted to “coercion or oppression in defiance of the suspect’s will”. A proper analysis of this situation may lead to the conclusion that, taken together, these circumstances inevitably trap suspects in a situation where both their silence and their lies may be lawfully interpreted to their detriment, thus leaving space only for confession. The compatibility of this situation with the principles in Saunders is questionable. It appears that in this regard the majority were satisfied with the observation that they were neither arrested, nor subjected to any ill-treatment. I am not convinced that this suffices for the purposes of ruling out “coercion” within the meaning of the Court’s case-law. In this regard I would simply mention the principles reiterated in Gäfgen where, with regard to “the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterate[d] that these [were] generally recognised international standards which [lay] at the heart of the notion of fair procedures under Article 6”. [44]

 

Vinter (09.07.13) and Hutchinson

 

The applicants were all imprisoned and given life sentences for very serious offences but argued that the “whole life order” imposed on them was a violation of article 3. The effect of a whole life order is that the prisoner cannot be released other than at the discretion of the Secretary of State. The Secretary of State will only exercise his discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated.

 

The Chamber (17.01.12) found, by four votes to three, no violation of article 3. In the subsequent Grand Chamber proceedings the UK Government argued that:

 

“Relying on the Court of Appeal’s judgment in Bieber and the Secretary of State’s power of release contained in section 30 of the 1997 Act, the Government submitted that a whole life order was not an irreducible life sentence. The Secretary of State’s power was wide and non-prescriptive. When exercising it, he was required to act compatibly with the Convention. Thus, should the applicants ever seek to contend that their continued detention was not justified on any penological grounds, and if that were shown to be the case, section 30 would enable them to be released. Any decision by the Secretary of State to the contrary would be amenable to judicial review.”[45]

 

This did not persuade the judges and a violation was found by the Grand Chamber by 16 votes to 1.

 

Hutchinson (03.02.15)

 

This case also concerned whole life orders and but the Chamber found no violation by 6 votes 1:

 

“…subsequent to the Court’s consideration of section 30 in Vinter and Others the Court of Appeal delivered a judgment in which it expressly responded to the concerns detailed in Vinter and Others. In R v. Newell; R v McLoughlin the Court of Appeal held that it was of no consequence that the Lifer Manual had not been revised, since it was clearly established in domestic law that the Secretary of State was bound to exercise his power under section 30 in a manner compatible with Article 3. If an offender subject to a whole life order could establish that “exceptional circumstances” had arisen subsequent to the imposition of the sentence, the Secretary of State had to consider whether such exceptional circumstances justified release on compassionate grounds. Regardless of the policy set out in the Lifer Manual, the Secretary of State had to consider all the relevant circumstances, in a manner compatible with Article 3. Any decision by the Secretary of State would have to be reasoned by reference to the circumstances of each case and would be subject to judicial review, which would serve to elucidate the meaning of the terms “exceptional circumstances” and “compassionate grounds”, as was the usual process under the common law. In the judgment of the Court of Appeal, domestic law therefore did provide to an offender sentenced to a whole life order hope and the possibility of release in the event of exceptional circumstances which meant that the punishment was no longer justified.”[46]

 

The dissenting judge stated however:

 

“The reasoning of the majority in the present case is based on the premise that the Grand Chamber erred in its understanding of the domestic law as expressed in the case of Vinter and Others in 2013, and also on the fact that, since “it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation” (see paragraph 24 of the judgment), they were prepared to accept that the correct interpretation of the domestic law was provided in the post-Vinter judgment delivered by the special composition of the Court of Appeal on 18 February 2014 in the case of R v. Newell; R v. McLoughlin [2014] EWCA Crim 188. In that judgment, the Court of Appeal disagreed with the Grand Chamber’s views on the clarity and certainty of the domestic law as first set out in R v. Bieber [2009], and reaffirmed that this interpretation was sufficiently clear and certain. Assuming that this is so, I fail to see the bearing of this progressive development of the law on the applicant’s situation a year earlier, in 2008, when his complaints were submitted to the Court, or at the time of their examination by the Court in 2015.”

 

One academic commentator put it this way:

 

“Does this case signal a trend in the Court’s case law? Are there going to be more highly politicised judgments in favour of the United Kingdom prior to the 2015 elections? Is the European Court of Human Rights a strategic actor that can sacrifice certain achievements in certain areas of human rights protection in order to save the “Strasbourg project”? The Court’s judgments in the next few months are crucial for answering these questions.”[47]

 

The case of Hutchinson was heard by the Grand Chamber on 21st October 2015 and the judgment is now eagerly awaited.

 

“…we must consider the political or diplomatic repercussions of such a decision. The decision of the European Court in Hutchinson will be viewed by the government as evidence that the Court is now prepared to leave the details of such questions to the domestic authorities. …The Government will hope that the Grand Chamber will take a similar approach and that the secretary can deal with these cases as and when they wish (if at all). At present the vast majority of whole lifers are not eligible for review even under the Vinter ruling, and at the very least the Government will be given time without committing itself to formulating a Convention friendly policy. Indeed, if the decision is overturned the Government will undoubtedly revive its plans to scrap the Human Rights Act – delayed last month – with renewed vigour.

 

It is to be hoped that the Grand Chamber’s judgment is not, as the first judgment appeared to be, affected by diplomatic reasons and a desire to make peace with member states over the issue of subsidiarity.” [48]

 

Conclusion

 

Are the judges in the ECtHR are responding to the local political pressure to repeal the HRA and alter the UK’s relationship with the ECHR? Probably not. Is it an influencing factor? Probably.

 

I believe that the jurisprudence on the UK from the ECtHR is less strident and, certainly, more sophisticated. This has probably helped in toning down the recent criticisms in the UK of the ECtHR and helped to ensure that proposals for the UK to withdraw from the ECHR are not being pushed quite so hard. So from the point of view of the long-term promotion and protection of human rights in the UK this is probably a good thing. However I am disappointed that the Court has taken a wrong turn in the cases I have considered. From the point of view of human rights across Europe and beyond it is too early to tell whether the Court’s approach will turn out to have been the right one.

 

 

 

[1]https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf

[2] Hirst v the United Kingdom (No 2)

[3] Firth and Others v UK

[4] For a comprehensive analysis of the context, see The UK and European Human Rights, A Strained Relationship?, Hart, 2015

[5] June 26, 2006, http://www.theguardian.com/politics/2006/jun/26/conservatives.constitution

[6] The Governance of Britain, 2007.

[7] Prime Minister’s statement on constitutional reform, HC, col 819 (3 July 2007).

[8] JCHR, A Bill of Rights for the UK? 29th Report (2007–2008), HL 165-I, HC 150-I.

[9] Cm 7577, 2009.

[10] October 2009, Conservative Party conference

[11] May 2010.

[12] The Commission on a Bill of Rights’ report – A UK Bill of Rights? – The Choice Before Us, 18 December 2012, Ministry of Justice.

[13] High Level Conference on the Future of the European Court of Human Right: Brighton Declaration, 20th April 2012, Council of Europe.

[14] Daily Mail, 28 September 1995

[15] Lord McCluskey, Scotland on Sunday, 6 February 2000.

[16] Human Rights Futures Project, LSE November 2011, http://www.lse.ac.uk/humanRights/documents/2011/KlugHRAMedia.pdf

[17] The Future of the European Court of Human Rights’, German Law Journal, 12, 10: 1862-77. Michael O’Boyle (Registrar of the ECtHR), 2011

[18] Using Human Rights Law in English Courts, Hart, 1997, Murray Hunt

[19] R (Ullah) v Special Adjudicator

[20] UK Supreme Court, https://www.supremecourt.uk/about/the-supreme-court-and-europe.html

[21] The UK and the European Court of Human Rights, Equality and Human Rights Commission, 2012, Alice Donald, Jane Gordon and Philip Leach

[22] Analysis of statistics 2013, the jump in numbers is probably a result of an influx of prisoners’ right to vote cases.

[23] Protocol 14

[24] The strict requirement for applications to be made on the prescribed form and including all the necessary information within the six months time limit.

[25] The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments, Matthew Saul, Human Rights Law Review, Vol 15, No 4, 2015

[26] See footnote 18

[27] UK Constitutional Law Association, 9 January 2012

[28] The Guardian, 12 December 2011

[29] Head of Legal Blog, 15 December 2011

[30] Para 9

[31] Para 10, dissent by Judge Ziemele and others

[32] Para 19, dissent by Judge Tulkens and others

[33] Para 75

[34] Oxford Human Rights Hub, 25 April 2013. See also Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?, Tom Lewis, Modern Law Review, Vol 77, 3, May 2014

[35] Para 11

[36] Para 67

[37] Para 68

[38] Para 3 to 5, dissent by Judge Tulkens and others

[39] UK Supreme Court Blog, 30 March 2012

[40] ObiterJ Blog, 16 March 2012

[41] Paras 8 to 10

[42] Para 17

[43] Para 213

[44] From the dissent of Judge Kalaydjieva

[45] Para 94

[46] Para 23

[47] Kanstantsin Dzehtsiarou,10 February 2015, ECHR Blog

[48] Steve Foster, Coventry Law School, Criminal Law and Justice Weekly, 27 June 2015

International best practice: Human Rights Ombudsperson’s Regional Representation

 

My latest project is for the UNDP of Ukraine:

 To conduct a study analyzing existing international effective practices of Ombudsperson’s regional representation in the sphere of human rights protection, including:

  • Form and procedure of appointment or elections of regional Ombudspersons (Ombudsperson’s representatives) or other identical or equal human rights institutions;
  • Scope of authority (mandate) and responsibilities of regional Ombudspersons (Ombudsperson’s representatives), with a particular focus on (1) division of above authority and responsibilities between national and regional level and (2) cooperation between the national and regional levels;
  • Funding sources and modalities for regional Ombudspersons (Ombudsperson’s representatives) or other identical or equal human rights institutions or agents; and

 Based on the results of the study to develop recommendations for designing an effective organizational framework of Ombudsperson’s regional representation in Ukraine.

 Description of responsibilities / scope of work

 In order to draw a comprehensive picture of the diversity of types, mandates, roles, scope of responsibilities and functions of Ombudsperson’s regional representation and to develop recommendations for Ukraine, the research should perform the following steps:

Propose a selection of countries, where an institution of an Ombudsperson or an identical or equal human rights institution (branch offices or sub-offices or individual designated officials) effectively functions on the local level, whose practice can be taken stock of, proved relevant to Ukraine with potential for successful replication due to similar territorial size, human rights situation, etc.

Research of the available materials and practices concerning Ombudsperson’s regional representation (civic or other types) in at least 5 countries (demonstrating different forms of successful and effective regional network with comprehensive and efficient mechanisms of institution’s functioning). The research should look into different forms of the institute of regional ombudsperson’s representatives available in Unitarian and non-Unitarian states. The number of countries studied may be expanded, if additional relevant experiences are identified there.

Subject areas for the research on each country at the minimum should include (but not be limited to):

  • Form and procedure of appointment or elections of the Ombudsperson’s regional representations / independent and separate regional Ombudspersons / other identical human rights institutions or actors;
  • Mandate (scope of authority) of the Ombudsperson’s regional representations / independent and separate regional Ombudspersons / other identical human rights institutions (representation models);
  • Source of funding of Ombudsperson’s regional representatives / independent and separate regional Ombudspersons / other identical human rights institutions;
  • Relationship matrix of Ombudsperson’s regional representatives /independent and individual regional Ombudspersons /other identical human rights institutions within the framework of the Ombudsperson’s Secretariat /Office;
  • Applicable provisions of law stipulating the operation of the Ombudsperson’s regional representatives or of independent and separate regional Ombudspersons / other identical human rights institutions;
  • Institutional and actual strengths and weaknesses of the setup of institution of Ombudsperson’s regional representations / independent and individual regional Ombudspersons or of other identical human rights institutions;
  • Instruments, criteria and methods used by the Ombudsperson’s regional representatives or of independent and individual regional Ombudspersons / other identical human rights institutions in their work;
  • Model of relationship between the Ombudsperson’s regional representatives / independent and individual regional Ombudspersons or of other identical human rights institutions and governmental and non-governmental actors in the sphere of human rights protection.

Research methods will include but will not be limited to:

  • Literature review;
  • Internet research;
  • Contacts with relevant stakeholders in researched countries.

A Bill of Rights for the UK: a good or bad idea?

A Bill of Rights for the UK: a good or bad idea?

Pleased to be talking at a Human Rights Implementation Centre event and very grateful to Professor Rachel Murray in arranging this. I am going to talk about the government’s plans to “repeal” the Human Rights Act and to replace it with a British Bill of Rights. I will make time for questions at the end.

 

Contents

 

  • Introduction to the Human Rights Act
  • Some criticisms and previous proposals for change
  • The October 2014 proposals
  • What is likely now
  • Other sources of rights

 

The new Secretary of State for Justice, Michael Gove, is due to publish a consultation paper on exactly what that might mean for the UK (now not expected until next year).

 

What is being proposed and will it will enhance or degrade the rights we have in the UK?

 

  • Introduction to the Human Rights Act

 

First a quick summary of the Human Rights Act. Primarily it brings the ECHR and the ECtHR into domestic law and provides for remedies in the UK courts and tribunals.

 

The Human Rights Act 1998 came into force fifteen years ago and the Act continues to have a profound effect on domestic law, substantially strengthening the legal protection afforded to human rights in the United Kingdom.[1] Where citizens once had ‘negative’ liberties—no more than the residue of rights left over after the law had been obeyed—they now enjoy positive freedoms and the power to enforce them. The Human Rights Act has been used to hold the Government and public authorities to account in a multitude of contexts—preventing the indefinite detention of foreign terrorist suspects, broadening the ambit of procedural justice, recognizing the rights of transsexuals to marry someone of their original gender, protecting the right to freedom of speech, even when it offends, ensuring that the state does not retain the DNA records of innocent people. If it was ever a matter of doubt, it is now plain that the Human Rights Act can no longer be regarded as just another statute. Rather it places on an ever-speaking statutory basis an assumption that certain legal norms are fundamental and underpin all other statutory interpretation. Lord Justice Laws placed it in a category of ‘constitutional statutes’ which include the Magna Carta

 

The Human Rights Act does not allow courts to strike down legislation that violates fundamental rights. Instead, the Act strikes a careful balance between parliamentary sovereignty and judicial oversight that enables the courts only to issue a declaration of incompatibility where a legislative provision is incapable of being read compatibly with Convention rights. Ministers (and Parliament) make the final decision as to whether or not to amend legislation which has been held incompatible with the Convention. Governments usually respond by changing legislation. But they do not have to do so

 

The late Lord Bingham (one of our more thoughtful judges) summed up the position in his powerful and eloquent speech:

 

“I do not in particular accept the distinction between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.

 

“[It] is wrong to stigmatise judicial decision-making as in some way undemocratic. “

 

 

By the way: Human rights are good thing: 80 to 90% think that but 40% think that human rights are exploited or abused by bad people.

 

In any event, contrary to some press accusations, the application of the Human Rights Act by the judiciary has been cautious. The approach to section 2 of the Act, which demands that Strasbourg cases are ‘taken into account’ in interpreting Convention rights, illustrates the restraint with which the judiciary has approached its new powers. In an attempt to avoid being labelled judicial activists, the House of Lords and the Supreme Court have developed the ‘no more, no less’ approach to Strasbourg cases and arguably frustrated the creation of a progressive domestic rights jurisprudence on interpretation of Convention rights in the British context. It is necessary only to look at those decisions of the House of Lords and Supreme Court that have been re-considered by the Strasbourg Court to see that English courts regularly adopt a narrower interpretation of the Convention rights even than the long-stop Court in Strasbourg.

 

Amongst human rights advocates, there is a consensus that the Government ‘failed to explain the basic philosophy of the Human Rights Act to the people’.[2] As the Equality and Human Rights Commission found in its Human Rights Inquiry, there is a general lack of public awareness of the positive role that human rights can play in individual lives.

 

  • Some criticisms and previous proposals for change

 

Reform of the Human Rights Act has been under consideration almost since its inception. It was as far back as 2007 that former Prime Minister Gordon Brown published a Green Paper[3] and a statement[4] exploring the possibility of a British Bill of Rights as part of a wider programme of constitutional reform. The JCHR contributed to the debate by undertaking a formal inquiry into a Bill of Rights, which reported in August 2008.[5] It found that the case for a Bill of Rights had been made out, but emphasized that the Bill could not be a vehicle for diluting the protections of the Human Rights Act; rather, it should add to those rights already protected.

 

In March 2009, the Labour Government formally launched the consultation process into a Bill of Rights in the publication by the Ministry of Justice of its long-awaited Green Paper, Rights and Responsibilities: Developing our Constitutional Framework.[6] The Green Paper set out preliminary proposals for a ‘Bill of Rights and Responsibilities’, but the 2010 general election intervened before the consultation was completed. The Conservative Party went into the election with a commitment to repeal the HRA but the Liberal democrats wished to see it preserved. The founding document of the Coalition Government resolved this disagreement as follows:

 

“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”[7]

 

The Commission that was established reported at the end of 2012 but there was, however, no consensus on what, if anything, needed to change.[8] However there was concern by some members of the Commission that the debate in the Commission was moving away from the objectives set out in the Agreement towards a discussion of removing rights, and particularly towards withdrawing from the ECtHR.

 

Fury over the Human Rights Act reached fever pitch again as a result of the long-delayed legislation brought forward to give prisoners the right to vote in line with the decision of the European Court in Hirst v UK (No 2) in 2006.[9] The media and many politicians denounced the Convention and called for the United Kingdom to remove itself from the jurisdiction of the European Court. The Government partly responded by using its chairmanship of the Council of Europe to push on with further reforms of the Court to ‘rebalance’ its relations with national courts. This resulted in the “Brighton Declaration”[10] and in turn, two new protocols, the first of which, protocol 15, will impose (amongst other things) further restrictions on access to the Court and, might push the Court to be more “careful” in its judgments (see Chapter 9 for more details). Although the UK’s initial proposals for reform were watered down, pressure for reform has led to a wider ranging review of the long term future of the Court, the consequences of which are difficult to predict.

The judiciary has taken note of the political heat surrounding human rights law and recent domestic decisions from the Supreme Court and Court of Appeal suggest increasing judicial willingness to assert the power of the common law to resolve human rights claims. If the Human Rights Act is repealed, we can expect the courts to turn to other sources of protection for fundamental rights.

 

  • The October 2014 proposals

 

 

In October 2014, the day after their annual conference ended last year, the Conservative Party announced new and radical proposals.

 

“At the heart of the reform will be a new British Bill of Rights and Responsibilities that will restore common sense to the application of human rights in the UK. A draft of the Bill will be published for consultation before Christmas.

 

The Conservative proposals in more detail:

 

  • the repeal of the Human Rights Act;

 

  • the Bill of Rights will set out some specific limitations and exemptions to the rights currently enjoyed under the Human Rights Act. In particular:

 

  • to limit the “use of rights to the most serious cases” (presumably right to life, torture, slavery, freedom from arbitrary detention, fair trial and freedom of expression but not privacy, protest or anti-discrimination),

 

  • to prevent rights applying to the “British Armed forces overseas

 

 

3- “no one will be able to claim human rights to step outside the law”, the example used here in the paper is of travelers using the right to a home to challenge planning decisions;

 

In relation to the European Court of Human Rights

 

“Every judgement that UK law is incompatible with the Convention will be treated as advisory” and a new parliamentary procedure will be introduced to consider such judgments, which “will only be binding in law if Parliament agrees that it should be enacted as such”

 

Dominic Grieve said

 

“These proposals threaten to create domestic constitutional difficulties and to undermine our international reputation and influence for entirely illusory benefits.

 

“It ought to be obvious to the paper’s authors that such an outcome is impossible without destroying the Convention’s effectiveness. Why should a state subject to an adverse judgement comply with it if the UK can ignore its own? The proposal undermines entirely the principles that underpin international law. It represents a failure of ambition by the Conservative Party on the global promotion of human rights, and is contrary to the line we have previously maintained in government.”

 

The proposals have been condemned as unworkable by many lawyers in the UK, human rights charities and many others – including of course by the old and new leadership of the Labour Party. The Council of Europe itself responded to the proposals by stating:

 

“We take note of these proposals by the Conservative Party. We also take note they are not draft legislation. As they stand, the proposals are not consistent with the ECHR.”

 

Commentators have made the following observations on these:

 

  • They are based on some factual miss-statements of law: for example wrongly stating that the Strasbourg court has banned whole life sentences’ and suggesting that the Strasbourg court’s judgments are currently binding in national law;

 

  • It is inaccurate to suggest that British courts are bound by interpretations of Convention rights by the Strasbourg courts: section 2 is only a duty to have regard to them, and indeed, section 3(2) prevents courts from interpreting law compatibly with Convention rights as interpreted by the ECtHR if legislation expressly requires this;

 

  • The suggestion that the living instrument doctrine will be abolished – as a matter of domestic law – would have the odd and perverse effect that interpretation of the ECHR would be stuck in the 1950s when the Convention was drafted, so that situations which were not in contemplation at that time (such as legal recognition of same-sex relationships; or consideration of the legality of retaining DNA);

 

  • The suggestion that protection of rights would be limited to ‘the most serious cases’ begs the question of who decides what are ‘the most serious cases’:

 

  • The proposal to prevent rights applying to British Armed forces overseas

 

  • The suggestion that some criminals and suspected terrorists would lose their Article 2 and 3 rights in respect of removal to countries would be a breach of the European Convention for the Prevention of Torture, the UN Convention Against Torture and the ICCPR to allow a person to be sent out of the UK to another country if they are likely to be tortured in that other country.

 

  • If ‘no-one will be able to claim human rights to step outside the law’, there would be no mechanism in which a domestic court can test the compatibility of statutory provisions with human rights standards (in contrast to the present system where a court which considers that a statutory provision is incompatible with human rights standards can make a declaration to that effect). For example a law prohibiting gay sex (such as existed in Northern Ireland until the judgment in Dudgeon v UK (1981) 4 EHRR 149 would be unassailable in domestic law.

 

  • If – as the previous Conservative Secretary of State for Justice suggests – Britain would then withdraw from the Council of Europe, it would be the only country in Europe not to be a member other than Belarus, and the only country ever to withdraw from a human rights instrument which it had signed apart from Venezuela, and North Korea.

 

 

However perhaps some new rights:

 

  • Jury trial
  • Freedom of expression
  • ?

 

  • What is likely now

 

Times briefing for lawyers, last week on 2nd December

 

“The right to family life will be drastically curbed to stop foreign criminals and terrorists using it as a ploy to avoid deportation under a shake-up of human rights laws expected before Christmas.

 

Presumably a reference to the right to family life (art 8) which belongs also to the partner and children. Cases will still go to ECtHR, what happens when the Court finds a violation. Law needs to be changed but Parliament refuses – triggers new dispute and threats of withdrawal.

 

Judges will be urged (?) to give greater priority to public safety than to allowing criminals to remain with their families under a new UK Bill of Rights, The Times has learnt.

 

But in a radical shift of Conservative government policy, it is understood that the proposed legislation will maintain all key provisions of the European Convention on Human Rights and not suggest withdrawal from it as a last resort.

 

Two stages, consider Cameron’s position if after all these changes he then has to confront the ECtHR again – Daily Mail will not let this go.

 

Key changes will include enshrining in statute the sovereignty of parliament to legislate as a fundamental democratic protection against the European Court of Human Rights in Strasbourg. Where there is a clash, such as when the Strasbourg court ruled against the UK on prisoner votes, the UK will hold its ground.

 

Not sure what this means, HRA does not allow override and statute changes require a Bill to be passed in Parliament (section 10 and fast track power?)

 

Possibility of a constitutional court have power to decide that judgment of ECtHR or ECJ does not need to be complied with (like the German Constitutional Court). Maybe a role for an enhanced Supeme Court.

 

The bill will also say that the UK Supreme Court is supreme and judges are not bound by rulings of the Strasbourg court – a view that many senior judges have already started to adopt.

 

Could make clearer in HRA but no real difference

 

  • Other sources of rights

 

Scotland, Wales and Northern Ireland

 

The extent of protection for human rights in Scotland, Wales and Northern Ireland is different from that in England because although the Human Rights Act applies in the same way as in England, the devolution legislation also requires additional compliance with the ECHR. So, for instance, in Scotland, the Scotland Act states that an Act of the Scottish Parliament

 

“is not law so far as any provision of the Act is outside the legislative competence of the Parliament [if] it is incompatible with any of the Convention rights or with EU law”[11]

 

There are similar restrictions on the assemblies and executive in Wales and in Northern Ireland. The repeal of the Human Rights Act itself would not change these provisions. If they remained in place then people in those jurisdictions would have different (more) rights in relation to the acts of the devolved administration (including most public services, including the police in Northern Ireland and Scotland) compared with non-devolved matters like immigration or defence.[12] Where these provisions did not apply – in England – people would have no such rights regardless of the nature of the authority that violated them. Amendments to these devolution provisions require the consent of the relevant devolved Parliament or Assembly.[13]

 

The situation in Northern Ireland is not only complicated by the law creating the devolution settlement (see above) but also because of the “Good Friday Agreement”. The settlement is an international treaty binding the UK and the Republic of Ireland and would require the consent of both to vary it, not least the political parties in Northern Ireland. The agreement states:

 

“The British government committed to incorporate the European Convention of Human Rights (ECHR) into the law of Northern Ireland and to the establishment of a Northern Ireland Human Rights Commission.”

 

The situation is more complicated because alongside this requirement was a requirement to develop a Bill of Rights for Northern Ireland, going beyond the provisions of the ECHR. The Northern Ireland Human Rights Commission consulted widely on a draft Bill and published their final draft in 2008 but there was no political consensus on their proposals and no progress has been made.

 

 

EU Charter of Rights

 

The law of the European Union itself protects both equality and human rights, particularly the right to be free from discrimination and the right of EU citizens to move freely with the EU. Even in the absence of the HRA, controversial issues such as the deportation of a citizen of another EU state who has committed a crime in the UK but has family or other ties here will remain. EU law has a significantly higher status in UK law than the ECHR and the European Communities Act 1972 ensures that that European law must be given preference over UK domestic law if there is a clash.

 

The UK Parliament could repeal that whole provision or could enact a particular law in defiance of a decision of the UK courts applying EU law but compliance action by the EU Commission would be likely as would an unfavourable judgment from the Court of Justice of the European Communities. How such a strategy would play out given the wider issues of the proposed renegotiation and the promise of an in/out referendum by the Conservative Party is difficult to predict.

 

The Charter of Fundamental Rights became a more significant part of EU law as a result of the Lisbon Treaty and the rights contained include all of those in the ECHR as well as several other important rights. To the extent that a person’s rights in the UK engage EU law then the Charter rights also come into play but not otherwise. EU jurisdiction is likely to be engaged on issues of free movement, benefits in the UK for EU citizens, EU directive on anti-discrimination and many other similar issues. Unless and until there are changes to the EU treaties or the UK negotiates a special position for itself within those treaties, rights very similar to those in the ECHR on remain in force, at least partially.[14]

 

The EU intends to accede to the ECHR itself in due course making the EU institutions subject to the ECHR and to the Court’s jurisdiction and as a result individuals will be able to take cases to the Strasbourg Court if those institutions have violated the rights in the ECHR and Article 4(1) of the Draft Agreement for accession provides for the EU to be “co-respondent” in cases before the ECtHR in which a member state is alleged to have breached the Convention in implementing EU law.   The UK will obviously have a say in this accession process and has a right of veto over it.

 

Family life of EU citizens resident in UK subject to deportation as a result of a criminal offence

 

Data protection and privacy issues

 

UN Treaties

 

The UK government has ratified and is bound by as a matter of international law several other human rights treaties which include very similar rights to those contained in the ECHR. These include, for instance, the United Nations’ International Covenant on Civil and Political Rights and the Convention against Torture. The UK has not ratified the special procedures for these treaties which would allow individuals to make complaints and to obtain opinions on the violations of the treaties by the relevant UN committee. However UK compliance with the treaties is assessed in two ways. First, the UK has a “periodic reporting duty” and every five years or so will have to submit a detailed written report to the relevant UN committee on its record and will be examined by experts in a public hearing who will subsequently publish their “concluding observations” on the UK’s compliance record.

 

Secondly, the UN’s “Universal Periodic Review” process assesses the UK’s record in relation to all of the UN’s treaties once every four and a half years. The UK has to produce a written (twenty page) report on how it assesses its compliance with these treaties, the UN High Commissioner on Human Rights draws up a summary of the issues and summarises any responses and reports by NGOs. The UK then has to submit to a three hour examination by the 47 or so members of the UN Human Rights Council.

 

The UK has ratified the individual complaints procedure to two UN treaties – the Convention for the Elimination of All forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of People with Disabilities (CRPD). These mechanisms have been rarely used.

 

The Optional Protocol to the Convention Against Torture (ratified by the UK) requires a systematic national institutional inspection and protection regime to ensure protection from torture and inhuman and degrading treatment and punishment. The system in the UK is based on a number of pre-existing institutions like the Prisons Inspector taking on this role.

 

The Council of Europe also has other human rights treaties, including the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (ratified by the UK). This convention created a committee which regularly inspects places of detention and then produces a written report on overall compliance of each member state.

 

Apart from the mechanisms described above such treaties are sometimes taking into account by the UK courts in making decisions even though they are not incorporated into domestic law and very occasionally they can be basis of a challenge to government policies.[15]

 

Obviously if the UK did not withdraw from these provisions it would be in breach of them if, say, if deported people to country that were likely to torture them.

The Common Law

 

If the HRA was repealed but not replaced the courts would still be able to consider the provisions of the Convention in cases and the ECHR could still have a (weakened) role in protecting human rights.

“Prior to the entry into force of the HRA, domestic courts developed a common law doctrine of constitutional rights. Such rights ultimately had (and still have) to yield in the favour of clearly-incompatible Acts of Parliament, but would otherwise shape (in sometimes startling ways) the interpretation of legislation and thereby act as constraints upon the executive. That doctrine has not gone away. It remains part of domestic law, albeit that the HRA has, for the last several years, largely overshadowed it and reduced the need to rely upon it. Repealing the HRA would not, therefore, yield a wholly blank page: the common law’s recognition of fundamental rights would remain.

Nor should it be assumed that repeal of the HRA would bring to the fore a version of the common-law constitutional-rights doctrine exactly the same as that which was centre-stage pre-HRA. The relationship between the HRA and the common law has been (and, for now, remains) a two-way one.  In particular, the common law has absorbed both rights (e.g. privacy) and techniques (e.g. privacy) from the HRA and the ECHR. Repealing the HRA would not therefore guarantee the removal from domestic law of the rights and techniques to which it has given prominence in recent years. It is far more likely that we would be left with a common law of human rights that turned out to have evolved considerably under the HRA’s influence.

Of course, if Parliament is sovereign, then it could in theory choose not only to repeal the HRA but to direct courts as to how (or even whether) they could rely upon the common law in order to protect human rights. But such a legislative injunction is as unlikely as it would be unwise, since it would set courts and politicians on a collision course whose outcome would be unpredictable but almost certainly messy.”[16]

However Professor Conor Gearty has recently criticised the extent that the common law can protect rights in the UK.

 

“Common law myths?
Gearty criticised the myth that human rights had their origin in the ‘common law’. He also doubted what he termed ‘the myth of Whiggish inevitability’, according to which ‘everything is going to be fine because of a trajectory that tends towards perfection’.

The common law is a centuries-old system that allows judges in common law countries, such as the UK and Australia, to create ‘judge-made law’ in addition to laws made by Parliament. Disagreeing with a speech by Lord Neuberger, the current President of the UK Supreme Court, Gearty reminded his audience that common law judges had historically opposed trade unions and racial and sexual equality.”[17]

 

The most important pre-Act uses of the Convention were as follows:

 

(a)     as an aid to the construction of legislation in cases of ambiguity, for example in R v Secretary of State for the Home Department, ex p Brind.[18] There is a presumption that Parliament does not intend to act in breach of international law (and the specific treaty obligations the UK Government has committed to on behalf of the Crown), so where there is ambiguity in a statute the courts will construe the law consistently with these international treaty obligations;

(b)     to establish the scope of the common law where it is developing and uncertain, or where it is certain but incomplete. For example, in Derbyshire County Council v Times Newspapers Ltd[19] Article 10 informed the House of Lords’ decision that a local authority could not bring an action for libel as it would offend against the freedom of expression protections in the Convention;

(c)     to inform the exercise of judicial (as opposed to administrative) discretion. For example, in R v Khan[20] the House of Lords held that a trial judge may have regard to the Convention as a material consideration in exercising the discretion conferred by section 78 of the Police and Criminal Evidence Act 1984 as to whether to exclude evidence; and

(d)     to inform decisions on EU law taken by the domestic courts. For example, in Johnston v Chief Constable of the Royal Ulster Constabulary[21] the European Court of Justice (ECJ) took Articles 6 and 13 into account in determining that the applicant did not have an effective remedy in her sex discrimination case. The ECJ has declared that the general principles of EU law include the protection of fundamental rights. This means that not only should English judges have regard to the Convention when dealing with questions of fundamental rights in EU law, but also that ECJ judgments involving fundamental rights are to be regarded as authoritative when domestic courts grapple with questions of EU law.[22]

 

These techniques continue to be important, and are still used in relation to other international treaties that have not been incorporated into English law. Furthermore, since the Human Rights Act came into force judges have made decisions on the basis of the common law rather than on the basis of the ECHR, even though using the ECHR might have led to the same result. In practice the ECHR has encouraged the courts to adopt certain principles protecting rights but the removal of the HRA will not lead to these important cases being overturned.[23]

 

 

 

 

 

[1] Much material extracted from Chapter 1, The Blackstone’s Guide to the Human Rights Act, OUP, 2015

[2] JCHR, A Bill of Rights for the UK? 29th Report (2007–2008), HL 165-I, HC 150-I, vol II, Klug Ev 1.

[3] The Governance of Britain (Cm 7170, 2007).

[4] Prime Minister’s statement on constitutional reform, HC, col 819 (3 July 2007).

[5] JCHR, A Bill of Rights for the UK? 29th Report (2007–2008), HL 165-I, HC 150-I.

[6] Cm 7577, 2009.

[7] May 2010.

[8] The Commission on a Bill of Rights’ report – A UK Bill of Rights? – The Choice Before Us, 18 December 2012, Ministry of Justice.

[9] (2006) 42 EHRR 41.

[10] High Level Conference on the Future of the European Court of Human Right: Brighton Declaration, 20th April 2012, Council of Europe.

[11] Section 50, section 57 adds a similar restrictions to the acts of the executive.

[12] See Professor Aileen McHarg, “Will devolution scupper Conservative plans for a “British” Bill of Rights”, UKhumanrightsblog, 2nd October 2014.

[13] The “Sewell convention” provides that the Westminster Parliament may not legislate for devolved matters without the consent of the devolved legislature affected. In practice the process of consultation will be with the devolved administration and is also required for any constitutional changes that increase or reduce the devolved executive or legislative powers. However this is “only” a convention and the Westminster Parliament could ignore it. See www.devolutionmatters.wordpress.com or www.gov.uk/government/policies/maintaining-and-strengthening-the-scottish-devolution-settlement. However the Smith Commission’s Report, which sets out the details of the proposals to be implemented by the Westminster Parliament following the no vote (published 27th November 2014) recommended that this convention is put on a statutory footing.

 

[14] See “The Charter of Fundamental Rights and Freedoms”, Hugh Southey QC, The Public Law Project, 20th October 2014.

[15] The EHRC used judicial review to challenge the guidance given to the intelligence service when dealing with other law enforcement agencies that might use torture and based its arguments on the UN Convention Against Torture.

[16] “Repealing the Human Rights Act: What might lie ahead.”, Mark Elliot, 30th September 2013, Publiclawforeveryone.com. See also “UK Constitutionalism on the march.” See also Lady Hale (Deputy President of the UK Supreme Court), lecture to the Constitutional and Administrative Law Bar Association Conference, 12th July 2014.

[17]  Corbishley Lecture at the London School of Economics, November 2014.

[18] [1991] 1 AC 696.

[19] [1992] QB 770.

[20] [1996] 3 WLR 162.

[21] [1987] QB 129.

[22] Extract from the Blackstone’s Guide to the Human Rights Act, OUP, 2015.

[23] See “Common law rights”, Michael Fordham QC, Blackstone Chambers, paper for the Public Law Project Judicial Review Conference, 18th October 2010. See also “If the Human Rights Act were repealed, could the common law fill the void?”, Professor Brice Dickson, Oxford Human Rights Hub, 27th November 2013 and “The Constitutional Significance of Statutory Repeal: How far can Parliament Turn the Clock Back?”, Scott Stephenson, UK Constitutional Law Blog, 7th March 2013.

Article 5 bail and trial within a reasonable time: shorts power points as text

PRESUMPTION OF LIBERTY
Detention, no matter how short, must be justified by the authorities (Idalov v. Russia [GC]; Tase v. Romania; Castravet v. Moldova; Belchev v. Bulgaria).
Pre-trial detention of minors only last resort; it should be as short as possible and minors should be kept apart from adults (Nart v. Turkey; Güveç v. Turkey).
Period to be considered
Begins on the day the accused is first in custody and ends on the day when the charge is determined (Solmaz v. Turkey; Kalashnikov v. Russia; Wemhoff v. Germany).
A person convicted is not regarded as being detained under 5(1)(c), but by Article 5 § 1 (a), which authorises deprivation of liberty after conviction (Belevitskiy v. Russia; Piotr Baranowski v. Poland; Górski v. Poland).

Both rights apply independently
Authorities must bring accused to trial within a reasonable time and grant provisional release pending trial.
Detention is justified only if in the public interest outweighs the presumption of liberty.
Judges responsibility that pre-trial detention does not exceed a reasonable time. Must, regard to presumption of innocence, examine the facts for or against detention and, must set out reasons in decisions.
Basis of continued detention
Reasonable suspicion that person committed offence is necessary condition.
Over time this not enough longer and court must decide whether other grounds given by continue to justify detention.
Continuing duty to review detention and to release when no longer justified.
No fixed time depends on each case (McKay v. the United Kingdom; Bykov v. Russia; Idalov v. Russia).

Criteria for detention
Arguments for and against release must not be “general and abstract” (Boicenco v. Moldova; Khudoyorov v. Russia), but must based on the facts and personal circumstances to justify detention (Aleksanyan v. Russia).
Quasi-automatic decisions about detention unlawful (Tase v. Romania).
Burden of proof never be on the detained person to demonstrate reasons for release (Bykov v. Russia [GC]).

Only reasons for refusing bail
risk that accused will not turn up for trial or
risk that the accused, if released, would:
prejudice the administration of justice;
commit further offences, or
cause public disorder
(Tiron v. Romania; Smirnova v. Russia; Piruzyan v. Armenia).

Danger of absconding (1)
Not only based on severity of sentence (Panchenko v. Russia); risk of absconding involves:
character and morals,
home,
occupation,
assets,
family ties and
other links with the country (Becciev v. Moldova).
Absence of residence not automatically a danger of flight (Sulaoja v. Estonia).
Danger of absconding (2)
Danger of flight decreases with the passages of time (Neumeister v. Austria).
Severity of the sentence faced is relevant but the gravity of the charges cannot by itself justify long periods of detention (Idalov v. Russia [GC]; Garycki v. Poland; Chraidi v. Germany; Ilijkov v. Bulgaria).
Strength of the evidence may be a serious indication of guilt but cannot alone justify lengthy detention (Dereci v. Turkey).
Obstructing proceedings
Risk of obstructing proceedings has to be supported by evidence (Becciev v. Moldova).
Risk of interfering with witnesses more powerful initial stages of the proceedings (Jarzynski v. Poland).
Risks diminish with time as inquiries and verifications are completed and statements taken. (Clooth v. Belgium).

Repetition of offences
The danger of further offences must be a plausible and detention justified, in the light of circumstances, past history and the person.
Previous convictions a ground for fear that the accused might commit new offence (Selçuk v. Turkey; Matznetter v. Austria).
However it cannot be concluded merely from the lack of a job or a family that a person will commit new offences (Sulaoja v. Estonia).
Preservation of public order
Certain offences may give rise to risk of disorder justifying detention and may be taken into account if law recognises the idea of disturbance to public order.
Must be based on facts showing that release would actually disturb public order.
Detention can only continue if public order threat continues remains actually threatened (Letellier v. France; I.A. v. France; Prencipe v. Monaco; Tiron v. Romania).

Alternatives to detention
When deciding whether a person should be released or detained, the court must consider alternative measures (Idalov v. Russia [GC]).
The right to “trial within a reasonable time or to release pending trial” and “release may be conditioned by guarantees to appear for trial” (Khudoyorov v. Russia; Lelièvre v. Belgium; Shabani v. Switzerland).

Bail: financial securities (1)
Must be designed to ensure the accused appearing at the hearing.
The amount must be assessed by reference to the accused, his or her own assets and the relationship with the person who has offered to provide the security. In other words whether security will act as a deterrent to the risk of absconding (Mangouras v. Spain [GC]; Neumeister v. Austria).

Bail: financial securities (2)
Bail required only for as long as reasons justifying detention prevail (Muşuc v. Moldova; Aleksandr Makarov v. Russia).
If the risk of absconding avoided by bail or other guarantees, the accused must be released (Vrenčev v. Serbia).
Court must take as much care in fixing bail deciding whether or not to continue detention (Piotr Osuch v.Poland; Bojilov v. Bulgaria; Skrobol v. Poland).