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HUMAN RIGHTS AND EQUALITY: Same issues, different lens?

Pre-history

Equality is not much mentioned before 1940s, e.g. nothing much in the UK’s Magna Carta or Bill of Rights of 1689.

The US Declaration of Independence:

“We hold these Truths to be self-evident, that all Men are created equal…” (1776)

French Declaration of the Rights of Man:

“Men are born and remain free and equal in rights.” (1789)

1948 on

UN Charter preamble:

“reaffirm faith in ….  the equal rights of men and women and of nations large and small”

“promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”

Universal Declaration of Human Rights (the first proper international human rights treaty), article 1:

‘all human beings are born equal in dignity and rights.’

Article 2 – ‘ Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status…’

Article 7All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Establishes the principle of equality as “the” principle of human rights. Every human rights treaty makes inequality in the respect for other rights in that treaty a violation in itself (see for instance Art 14 of the ECHR).  Human rights in the UK acknowledged (rather than respected) by:

ICCPR (ratification by UK and the starting periodic reporting process 1976)

Article 2  – Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 3  – The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant
Article 26 – All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

ICESCR

Article 2(2) –  The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 3 – The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

 

CRC (1989)

Article 2
  1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
  2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

Anti discrimination treaties – CERD, CEDAW & CRPD

Then CERD (1965), CEDAW (1979) and CRPD (2006).  These were human rights treaties designed to protect particular groups which should have been protected by the other treaties but were not.  Interesting to see that race came before gender.

Questions remain as to whether (older) age should have specific protection or not.  cf. CRC

Different issues (the dominance of religious doctrine in many countries) has resulted in the absence of a treaty protecting people from discrimination on the basis of their sexual orientation.  These issues, particularly the conflict with religious doctrine, are issues in the UK (same sex marriage, gay priests etc).

Religious freedom protected (see art 9) but not freedom from religious discrimination.  Issues here include wearing religious symbols and the privileged position of the Church of England and how far state laws should trespass through the temple door.

 

Beneficiaries – often, those most at risk of human rights abuses also happen to share a protected characteristic.

Differences

 

  • Human rights is more than equalities: freedom from torture, inhuman and degrading treatment, fair trials, privacy, freedom of expression.

Although the UDHR and ECHR responded to the atrocities of the 2nd WW and that it is true that the victims of Nazism also shared protected characteristics: Jewish people, Gypsies, gay people their experience cannot be reduced to merely less favourable treatment or difference in treatment. It was complete violation and negation of dignity and all human rights.

 

  • Public/private spheres – human rights governs primarily the relationship between the State and the individual as they are binding on public authorities Not really about the duties we owe each other as individuals – except where horizontal duties can be stretched to fit..
  • Equalities governs the relationship between private individuals as well as between the State and the individual. National equality law usually regulates activities in all sectors: private, public, voluntary, clubs and associations, trades unions and even political parties. It is about the duties we owe each other as individuals, (albeit where the relationship is a regulated one e.g. employer/employee, landlord/tenant, service provider/customer and so on).

ECHR

 

Article 3

Race discrimination may constitute degrading treatment. In East African Asians v UK the applicants were British passport holders but had been refused permission to take up residence in the United Kingdom. The ECmHR considered that the discriminatory immigration legislation constituted an interference with their human dignity which amounted to degrading treatment in the sense of Article 3 of the Convention.

 

Article 14

The importance of Article 14

Affording equality of respect to all persons, treating like cases alike, and treating unlike cases differently, are axioms of rational behaviour in a society which treats each individual as having fundamentally equal worth. Equality in this sense is one of the building blocks of democracy. The non-discrimination guarantee contained in Article 14 is therefore a key provision of the Convention.

ARTICLES 2, 3, 4 and 8 Positive obligations

 

Recent case law has established that the state has a positive obligation to ensure that systems of legal protection—such as the criminal justice system—operate in such a way as to guarantee equal protection of the law to specific groups, such as women or racial minorities. Where the evidence suggests inadequate domestic remedies, and a system which betrays an overall unresponsiveness to gender or racially based aggression, failure to investigate in a specific case may amount to violation of Article 14, read with Articles 2 or 3.

In Eremia v Moldova the state’s inadequate approach to domestic violence amounted to condoning discrimination against women and was held to breach Article 14. This developing approach to positive obligations may mean more focus on the obligation upon signatory states to ‘secure’ equal enjoyment of the other Convention rights.

Key principles of human rights law:

  • states have an obligation to protect people from human rights violations;
  • this obligation particularly applies to the most vulnerable and must be complied with without discrimination;
  • any serious human rights abuses must always be effectively investigated; and
  • the state must ensure that the people responsible for upholding the law including police officers and other law enforcement officials are themselves held to account if they have violated the rights of others.

Convention Principles and the relevant jurisprudence of the European Court of Human Rights

ARTICLE 1

Obligation to respect Human Rights

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

This provision imposes a positive duty on all member states to ensure that the substantive rights in the ECHR are properly respected.  This requires the state to ensure that all public bodies and government agencies comply with the rights in the ECHR and that there are laws, institutions and processes to protect people from the actions of third parties.

The Committee of Ministers of the Council of Europe has produced guidelines for ensuring respect for human rights and for eradicating impunity for serious human rights violations:[1]

“For the purposes of these guidelines, “serious human rights violations” concern those acts in respect of which states have an obligation under the Convention, and in the light of the Court’s case law, to enact criminal law provisions. Such obligations arise in the context of the right to life (Article 2 of the Convention), the prohibition of torture and inhuman or degrading treatment or punishment (Article 3 of the Convention), the prohibition of forced labour and slavery (Article 4 of the Convention) and with regard to certain aspects of the right to liberty and security (Article 5, paragraph 1, of the Convention) and of the right to respect for private and family life (Article 8 of the Convention).”[2]

In practice and in the context of this opinion, the Guidelines require:

“States should take all necessary measures to comply with their obligations under the Convention to adopt criminal law provisions to effectively punish serious human rights violations through adequate penalties. These provisions should be applied by the appropriate executive and judicial authorities in a coherent and non-discriminatory manner.”[3]

“States should establish and publicise clear procedures for reporting allegations of serious human rights violations, both within their authorities and for the general public. States should ensure that such reports are received and effectively dealt with by the competent authorities.

States should take measures to encourage reporting by those who are aware of serious human rights violations. They should, where appropriate, take measures to ensure that those who report such violations are protected from any harassment and reprisals.”[4]

“States should also establish mechanisms to ensure the integrity and accountability of their agents. States should remove from office individuals who have been found, by a competent authority, to be responsible for serious human rights violations or for furthering or tolerating impunity, or adopt other appropriate disciplinary measures. States should notably develop and institutionalise codes of conduct.”[5]

“Combating impunity requires that there be an effective investigation in cases of serious human rights violations. This duty has an absolute character.

The right to life (Article 2 of the Convention)

The obligation to protect the right to life requires, inter alia, that there should be an effective investigation when individuals have been killed, whether by state agents or private persons, and in all cases of suspicious death. This duty also arises in situations in which it is uncertain whether or not the victim has died, and there is reason to believe the circumstances are suspicious, such as in the case of enforced disappearances.

 

The prohibition of torture and inhuman or degrading treatment or punishment (Article 3 of the Convention)

States are under a procedural obligation arising under Article 3 of the Convention to carry out an effective investigation into credible claims that a person has been seriously ill-treated, or when the authorities have reasonable grounds to suspect that such treatment has occurred.

The prohibition of slavery and forced labour (Article 4 of the Convention)

The prohibition of slavery and forced labour entails a procedural obligation to carry out an effective investigation into situations of potential trafficking in human beings.

The right to liberty and security (Article 5 of the Convention)

Procedural safeguards derived, inter alia, from the right to liberty and security require that states conduct effective investigations into credible claims that a person has been deprived of his or her liberty and has not been seen since.

The right to respect for private and family life (Article 8 of the Convention)

States have a duty to effectively investigate credible claims of serious violations of the rights enshrined in Article 8 of the Convention where the nature and gravity of the alleged violation so requires, in accordance with the case law of the Court.”[6]

Articles 2, 3, 4 and 8 of the European Convention on Human Rights impose positive obligations to protect the substantive rights – whoever is the likely perpetrator.  This positive duty particularly requires states to investigate allegations of torture, inhuman or degrading treatment or punishment or deaths that may have occurred in breach of the Convention even where such treatment may have been caused by the police or other law enforcement officials and a duty to investigate will occur when police officers use excessive force or unnecessarily inflict serious injuries.

The duty to protect people from violations of human rights and to investigate any harm done is not always properly respected and, historically, law enforcement officials have too often failed to protect vulnerable groups.  The state’s obligations obviously extends to women subjected to domestic violence and sexual assaults, children abused by their carers or others, people with disabilities (especially those with learning difficulties and those resident in institutions), ethnic minorities (especially Roma people), lesbian, gay, bisexual and transgendered people and others.  These failures by the state violate the rights in ECHR and the discriminatory nature of these failures breaches Article 14.

 

Resources

The Committee of Ministers of the Council of Europe Guidelines for ensuring respect for human rights and for eradicating impunity for serious human rights violations

https://wcd.coe.int/ViewDoc.jsp?id=1769177

ECHR FACTSHEETS

Race

http://www.echr.coe.int/Documents/FS_Racial_discrimination_ENG.pdf

Roma

http://www.echr.coe.int/Documents/FS_Roma_ENG.pdf

Domestic violence

http://www.echr.coe.int/Documents/FS_Domestic_violence_ENG.pdf

Violence against women

http://www.echr.coe.int/Documents/FS_Violence_Woman_ENG.pdf

Slavery and forced labour

http://www.echr.coe.int/Documents/FS_Forced_labour_ENG.pdf

Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)

http://www.coe.int/t/dghl/standardsetting/convention-violence/default_en.asp

Opinion of the Commissioner for Human Rights concerning Independent and Effective Determination of Complaints against the Police

https://wcd.coe.int/ViewDoc.jsp?id=1417857

UK College of Policing: Guide to investigations

http://www.app.college.police.uk/app-content/investigations/introduction/

Guide to effective investigations for National Human Rights Institutions

http://www.asiapacificforum.net/support/files/investigations-manual-for-nhris

UN Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

http://www.ohchr.org/EN/ProfessionalInterest/Pages/EffectiveInvestigationAndDocumentationOfTorture.aspx

Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?

http://ejil.oxfordjournals.org/content/21/3/701.full

[1] Adopted 30th March 2011.

[2] II, paragraph 2.

[3] III, paragraph 1.

[4] III, paragraph 4 and 5.

[5] III, paragraph 7.

[6] V, paragraph 1.

Strategic Litigation: some notes and examples

Strategic Litigation:  John Wadham


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

What is Strategic Litigation?

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

 

How is it used?

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

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

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

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

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

 

 

Challenges

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

Some examples

       

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

GENDER

Tysiac v Poland

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

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

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

Points:

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

 

Abdulaziz, Cabales and Balkandali v. the United Kingdom

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

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

Points:

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

 

Gegidze v Georgia

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

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

 

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

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

Points:

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

North v Dumfries and Galloway Council (UK)

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

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

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

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

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

Points:

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

 

 

DISABILITY

Coleman v Attridge

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

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

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

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

 

Points:

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

Stott v Thomas Cook

 

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

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

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

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

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

 

The Urgent Need for International Reform

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

Points:

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

 

 

 

Dordevic v Croatia

 

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

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

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

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

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

Campeanu v Romania and Malacu v Romania

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

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

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

 

 

 

 

RELIGION

 

Eweida and Chaplin and others

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

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

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

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

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

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

Points:

  • Interesting “conflict of rights” case

 

SEXUAL ORIENTATION

Preddy v Bull

 

Discriminating on the grounds of sexual orientation in the UK.

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

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

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

Points:

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

 

Duncan Lustig-Prean and John Beckett v UK

 

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

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

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

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

 

Points:

  • Unusual success, courts reluctant to interfere with armed services

 

Kaos v Turkey

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

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

TRANSGENDER

 

Goodwin v UK

 

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

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

Points:

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

 

H v Finland

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

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

Points:

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

 

 

NATIONALITY AND ETHNIC ORIGIN

A and Others v UK

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

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

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

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

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

Points:

  • Arguing for greater security powers

 

Catan and 27 Others v Moldova and Russia

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

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

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

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

Points:

 

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

Cazacliu v Romania

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

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

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

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

CONCLUSION

 

Substantive Difficulties in Strategic Litigation

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

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

Administrative Difficulties in Strategic Litigation

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

Selecting cases

Hate speech and human rights

Introduction

ECHR: Three categories of rights

 

  1. Absolute, limited, and qualified rights

 

In broad terms, Convention rights may be placed into three categories: ‘absolute’ rights capable of no derogation; rights which are expressly or impliedly limited; and rights which are expressly qualified. This is not a precise taxonomy but a way of understanding the nature and structure of the Convention rights.

 

(a)  Absolute rights

Absolute rights under the Convention include the right to life under Article 2 (except in respect of deaths resulting from lawful acts of war), the prohibition on torture under Article 3, the prohibition on slavery and servitude under Article 4(1), and the right not to be subjected to retrospective criminal offences under Article 7(1). No derogations from these articles are permitted under Article 15 and there are no circumstances in which infringements of these rights can be justified in the public interest.

 

(b) Limited rights

Limited rights include Article 5 (right to liberty and security of the person), Article 6 (fair trial rights), Article 12 (right to marry and found a family), Protocol 1, Article 2 (right to an education), and Protocol 1, Article 3 (right to free elections). These rights can be restricted in explicit and finite circumstances as set out in the article itself, or may be subject to restrictions implied by the ECtHR.

 

(c) Qualified rights

The ‘qualified rights’ are those that include a general qualification provision in the second paragraph of the article. They are the rights that most obviously raise the conflicts with the overall interests of society or the rights of others—for example, the right to respect for private life (Article 8), freedom of thought, conscience, and religion (Article 9), freedom of expression (Article 10), freedom of assembly and association (Article 11), and the right to the enjoyment of possessions (Protocol 1, Article 1).

 

‘Qualified rights’ are usually set out in two parts in the text of the Convention. The first paragraph of the article sets out the substantive right, and it is then qualified in the second paragraph. The precise terms of the limitations vary (contrast, for example, Article 10(2) with Article 8(2)), but a restriction will be compatible with the Convention only if it meets the general principles applicable to all restrictions on rights, namely it is ‘in accordance with the law’; the interference is directed towards an identified legitimate aim; and the aim is ‘necessary in a democratic society’ (which encompasses the test of ‘pressing social need’ and proportionality).

 

  1. Positive obligations

 

The principal purpose of the Convention is to protect individual rights from infringement by states, and this is achieved by the imposition of so-called ‘negative’ obligations on the states, which require them to refrain from interference with the rights in question. However, the wording of certain articles also imposes positive duties on the state, such as the obligation under Protocol 1, Article 3 to hold free elections. In addition to these express positive obligations, the ECtHR has recognized that there is a broader need for positive steps to be taken by the state to provide the legal or institutional structures or resources to protect human rights—for example, to provide laws which prevent private parties from infringing individual rights, to provide proper institutional protection from domestic violence, or to provide free legal assistance in criminal cases under Article 6(3)(c), or to enable access to institutions to provide education under Protocol 1, Article 2.

 

Articles 2, 3, 4 and 8 of the European Convention on Human Rights impose positive obligations to protect the substantive rights – whoever is the likely perpetrator.

 

The duty to protect people from violations of human rights and to investigate any harm done is not always properly respected and, historically, law enforcement officials have too often failed to protect vulnerable groups.  The state’s obligations obviously extends to women subjected to domestic violence and sexual assaults, children abused by their carers or others, people with disabilities (especially those with learning difficulties and those resident in institutions), ethnic minorities (especially Roma people), lesbian, gay, bisexual and transgendered people and others.  These failures by the state violate the rights in ECHR and the discriminatory nature of these failures breaches Article 14.

 

Not only is the state required to adopt an adequate system of law to deter and punish individuals guilty of violating the Convention rights of others, but it is also recognized that the police and other relevant public bodies can be under a positive obligation to take reasonable operational measures to prevent a violation of individuals’ rights.

 

When determining whether or not a positive obligation exists, the ECtHR will have regard to ‘the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention’.

 

Freedom of expression

Freedom of expression: “constitutes one of essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.” Handyside v UK para 49

Scope of the right

 

Article 10 encompasses the freedom to hold ideas and incorporates the right to receive opinions and information, as well as the right to express them. Article 10(1) encompasses the right to communicate or to express oneself in any medium. Words, pictures, images, emblems and actions intended to express an idea or to present information (such as public protest, demonstration, film, or symbolic acts such as flag-burning) can constitute expression.

Three broad types of expression have been held to attract the protection of Article 10:

(a)        political expression;

(b)        artistic expression; and

(c)        commercial expression.

 

As the ECtHR has emphasized, Article 10(1) does not apply solely to certain types of information or ideas, or forms of expression, and thus the categories of protected expression are not closed.

 

Political expression is broadly defined to include comment on a matter of general public interest. Public interest includes legitimate, robust comment on public figures. Political expression generally receives greater protection than the other forms, though there is no express theoretical basis for this distinction.

 

Commercial expression also attracts the protection of Article 10(1). In particular, commercial speech sometimes also raises matters of legitimate public debate and concern. However, statements made for purely commercial reasons are frequently considered not to contribute to a debate on the public interest and fall ‘outside the basic nucleus protected by the freedom of expression’.

 

The objective of the expression will be critical to determining whether any restriction upon it is proportionate. For example, it will be harder to justify restrictions on racist speech that is intended to inform rather than offend.[1] The ECtHR will also take into account the medium of the publication when assessing whether an interference is proportionate. Television will have greater immediacy and impact than other forms of media, for example. The nature of the expression may also affect the protection given to it by the ECtHR. In Donaldson v UK the Court considered that national authorities were best placed to determine whether certain badges worn by prisoners posed a threat to prison order because the domestic authorities were in a better positive to understand their meaning.[2]

 

Margin of appreciation

 

The ECtHR has claimed that in all cases, it exercises strict supervision of the margin of appreciation because of the crucial importance of the Article 10 right.[3] However, given the cultural sensitivity of much expression, the ECtHR in fact has frequent recourse to this concept in order to defer to the courts of individual Member States, which are closer to the interests to be balanced in any individual Member State. In particular, in cases involving public morals[4] or commercial speech[5] the breadth of the margin is wider than that pertaining in cases involving an issue that affects the general interest, even where a criminal penalty is at issue.[6]

 

The ECtHR set out its reasons for applying a margin of appreciation in relation to cases raising questions of morality in the early case of Handyside v UK. The Court stated:

 

. . . it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.[7]

 

Hate speech

However the Court stated “it is particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations” Jersild v Denmark para 30

In a case which involved the conviction of Jens Olaf Jersild, a Danish journalist, for aiding and abetting in the dissemination of racist statements in a televised interview he had conducted. The statements in question were uttered by members of an extreme right-wing group known as the “Greenjackets” and the journalist was convicted largely because he had failed to explicitly contradict, or distance himself from, the racist and xenophobic statements of the interviewees. The European Court of Human Rights held that Jersild’s conviction was not “necessary in a democratic society” and that it therefore violated his rights under Article 10 of the European Convention on Human Rights. This conclusion rested largely on considerations of context in (news) reporting and the importance of journalistic autonomy for the functioning of democracy. The Court held that the journalist’s right to freedom of expression had been infringed, inter alia, because it was not for the courts to determine which journalistic techniques (e.g. “the methods of objective and balanced reporting”) should be used.

“the Court would emphasise, in particular, that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued.” Gunduz v Turkey para 40

Definitions

 

“the term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” CoE CoM 97(20)

“… tolerance and respect for the equal dignity of all human beings constitute the foundations

of a democratic, pluralistic society. That being so, as a matter of principle it may be

considered necessary in certain democratic societies to sanction or even prevent all

forms of expression which spread, incite, promote or justify hatred based

on intolerance…”

 

(Erbakan v. Turkey, judgment of 6 July 2006, § 56)

Beyond race

 

Art 14 defines the prohibited grounds for discrimination as:

 

“sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

 

Includes sexual orientation (picked up in next session) and disability (see CRPD)

 

Negationism

 

Garaudy v. France 24 June 2003 (decision on the admissibility)

 

The applicant, the author of a book entitled The Founding Myths of Modern Israel, was convicted of the offences of disputing the existence of crimes against humanity, defamation in public of a group of persons – in this case, the Jewish community – and incitement to racial hatred. He argued that his right to freedom of expression had been infringed.

 

The application was declared inadmissible. The Court considered that the content of

the applicant’s remarks had amounted to Holocaust denial, and pointed out that “[d]enying crimes against humanity [was] one of the most serious forms of racial defamation of Jews and of incitement to hatred of them”. Disputing the existence of clearly established historical events did not constitute scientific or historical research; the real purpose was to rehabilitate the National Socialist regime and accuse the victims themselves of falsifying history. As such acts were manifestly incompatible with the fundamental values which the Convention sought to promote, the Court applied Article 17 (prohibition of abuse of rights) and held that the applicant was not entitled to rely on Article 10 (freedom of expression).

 

Note ECHR art 17

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”

New media

Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems

“The law should clearly define and prohibit direct and indirect racial discrimination.”

“The law should penalise the following acts when committed intentionally:

  1. a) public incitement to violence, hatred or discrimination,
  2. b) public insults and defamation or
  3. c) threats against a person or a grouping of persons on the grounds of their race, colour, language, religion, nationality, or national or ethnic origin;
  4. d) the public expression, with a racist aim, of an ideology which claims the superiority of, or which depreciates or denigrates, a grouping of persons on the grounds of their race, colour, language, religion, nationality, or national or ethnic origin;”

European Commission against Racism and Intolerance, rec 7

Context and the nature of the speaker (journalist, politician etc)

Hate crime v hate speech

Hate crime: a pre-existing crime with a discriminatory motive.

EU COUNCIL FRAMEWORK DECISION 28 November 2008

Principle 1

 

The governments of the member states, public authorities and public institutions at the national, regional and local levels, as well as officials, have a special responsibility to refrain from statements, in particular to the media, which may reasonably be understood as hate speech, or as speech likely to produce the effect of legitimising, spreading or promoting racial hatred, xenophobia, anti-Semitism or other forms of discrimination or hatred based on intolerance. Such statements should be prohibited and publicly disavowed whenever they occur.

 

Principle 2

 

The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.

 

To this end, governments of member states should examine ways and means to:

– stimulate and co-ordinate research on the effectiveness of existing legislation and legal practice;

– review the existing legal framework in order to ensure that it applies in an adequate manner to the various new media and communications services and networks;

– develop a co-ordinated prosecution policy based on national guidelines respecting the principles set out in this recommendation;

– add community service orders to the range of possible penal sanctions;

– enhance the possibilities of combating hate speech through civil law, for example by allowing interested non-governmental organisations to bring civil law actions, providing for compensation for victims of hate speech and providing for the possibility of court orders allowing victims a right of reply or ordering retraction;

– provide the public and media professionals with information on legal provisions which apply to hate speech.

 

Principle 3

 

The governments of the member states should ensure that in the legal framework referred to in Principle 2, interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover, in accordance with the fundamental requirement of the rule of law, any limitation of, or interference with, freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.

 

Principle 4

 

National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.

 

Principle 5

 

National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect’s right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal

sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.

 

Principle 6

 

National law and practice in the area of hate speech should take due account of the role of the media in communicating information and ideas which expose, analyse and explain specific instances of hate speech and the underlying phenomenon in general as well as the right of the public to receive such information and ideas. To this end, national law and practice should distinguish clearly between the responsibility of the author of expressions of hate speech, on the one hand, and any responsibility of the media and media professionals contributing

to their dissemination as part of their mission to communicate information and ideas on matters of public interest on the other hand.

 

Principle 7

 

In furtherance of Principle 6, national law and practice should take account of the fact that:

– reporting on racism, xenophobia, anti-Semitism or other forms of intolerance is fully protected by Article 10, paragraph 1, of the European Convention on Human Rights and may only be interfered with under the conditions set out in paragraph 2 of that provision;

– the standards applied by national authorities for assessing the necessity of restricting freedom of expression must be in conformity with the principles embodied in Article 10, as established in the case law of the Convention’s organs, having regard, inter alia, to the manner, content, context and purpose of the reporting;

– respect for journalistic freedoms also implies that it is not for the courts or the public authorities to impose their views on the media as to the types of reporting techniques to be adopted by journalists.

 

UN authorities

ICCPR Art. 20(2).

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

See HRC GC 34 July 2011

  1. Equality, discrimination and human rights

Primary justification for restrictions on freedom of speech is to ensure vulnerable and oppressed minority groups are protected from further discrimination, oppression, violence and marginalisation. Thus this section proceeds from the basis of these, much needed, protections.  The first in time was CERD.

CERD

Article 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

CERD GC 35 September 2013

“the Committee recommends that the States parties declare and effectively sanction as offences punishable by law:

(a)    All dissemination of ideas based on racial or ethnic superiority or hatred, by whatever means;

(b)   Incitement to hatred, contempt or discrimination against members of a group on grounds of their race, colour, descent, or national or ethnic origin;

(c)    Threats or incitement to violence against persons or groups on the grounds in (b) above;

(d)   Expression of insults, ridicule or slander of persons or groups or justification of hatred, contempt or discrimination on the grounds in (b) above, when it clearly amounts to incitement to hatred or discrimination;

(e)    Participation in organizations and activities which promote and incite racial discrimination.”

 

“the Committee considers that the following contextual factors should be taken into account:

  • The content and form of speech: whether the speech is provocative and direct, in what form it is constructed and disseminated, and the style in which it is delivered.
  • The economic, social and political climate prevalent at the time the speech was made and disseminated, including the existence of patterns of discrimination against ethnic and other groups, including indigenous peoples. Discourses which in one context are innocuous or neutral may take on a dangerous significance in another: in its indicators on genocide the Committee emphasized the relevance of locality in appraising the meaning and potential effects of racist hate speech.
  • The position or status of the speaker in society and the audience to which the speech is directed. The Committee consistently draws attention to the role of politicians and other public opinion-formers in contributing to the creation of a negative climate towards groups protected by the Convention, and has encouraged such persons and bodies to adopt positive approaches directed to the promotion of intercultural understanding and harmony. The Committee is aware of the special importance of freedom of speech in political matters and also that its exercise carries with it special duties and responsibilities.
  • The reach of the speech, including the nature of the audience and the means of transmission: whether the speech was disseminated through mainstream media or the Internet, and the frequency and extent of the communication, in particular when repetition suggests the existence of a deliberate strategy to engender hostility towards ethnic and racial groups.
  • The objectives of the speech: speech protecting or defending the human rights of individuals and groups should not be subject to criminal or other sanctions.”

“The Committee considers that the expression of ideas and opinions made in the context of academic debates, political engagement or similar activity, and without incitement to hatred, contempt, violence or discrimination, should be regarded as legitimate exercises of the right to freedom of expression, even when such ideas are controversial.”

 

Gender

 

Council of Europe Convention on preventing and combating violence against women and

domestic violence (Istanbul Convention)

 

Article 40 – Sexual harassment

 

Parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non‐verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction.

 

“A.       Member States

 

  1. Unless already in place, member States should adopt an appropriate legal framework intended to ensure that there is respect for the principle of human dignity and the prohibition of all discrimination on grounds of sex, as well as of incitement to hatred and to any form of gender-based violence within the media.

 

  1. Member States should particularly ensure, through appropriate means, that media regulators respect gender equality principles in their decision making and practice.

 

  1. Member States should support awareness-raising initiatives and campaigns on combating gender stereotypes in the media.

 

Recommendation CM/Rec(2013)1 of the Committee of Ministers to member States on gender equality and media

 

Although the definition refers to a number of groups which are frequently seen to be the targets of hate speech, the list should be read as open-ended, and not limiting the possible targets to these groups alone.

This was made clear in 2011 when the Council of Europe opened for signature the Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) which binds state parties to prohibit sexual harassment, including “verbal, non-verbal or physical conduct of a sexual nature unwanted by the victim.” The Convention also highlights the participation of the private sector and the media and establishes the obligation of state parties to find ways to encourage private companies and the media to set themselves self-regulatory standards for example to limit any form of verbal or physical abuse of women. This would include hate speech on the grounds of gender, as well as any incitement to violence against women. The obligation on the government here is to set incentives or otherwise encourage the private sector actors to do whatever they can to make sure none of their products, services or advertisements exhibit misogynistic tendencies or gives them a platform to develop.

An additional standard are guidelines adopted in 2013 by the Committee of Ministers of the Council of Europe on gender equality and media. They specifically recommend that “unless already in place, member states should adopt an appropriate legal framework intended to ensure that there is respect for the principle of human dignity and the prohibition of all discrimination on grounds of sex, as well as of incitement to hatred and to any form of gender-based violence within the media.”

 

National actions

A first step member states should take is to ratify the Istanbul Convention and use its provisions to better frame the work of national and local authorities, including police and health officials, around four key principles of the fight against violence: prevention, protection, prosecution and integrated policies.

In addition, member states should also prohibit by law any advocacy of gender hatred that constitutes incitement to discrimination, hostility or violence, as foreseen by the ICCPR for other grounds.

Another tool at their disposal is the Council of Europe campaign “No Hate Speech Movement” which provides means to raise awareness about this problem and help fight back, including through its report page where hate content is monitored and collected by internet users. Member states should participate in and implement this campaign as part of their efforts to tackle hate speech.

Several other measures can be taken. For example, both traditional and online media could better engage in exposing and marginalising sexist discourse. Human Rights Commissioner, 6 March 2014

 

 

Sexual Orientation cases

 

The Venice Commission analysed the “propaganda provisions” from Russia, Ukraine, Moldova and stated:

 

“In the Venice Commission’s opinion, the provisions in question concerning the prohibition of “homosexual propaganda” in the above-mentioned countries are not formulated with sufficient precision as to satisfy the requirement “prescribed by law” contained in the paragraphs 2 of Articles 10 and 11 of the ECHR respectively and the domestic courts have failed to mitigate this through consistent interpretations.”

 

“…measures which seek to remove from the public domain promotion of other sexual identities except heterosexual, affect the basic tenets of a democratic society, characterized by pluralism, tolerance and broadmindedness, as well as the fair and proper treatment of minorities. Thus, such measures would have to be justified by compelling reasons.”

 

“As the provisions under consideration pertain to “homosexual propaganda” or “homosexual promotion” as such, without limiting the prohibition to obscene or pornographic display of homosexuality, or to the demonstration of nudity or sexually explicit or provocative behaviour or material, the provisions cannot be deemed to be justified as necessary in a democratic society to the protection of morals. The same conclusion may be drawn as regards the resolution adopted by the city of Bălţi in the Republic of Moldova, which prohibited the “aggressive propaganda of homosexuality”, since the resolution does not clearly limit the prohibition to obscenity or pornographic display of homosexuality and does not provide any indication of what “aggressive propaganda” may be. Such a prohibition may only be acceptable under ECHR standards if “aggressive” is understood as involving a call or incitation to violence or hatred. In this regard, the Venice Commission reiterates that freedom of expression is also applicable to information and ideas that offend shock or disturb the State or any sector of the population.”

 

The blanket nature of the prohibitions of “propaganda of homosexuality” which are the subject of the present Opinion appears to be incompatible with the above mentioned Handyside principles and the requirement of justification by compelling reasons of measures prohibiting expressions in support of the recognition of sexual minorities’ rights. Sweeping restrictions on the freedom of expression that target not only certain specific types of content (e.g. sexually explicit content such as in Müller v. Switzerland), but apply to all categories of expression, from political discussion and artistic expression to commercial speech, will certainly have serious impact on public debate on important social issues which is central to any democratic society. Thus, the ban cannot be considered necessary in a democratic society for the protection of family in the traditional sense.”

 

“In conclusion, referring also to the conclusions of the United Nations Committee on Human Rights in the case of Fedotova v. the Russian Federation and the Recommendation CM/Rec(2010)5 of the Committee of Ministers91, the Venice Commission considers that the prohibition of “propaganda of homosexuality” as opposed to “propaganda of heterosexuality” or sexuality generally – among minors, amounts to a discrimination, since the difference in treatment is based on the content of speech about sexual orientation and the authors of the provisions under consideration have not put forward any reasonable and objective criteria to justify the prohibition of “homosexual propaganda” as opposed to “heterosexual propaganda”.”

 

Fedotova v Russia

 

“the Committee is of the view that, by displaying posters that declared “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school building, the author has not made any public actions aimed at involving minors in any particular sexual activity or at advocating for any particular sexual orientation. Instead, she was giving expression to her sexual identity and seeking understanding for it.

 

The Committee notes the State party’s arguments that the author had a deliberate intent to engage children in the discussion of the issues raised by her actions; that the public became aware of the author’s views exclusively on the initiative of the latter; that her actions from the very beginning had an “element of provocation” and her private life was not of interest either to the public or to minors, and that the public authorities did not interfere with her private life (see paragraph 6.2 above). While the Committee recognizes the role of the State party’s authorities in protecting the welfare of minors, it observes that the State party failed to demonstrate why on the facts of the present communication it was necessary, for one of the legitimate purposes of article 19, paragraph 3, of the Covenant to restrict the author’s right to freedom of expression on the basis of section 3.10 of the Ryazan Region Law, for expressing her sexual identity and seeking understanding for it, even if indeed, as argued by the State party, she intended to engage children in the discussion of issues related to homosexuality. Accordingly, the Committee concludes that the author’s conviction of an administrative offence for “propaganda of homosexuality among minors” on the basis of the ambiguous and discriminatory section 3.10 of the Ryazan Region Law, amounted to a violation of her rights under article 19, paragraph 2, read in conjunction with article 26 of the Covenant.

 

 

Vejdeland and Others v. Sweden 9 February 2012

 

The case concerned the applicants’ conviction in 2005 for distributing in an upper secondary school approximately 100 leaflets considered by the courts to be offensive to homosexuals. The applicants alleged in particular that the Swedish Supreme Court convicting them of agitation against a national or ethnic group had constituted a violation of their freedom of expression.

 

The Court concluded that there had been no violation of Article 10 (freedom of expression) of the Convention, as the interference with the applicants’ exercise of their right to freedom of expression had reasonably been regarded by the Swedish authorities as necessary in a democratic society for the protection of the reputation and rights of others. The Court found in particular that the statements in question had constituted serious and prejudicial allegations, even if they had not been a direct call to hateful acts. It further stressed that discrimination based on sexual orientation was as serious as discrimination based on race, origin or colour.

 

The President and one other judge:

“The leaflets at issue undoubtedly contained statements that were totally unacceptable. However, to equate the content of the leaflets to hate speech within the meaning of our case-law needs robust justification. In my opinion, establishing this link by mere reference to the Smith and Grady precedent is not sufficient. Indeed, the offending statements should have been defined more precisely, bearing in mind that, by virtue of Article 17 of the Convention, “hate speech”, in the proper meaning of the term, is not protected by Article 10. A careful, in-depth analysis of the aim of the speech would have been necessary. As already indicated, the Supreme Court considered the aim (starting a debate) as being acceptable. However, the domestic courts should have examined more thoroughly whether behind the apparent aim there was any hidden agenda to degrade, insult or incite hatred against persons or a class of persons on account of their sexual orientation. In the case at hand the Supreme Court, after having admitted that the applicants’ actions had a legitimate purpose, namely starting a debate on a matter of public concern, characterised the impugned statements, not without contradiction, as being “unnecessarily offensive.” It justified the interference by acknowledging the applicant’s right to express his ideas, while at the same time stressing that freedoms and rights went hand in hand with obligations; one of which was “to avoid, as far as possible, statements that are unwarrantably offensive to others, constituting an assault on their rights”.

 

It is submitted that this is a rather vague test which seems to me to be inconsistent with the traditional and well-established case-law of our Court going back to Handyside, namely that “Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. …”

 

Still, I agreed, albeit very reluctantly”

 

Mladina D.D. Ljubljana v. Slovenia 17 April 2014

 

This case concerned the applicant publisher’s complaint that it was ordered by the national courts to pay damages to a parliamentarian for insulting him in an article concerning a parliamentary debate on the legal recognition of same sex relationships. The article was published in the publisher’s magazine in June 2005. The applicant complained, in particular, that the national courts had been unwilling to expose harmful, homophobic stereotypes and had not taken into consideration that the exaggerated, satirical style of the article was a reaction to the parliamentarian’s own controversial behaviour.

 

The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It pointed out that the limits of acceptable criticism were wider as regards a politician, especially when he himself had made controversial public statements, than as regards a private individual. Both the context in which the publisher’s article had been written (an intense political debate) and the style used (matching the parliamentarian’s own provocative comments and behaviour) had not been given sufficient consideration by the national courts. The article had not, therefore, been a gratuitous personal attack on the parliamentarian, but a counter-response to the parliamentarian’s own public remarks and, in particular, conduct which could be regarded as a ridicule of homosexuals and promoting negative stereotypes. Accordingly, the national courts had failed to strike a fair balance between the competing interests of protecting the reputation or rights of the parliamentarian and the publisher’s right to freedom of expression.

 

Pending applications

 

Bayev v. Russia (no. 67667/09), Kiselev v. Russia (no. 44092/12) and Alekseyev v.Russia (no. 56717/12)

 

Applications communicated to the Russian Government on 16 October 2013.  These cases concern the prohibition of “homosexual propaganda” in Russia. The Court gave notice of the applications to the Russian Government and put questions to the parties under Article10 (freedom of expression) and Article14 (prohibition of discrimination) of the Convention.

 

 

 

UN

As the UN Special Rapporteurs on the promotion and protection of the right to freedom of opinion and expression, on freedom of religion or belief, and on racism, racial discrimination, xenophobia and related intolerance have argued:

Hate speech is but a symptom, the external manifestation of something much more profound which is intolerance and bigotry. Therefore, legal responses, such as restrictions on freedom of expression alone, are far from sufficient to bring about real changes in mindsets, perceptions and discourse. To tackle the root causes of intolerance, a much broader set of policy measures are necessary, for example in the areas of intercultural dialogue or education for tolerance and diversity. In addition, this set of policy measures should include strengthening freedom of expression.[8]

 

 

Positive duties

Stem from arts 2, 3 and 8

 

Secic v Croatia, 31 May 2007

Two unidentified men approached the group and attacked the applicant. They beat him all over his body with wooden planks while shouting racial abuse. Another two unidentified men, apparently members of the same group, kept watch. Shortly afterwards, the police arrived; they interviewed people at the scene and looked for the attackers.

 

The applicant experienced severe pain and it was found that he had sustained multiple rib fractures. He had to undergo psychiatric treatment as a result of the incident; that he has been diagnosed with post-traumatic stress disorder, characterised by depression, anxiety, panic attacks, fear for his own safety and that of his family, intermittent insomnia and nightmares; and, that he has had an emotional breakdown.  The applicant’s lawyer informed the State Attorney’s Office that the individuals who had attacked the applicant had apparently been engaged in numerous other attacks against Roma people in Zagreb during the relevant period. She stressed that all the incidents had been racially motivated because they had involved both physical attacks and racist verbal abuse. Two of the Roma attacked had told the applicant’s lawyer that they would be able to identify the perpetrators and one of them claimed to have personally witnessed the attack on the applicant. Furthermore, the police had already identified and apprehended these attackers.

 

The ECtHR:

 

  1. The Court reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (seeNachova and Others, cited above, § 160, ECHR 2005‑…).
  2. The Court considers the foregoing necessarily true also in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (seeNachova and Others, cited above, with further references).
  3. In the present case it is suspected that the applicant’s attackers belonged to a skinhead group which is by its nature governed by extremist and racist ideology. Both the police and the Government admitted this fact.
  4. The Court considers it unacceptable that, being aware that the event at issue was most probably induced by ethnic hatred, the police allowed the investigation to last for more than seven years without taking any serious action with a view to identifying or prosecuting the perpetrators (see paragraphs 58-60 above).
  5. Consequently, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention.

 

 

ECHR FACTSHEETS

Race

http://www.echr.coe.int/Documents/FS_Racial_discrimination_ENG.pdf

Roma

http://www.echr.coe.int/Documents/FS_Roma_ENG.pdf

Domestic violence

http://www.echr.coe.int/Documents/FS_Domestic_violence_ENG.pdf

Violence against women

http://www.echr.coe.int/Documents/FS_Violence_Woman_ENG.pdf

Slavery and forced labour

http://www.echr.coe.int/Documents/FS_Forced_labour_ENG.pdf

Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)

http://www.coe.int/t/dghl/standardsetting/convention-violence/default_en.asp

 

[1] See Jersild v Denmark (1994) 19 EHRR 1, para 33.

[2] (2011) 53 EHRR 508.

[3] United Christian Broadcasters Ltd v UK App No 44802/98, 7 November 2000.

[4] See, eg Handyside v UK (1976) 1 EHRR 737.

[5] See, eg VGT Verein Gegen Tierfabriken v Switzerland (2002) 34 EHRR 4.

[6] Hertel v Switzerland (1999) 26 EHRR 534.

[7]  (1976) 1 EHRR 737, para 48.

[8]Joint submission by the Special Rapporteur on freedom of opinion and expression, the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on racism, racial discrimination, xenophobia and related intolerance to the 2011 Expert Workshop on the Prohibition of National, Racial or Religious Hatred, Vienna 9-10 February 2011

Effective investigations through cooperation. Investigations: the Challenges and Human Rights Standards

General Prosecutor Office of Ukraine in cooperation with the Council of Europe. Conference: Effective investigations through cooperation

 Investigations: the Challenges and Human Rights Standards

 Introduction

In my contribution today I would like to set out the standards that states, governments and law enforcement officials need to comply with in these investigations and give some examples of challenges that confront such investigations.

ECHR standards

 Articles 2 and 3 of the ECHR imposes positive obligations, including the duty for States to investigate allegations of torture, inhuman or degrading treatment or punishment or deaths that may have occurred in breach of the Convention (that is, such treatment imposed by the police or other law enforcement officials).  Art 3 violations may occur when police officers use excessive force or (unnecessarily) inflict serious injuries.

The right to truth

The Court may be developing a “right to truth” El-Masari , see the position taken in that case by a “minority” – Judges Tulkens, Spielmann, Sicilianos and Keller:

“we consider that the Court should have acknowledged that in the absence of any effective remedies – as conceded by the Government – the applicant was denied the “right to truth”, that is the right to an accurate account pf the suffering endured and the role of those responsible for that ordeal…

The UN’s Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism had submitted in two other cases (Husayn v Poland) that there was a right to truth that should be acknowledged.  The Court agreed:

“Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened.

An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.”

Given the conflict between the Grand Chamber case of El-Masari and the latest two more recent cases it is difficult to be assured that this right now exists in the ECHR but in view of the UN’s position on this as expressed by the Special Rapporteur in these cases the better view is that it does.  The extent of this right as developed so is probable captured in the above quotes limiting the right to circumstances where there are “serious human rights violations”.

Article 2

 In McCann and Others v. the United Kingdom:

“The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility”

 Inquiry requirements:

  • independence,
  • promptness and expedition,
  • capacity to establish the facts, and
  • accessibility to the public and the relatives.

Jularic v Croatia

“The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible. In particular, the authorities must take the reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death

Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible may risk falling foul of this standard.

  1. There must also be an implicit requirement of promptness and reasonable expedition. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in preserving public confidence in the maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
  1. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests”

In the case of Association 21 v Romania the applicants were, or represent, participants, injured victims or relatives of those who died in the crackdown on anti-communist demonstrations in Romania in December 1989.  They complained of the lack of an effective investigation into their son’s death during those events and, relying on Article 3 (prohibition of inhuman or degrading treatment), complained of the lack of an effective investigation into the ill-treatment to which he was subjected while taking part in the demonstrations in question.

“The procedural obligation imposed by Article 2 requires that an effective obligation be conducted where the use of force, particularly by State agents, has resulted in the loss of human life. This involves the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings, capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken reasonable steps to secure the evidence concerning the incident. A requirement of promptness and reasonable expedition is implicit in this context. Equally, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events, which means not only a lack of hierarchical or institutional connection but also a practical independence

para 95

“The Court also reiterates that while there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is essential in maintaining public confidence in their adherence to the rule of law. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness”

para 96

Article 3

From Council of Europe’s “The Prohibition Against Torture: A Guide to Article 3”

“Positive obligations on states designed to prevent, and provide redress for, torture and other forms of ill-treatment.

In Assenov and Others v. Bulgaria the Court held that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other agents of the state unlawfully and in breach of Article 3, that provision, read in conjunction with the state’s general duty under Article 1of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in…[the] Convention”, requires that there should be an effective official investigation. The investigation should be capable of leading to the identification and punishment of those responsible.

“the investigating authorities must also commence their investigation and inquiries on the basis that if victims provide prima facie evidence that they are injured at the time of release from custody although they were healthy at the time that they were taken into custody the burden is on the detaining authorities to provide a plausible explanation as to how those injuries were sustained. As with an investigation under Article 2, an investigation into an allegation of torture or inhuman treatment should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity. Those investigations must be sufficiently thorough and effective to satisfy the aforementioned requirements of Article 3. Judges and supervisors of such investigations should be particularly vigilant for flaws in the investigative process which the Commission and Court have found to exist in other systems.

Those reviewing investigations should ensure that:

 

_ Public prosecutors or investigating officers do not omit to, or are not inhibited from questioning, or taking statements from members of the security forces or police with regard to allegations of misconduct.

_ Public prosecutors or investigating officers take the necessary steps to verify documentary materials which may reveal the truth or otherwise of claims of ill-treatment, e.g. custody records, or to pursue any contradictions, inconsistencies or gaps in the information provided by the police or security forces.

_ Prosecutors take steps to seek independent, corroborative evidence, including forensic evidence with respect to the allegation of torture.

_ Prosecutors have not permitted delays to develop before seeking evidence, or statements from applicants or witnesses.

_ Prosecutors react promptly to visible signs of ill-treatment or complaints of ill-treatment.

_ Public prosecutors pursue investigations against perpetrators who are agents of the State, actively or vigorously. In some cases, instead of pursuing the perpetrators of torture, public prosecutors have chosen instead to prosecute the apparent victim of the misconduct. For example in Ilhan v. Turkey, where the applicant was injured on arrest he was prosecuted for failing to stop on order of the security forces, while no action was taken against the security forces who mistreated him.

_ Public prosecutors do not display a deferential or blinkered attitude towards members of the law-enforcement or security forces, with a tendency to ignore or discount allegations of wrongdoing on their part. In particular, public prosecutors must not make assumptions that the agents of the State are in the right and that any signs of ill-treatment are the result of lawful action, or have been necessitated by the behaviour of the complainant. This is often the case where allegations of torture are made.

The Court has previously found there to be problems with the inadequate nature of the procedural rights of Article 3 in cases where there has been

_ inadequate forensic medical examinations of detainees, including lack of examination by

appropriately qualified medical professionals;

_ the use of brief, undetailed medical reports and certificates which do not include a description of the applicant’s allegations or any conclusions;

_ a practice of handing over an open report to police officers;

_ inadequate forensic examinations of deceased persons, including reports which do not include thorough descriptions of injuries;

_ failure to take photographs or make analyses of marks on the body or examinations carried out by doctors with insufficient expertise.

 

It is also essential that no legal impediments be placed in the way of the jurisdiction of public prosecutors to prosecute certain categories of offences committed by State officials, such as compromising the independence of the prosecutor in his or her decision to prosecute perpetrators of torture. Another problematic aspect of investigations can be the lack accessibility of applicants or the relatives of alleged victims to the structures of remedies, including a failure to give information as to the progress of any proceedings or the results of investigations; and a lack of information, or delay in information, being passed on to relatives of persons involved in the incident.”

Ukraine

In the judgment of 2012 the Court raised serious questions about the independence and effectiveness of investigations:

“Under Article 46 (binding force and implementation of judgments) the Court noted that Mr Kaverzin’s ill-treatment in police custody reflected a recurring problem in Ukraine. In about 40 of its judgments, the Court had already found that the Ukrainian authorities had been responsible for ill-treatment of people held in police custody and that no effective investigation had been carried out into their allegations. Currently there are more than 100 other such cases pending.”

IPCC

Set up in 2003 to ensure independence in the oversight of complaints against law enforcement officials and independent investigation of serious incidents, deaths in custody and the use of lethal force by the police.

Maybe the biggest and most powerful police oversight body in the world?  Last year 426 staff, including 169 in investigations.

Duty of forces to refer serious incidents and deaths immediately.  24 hour service.  Call in power and appeal function for less serious complaints.

Challenges in investigations

Resources and independence

Never enough of its own investigations staff to investigate all the incidents – demand by victims and complainants for independent investigations.  Can direct investigations by police forces but in some cases that is not enough.

Ramashai v Netherlands

The applicants were the grandfather, grandmother and father, respectively, of R who was shot dead by a policeman in July 1998.

In the evening of Sunday in 1998, during the “Kwakoe” festival (a celebration by the Surinamese immigrant community of the abolition of slavery in Suriname 135 years earlier), R stole a scooter from its owner at gunpoint and drove off on it.

The police were notified. Two uniformed police officers on patrol, spotted a scooter driven by a person fitting the description they had been given and tried to arrest him. R raised his pistol and pointed it towards the Officer who drew his pistol and fired and R was hit in the neck.

A criminal investigation was ordered. Parts of the investigation were carried out by the force to which Officers belonged (Amsterdam/Amstelland police force): the technical examination of the scene of the shooting, the door-to-door search for witnesses and the initial questioning of witnesses including police officers who also belonged to the Amsterdam/Amstelland police force. The Amsterdam/Amstelland police force remained in charge of the investigation for the first fifteen-and-a-half hours; after that, they were involved only under the authority of an officer of the State Criminal Investigation Department (Rijksrecherche).

Ultimately the public prosecutor, finding that Officer B had acted in legitimate self-defence, decided that no prosecution should be brought.

“275. the Court has concerns about the independence and quality of the investigation into R’s death. In particular, there is an apparent discrepancy between the statements of Officers themselves, who both stated that it had been Officer B who had fired the fatal shot and [the other] Officers, the police officers in charge of monitoring police radio traffic, who both stated that they had heard [the other] Officer report that he had fired the shot and call for an ambulance.

“340. As to the investigations of the [national] police force after the National Police Internal Investigations Department took over, the Court finds that the Department’s subsequent involvement cannot suffice to remove the taint of the force’s lack of independence.

  1. On these grounds alone the Court therefore finds that there has been a violation of Article 2 of the Convention in that the police investigation was not sufficiently independent.

 

(iii) The role of the public prosecutor

 

  1. The police investigation was carried out under the supervision of an Amsterdam public prosecutor who was specifically responsible for the police work carried out at [the police officers’] police station. The same public prosecutor took the decision not to prosecute Officer B under authority delegated to her by the Chief Public Prosecutor.

 

  1. In the Netherlands the Public Prosecution Service, although it does not enjoy full judicial independence, has a hierarchy of its own, separate from the police, and in operational matters of criminal law and the administration of justice the police are under its orders.

 

  1. Public prosecutors inevitably rely on the police for information and support. This does not in itself suffice to conclude that they lack sufficient independence vis-à-vis the police. Problems may arise, however, if a public prosecutor has a close working relationship with a particular police force.

 

  1. In the present case, it would have been better if the investigation had been supervised by a public prosecutor unconnected to the Amsterdam/Amstelland police force, especially given the involvement of the Amsterdam/Amstelland police force in the investigation itself. Even so, note must be taken of the degree of independence of the Netherlands Public Prosecution Service and the fact that ultimate responsibility for the investigation was borne by the Chief Public Prosecutor. What is more, the possibility of review by an independent tribunal existed and the applicants actually made use of it.
  1. [But] There has not therefore been a violation of Article 2 on this point.

Relationship with the police

Police reluctance to allow investigations by those who do not understand the difficulties, risks and stresses of the job.  Police concern that other investigations will get in the way of their work.

On 7 July 2005 London bombings there were a series of coordinated suicide attacks in central London, which targeted civilians using the public transport system during the morning rush hour.

On the morning of Thursday, 7 July 2005, four British men detonated four bombs—three in quick succession aboard London Underground trains across the city and, later, a fourth on a double-decker bus. As well as the four bombers, 52 civilians were killed and over 700 more were injured in the attacks, one of the United Kingdom’s worst terrorist incidents.  On 21 July 2005 there were four failed bomb attacks on the London Transport network and on 22 July 2005 Jean Charles de Menezes shot and killed by officers from the Metropolitan Police Service.

Immediately following the shooting of Jean Charles DE MENEZES, the Commissioner of the Metropolitan Police gave a direction that the IPCC would not be given access to the scene of the shooting and the matter would not be referred to by the IPCC.

 

“He states that he was told that this was on the authority of the Commissioner of the Metropolitan Police and the Prime Minister. The pressures under which the Metropolitan Police were operating following the events of 7 July and 21 July are self-evident. However, the fact that the independent body established by an Act of Parliament to investigate complaints and serious incidents involving the police, and which has independently investigated every fatal police shooting since 1 April 2004 was now to be excluded from the scene, is a major concern for an independent investigation, and should never occur again.”

Stockwell 1 report

Complexities and overlapping investigations

In practice difficult to conduct parallel and interconnected investigations:

  • Sharing forensics;
  • Confidentiality;
  • Treating police officers as suspects;
  • Contaminating evidence

Protests – and another IPCC example

“On Wednesday 15 September 2004, there was large-scale public disorder in Parliament Square in Central London. A rally organised by the Countryside Alliance had gathered in Parliament Square from approximately 11am to protest against the Government’s Bill to ban hunting with dogs.

It was estimated by the Countryside Alliance that 30,000-40,000 people turned up for this demonstration. The Metropolitan Police Service (MPS) who were expecting approximately 10,000, put the actual figure of people who attended at 20,000. There were 1,300 police officers involved in policing the demonstration.”

“It is clear that missiles were being thrown at the police lines. It is also clear that from 3.30 pm some of the demonstrators surged towards the police lines, there were attempts to breach the police lines, and a number of police officers used their batons to strike demonstrators on the head, causing injuries. On occasions officers are seen to be pinned back to the police vehicles being used as barriers. It is not surprising therefore that police officers chose to use force. They were entitled to use force to protect themselves, their colleagues and other demonstrators or members of the public from violence or to prevent protesters from invading Parliament.”

Difficulties included:

  • Chaos and confusion;
  • Protesters confused incidents, couldn’t identify police officers;
  • Tracing witnesses;
  • Police officers couldn’t take detailed notes during protest;
  • Some police officers and civilians did not tell the truth;
  • Problems with forensic evidence;
  • CCTV issues;
  • Court orders for media video footage;
  • Issues of self-defence;

The IPCC was forced to prioritise those cases involving actual injuries – less significant allegations of police misconduct had to be referred back for the police force itself to investigate (although complainants retained a right of appeal against the decisions made by the local police force).

Thirty-one officers were served with Regulation 9 Notices advising them they were subject of complaint. Thirteen of the Regulation 9 Notices were withdrawn as evidence came to light that officers had acted properly. Nineteen were interviewed under caution.

Seventeen complaint files went to the Crown Prosecution Service who advised:

  • No criminal proceedings 10
  • of which no disciplinary action 8
  • of which returned to MPS for disciplinary action 2
  • of which officer given ‘words of advice’ 1
  • of which officer faced discipline tribunal 1
  • of which ‘not proven’ 1

Here is an example closer to the circumstances that we are discussing at this conference

The case of Association 21st December 1989 v Romania concerned a crackdown in 1989 following protects and demonstrations – more than 1,200 people died.

“The Court does not underestimate the undeniable complexity of the present case, which, since the joinder decision of 9 January 2006, is also intended to establish those responsible for the entirety of the armed crack-down which occurred in the closing days of December 1989 in several Romanian towns…

It considers, however, that the political and social stakes relied on by the Government cannot by themselves justify either the length of the investigation or the manner in which it was conducted over a very lengthy period, without the applicants or the public being informed of its progress. On the contrary, its importance for Romanian society, which consisted in the right of the numerous victims to know what had happened, implying the right to an effective judicial investigation and a possible right to compensation, ought to have prompted the domestic authorities to deal with the case speedily and without unnecessary delay, in order to prevent any appearance of tolerance of or collusion in unlawful acts, para 104

The Court has already emphasised the importance of the right of victims and their families and heirs to know the truth about the circumstances surrounding events involving a massive violation of rights as fundamental as that of the right to life, which implies the right to an effective judicial investigation and a possible right to compensation. For that reason, in the event of widespread use of lethal force against the civilian population during anti-Government demonstrations preceding the transition from a totalitarian regime to a more democratic system, as in the instant case, the Court cannot accept that an investigation has been effective where it is terminated as a result of the statutory limitation of criminal liability, when it is the authorities themselves who have remained inactive. Moreover, as the Court has already indicated, an amnesty is generally incompatible with the duty incumbent on the States to investigate acts of torture and to combat impunity for international crimes. This is also true in respect of pardon  –  para 106

Giuliani v Italy, GC, 23.3.11

The application concerns the death of the applicants’ son and brother, 23-year-old Carlo Giuliani, which occurred while he was taking part in an anti-globalisation demonstration in connection with the G8 summit held in Genoa in 2001.

In the context of the G8 summit held in Genoa, from 19 to 21 July 2001, numerous anti- globalisation demonstrations were held in the city and substantial security arrangements were put in place by the Italian authorities, including deployment of the armed forces.

On 20 July an authorised demonstration involving large numbers of participants gave rise to violent clashes between demonstrators and the security forces. At around 5 p.m. a group of about 50 carabinieri withdrew in disorderly fashion near Piazza Alimonda, with the result that two jeeps which had been bringing up the rear were left isolated.

Following a driver error, one of the vehicles, with three carabinieri inside, remained on Piazza Alimonda, unable to move. Objects, mainly stones, were then thrown at the jeep and some demonstrators ran towards it. One of the carabinieri, panicking, seized his weapon, which he pointed outside the vehicle, shouted to the crowd to leave and then fired two shots. Carlo, who had just picked up a fire extinguisher, was a few metres away from the jeep; the first bullet hit him just below the eye and he fell to the ground. In an attempt to move the jeep out, the driver reversed over Carlo’s body; he then engaged first gear and drove over him again. When the demonstrators had been dispersed, a doctor arrived at the scene and pronounced Carlo dead.

An investigation was opened immediately by the Italian authorities, in the course of which statements were taken from the three carabinieri in the jeep and evidence was heard from other carabinieri and from some of the demonstrators. Criminal proceedings were instituted against the officer who had fired the shots and the driver of the jeep for intentional homicide. The autopsy performed on Carlo’s body within 24 hours of his death revealed that the bullet impact to his head had been sufficient to cause death within a few minutes, whereas the jeep’s driving over his body had resulted only in minor injuries. The forensic expert found that the shot had been fired at a downward angle.

“320. The Court also notes that the procedural obligations arising out of Article 2 require that an effective “investigation” be carried out and do not require the holding of public hearings. Hence, if the evidence gathered by the authorities is sufficient to rule out any criminal responsibility on the part of the State agent who had recourse to force, the Convention does not prohibit the discontinuation of the proceedings at the preliminary investigation stage. As the Court has just found, the evidence gathered by the prosecuting authorities, and in particular the footage of the attack on the jeep, led to the conclusion, beyond reasonable doubt, that M.P. had acted in self-defence, which constitutes a ground of justification under Italian criminal law.

 

  1. Furthermore, it cannot be said that the prosecuting authorities accepted without question the version supplied by the law-enforcement officers implicated in the events. They not only questioned numerous witnesses, including demonstrators and third parties who had witnessed the events on Piazza Alimonda, but also ordered several forensic examinations, including an expert medical examination and three sets of ballistics tests. The fact that the experts did not agree on all aspects of the reconstruction of events (and, in particular, on the distance from which the shot had been fired and the trajectory of the bullet) was not, in itself, such as to make further investigations necessary, given that it was for the judge to assess the pertinence of the explanations given by the various experts and whether they were compatible with the existence of grounds of justification exempting the accused from criminal responsibility.

 

  1. It is true that the carabinieri, that is, the armed force to which M.P. and F.C. belonged, were given the task of conducting certain checks. However, in view of the technical and objective nature of those checks, this fact cannot be said to have adversely affected the impartiality of the investigation. To hold otherwise would be to impose unacceptable restrictions in many cases on the ability of the courts to call on the expertise of the law-enforcement agencies, which often have particular competence in the matter. In the instant case, the law-enforcement agencies were already present at the scene and were thus able to secure the area and search for and record any items of relevance to the investigation. Given the number of people on Piazza Alimonda and the confusion reigning after the shots were fired, the authorities cannot be criticised for not finding objects as small as the bullets fired by M.P.
  1. In the Court’s view, Mr Romanini’s appointment as an expert raises some more delicate issues, as he had openly defended the view, in an article written for a specialist journal, that M.P. had acted in self-defence. It should be observed in this connection that the expert reports ordered in the context of the investigation were designed, among other things, to provide evidence for or against that view. The presence of an expert who had preconceived ideas on the subject was therefore far from reassuring. Nevertheless, Mr Romanini was just one member of a four-expert team. He had been appointed by the prosecuting authorities and not by the investigating judge and was therefore not acting as a neutral and impartial auxiliary of the latter. Furthermore, the tests he was required to carry out for the purposes of the ballistics report were of an essentially objective and technical nature. Accordingly, his presence was not capable, in itself, of compromising the impartiality of the domestic investigation.
  1. Furthermore, it has not been established by the applicants that the investigation lacked impartiality and independence or that the branch of the police which performed certain steps in the investigation was implicated in the events to such an extent that the entire investigation should have been entrusted to the revenue police.

Conclusion

No one should underestimate the difficulties that are faced by the authorities in complying with these standards given the significant nature of the public order issues that confronted them nine months ago.  It will be impossible now to reconstruct a perfect picture of all of the incidents.  The priority must therefore be to start to investigate the most serious incidents, the most serious issues of assault, injuries and death.

Resources, particularly significant expert and experienced investigators are necessary, together with logistical expertise, forensics, and computer systems to collect and cross-reference statements and any photographs or videos.  There also has to leadership and vision to ensure that the investigations are effective and that those that broke laws and violated fundamental rights are brought to justice.  The difficulties are likely to be even more significant where law enforcement officials are investigating their colleagues and where the evidence points to the guilt of those whose duties are to uphold the law and to protect the public (including those protesting and even those who are breaking the law themselves).

Note pending cases in the ECtHR:

Derevyanko v Ukraine

“The applicant, Yuriy Derevyanko, is a Ukrainian national. According to his submissions, he has taken part in the ongoing protests in central Kyiv since November 2013. He states that since then and, in particular, starting from 18 February 2014 onwards the police have made violent attempts to disperse the protesters in central Kyiv. According to Mr Derevyanko, the police have been using live ammunition, explosives and water cannons – despite low temperatures – and other means, which resulted in the deaths and in serious injuries of a large number of protesters.

Mr Derevyanko complains that the measures the authorities have been employing to deal with the demonstrations have been in violation of his – and other protesters’ – rights under Article 2 (right to life), in substance, Article 3 (prohibition of inhuman or degrading treatment), Article 5 (right to liberty and security), Article 8 (right to respect for private life), Article 11 (freedom of assembly and association) and Article 13 (right to an effective remedy) of the European Convention on Human Rights and Article 1 of Protocol No. 1 to the Convention (protection of property).  The application was lodged with the European Court of Human Rights on 23 January 2014” ECtHR Press release

Sirenko v Ukraine

“The applicant claims to have been taking part in the on-going protests in central Kyiv since 29 November 2013. He states that he was beaten up by the special police units during the violent dispersal of protesters on 30 November 2013. According to the medical documents submitted together with the request, the applicant had multiple bruises on his limbs dated 30 November 2013. Subsequently, he was placed in police custody for several hours, for which no reason has been given. He complains in this respect of a violation of Articles 3, 5, 11 and 13 of the Convention.” ECtHR communication.

Application also for interim protection, rule 39.

Taking Rights Seriously: Data protection and Article 8 in Moldova

Taking Rights Seriously: Data protection and Article 8 in Moldova

I was very pleased to assist as an “expert” for the Council of Europe in Moldova this month in a project designed “to enhance the effectiveness of the European Convention on Human Rights (ECHR) at national level, in line with the Brighton Declaration”. Although many human rights experts were concerned about the UK government’s intentions when it Chaired the Council of Europe two years ago and the content of some of the leaked drafts of what was to become the Brighton Declaration there is, in fact, a great deal of good work being done following that declaration to promote human rights across Europe.

Creating better systems for protecting human rights at a national level is obviously sensible because it is likely to resolve issues more quickly, prevent violations in the first place and stemming the flow of cases to the European Court of Human Rights (though the Court seems to continue to be doing a brilliant job at reducing the numbers, applications pending reduced again from January (99,990) to the end of August this year (89,550), ECtHR, Statistics 1/1 – 31/8/2014). It is obviously refreshing to be working with lawyers and others outside of the UK who are clearly determined to make a difference and to do their level best to protect the rights in the Convention.

The project that I was a very small part of was aimed “at facilitating the implementation of national measures to prevent or redress violations of human rights and therefore will contribute to the sustainability of the European Court of Human Rights (ECtHR). In particular, the project will contribute to ensuring:

– that remedies available to persons with arguable complaints of violation of the ECHR are effective;
– that Moldovan domestic procedures to conduct investigations and handle cases of serious human rights violations comply with the procedural obligations under the ECHR;
– that draft legislation and administrative practice are verified as to their compatibility with the ECHR;
– that the status, organisation, operation and infrastructure of public services belonging to the criminal justice sector are compliant with European standards and good practices (Council of Europe, Human Rights Trust Fund).

I guess we could do with some of this back in the UK.

Moldova was the ninth country generating the highest amount of applications before the ECtHR, despite its much smaller size (“Execution of judgements of the European Court of Human Rights by the Republic of Moldova, 1997-2012”, by the Legal Resources Centre from Moldova). Compared to other countries with a high number of ECtHR judgments, where most of the judgments refer to one or two systemic problems, the Moldovan judgments refer to more than 50 types of violations of the ECHR. The most frequent violations found by the ECtHR were related to: Art. 6 (right to a fair trial); Art. 3 (prohibition of torture); Art. 5 (right to liberty and security); and Art. 13 (right to an effective remedy).

In 2013 the ECtHR dealt with 3,162 applications and delivered 19 judgments from Moldova, 18 of which found at least one violation (ECtHR Press country file: Moldova, January 2014).

My workshop was held for the staff of the Constitutional Court of the Republic of Moldova in Chisinau and focused on the protection of personal data through the right to respect for private and family life (Article 8).

It is always great to get the opportunity to discuss the nature of the Convention rights with others who have to use them in practice and to try to work together to deal with the challenges that protecting human rights creates for all of us. Our workshop discussed the typology of rights in the Convention (absolute, qualified and limited) and then focused on a thorough analysis of the qualified rights, in particular the concepts of:
• engagement of Article 8 itself;
• actual interference;
• prescribed by law:
o accessible,
o foreseeable,
o character and
o quality of the law;
• legitimate aim;
• proportionality:
o in general,
o specifically targeted,
o logical and causal connection; and
• the margin of appreciation.

The Council of Europe and the Court now have some much incredibly good material available on their websites. The COE’s Handbook No 1, “A guide to the implementation of Article 8 of the European Convention of Human Rights”, is particularly great, providing quotes from the key jurisprudence and some excellent case examples. This was supplemented by the European Court of Human Rights’ factsheets “Protection of personal data” and “New technologies” for more up to date and specific cases and jurisprudence. In addition, relevant cases against Moldova were considered.

For me it was also helpful to review the Council of Europe’s Data Protection Convention, and in particular the principles therein and how those principles and the Court’s jurisprudence seem to remain in harmony with each other despite the age of the Data Protection Convention (1981). Even in countries not (yet) part of the EU, the EU’s key principles of data protection law is crucial to consider, at least to the extent that that they followed the principles of the COE Conventions (The Fundamental Rights Agency, Council of Europe and European Court of Human Rights’ “Handbook on Data Protection”, 2014, is incredibly helpful).

RIPA with added DRIP

As RIPA is already very complex I decided to track the changes proposed by DRIP into the sections of RIPA that DRIP will amend but not included the provisions of RIPA that will be unamended.  I have used the version of RIPA from the Legislation.Gov.UK website which is unlikely to be completely up to date but the best I can do at short notice.  I hope it helps to understand what is being proposed.  Please let me know if you spot any mistakes.

Note once DRIP is an Act is has executive sections that will not feature in the amended RIPA

 

RIPA with added DRIP

INTERIGHTS closes down

INTERIGHTS closed on 27 May 2014. Our past successes have included cases challenging slavery in Niger – making a difference to thousands of people; ensuring that the African Commission set standards for countries across the continent to ensure that all detentions were lawful, not arbitrary and never involved torture; protecting minorities like the Transdniestra community in Moldova or; cases for people with disabilities or for those harassed or discriminated because of their sexual orientation or gender.

However, INTERIGHTS found it increasingly difficult to retain funding for its work over the past two or three years and it has recently become clear that it will be impossible to sustain the organisation over the long term. Despite downsizing the organisation significantly, making many of our long-term staff redundant and negotiating significant reductions in other costs, we had no choice but to cease operating. In the last three months we focused our efforts on our current cases in order to identify other lawyers and NGOs to take forward this important work after our closure.

While the staff and Board are very disappointed to be closing, we are comforted by the successes that INTERIGHTS has been able to achieve in the thirty two years since it was established.  We all hope that others can build on those achievements and continue to use the tools that INTERIGHTS developed to promote human rights across the world.

We are all in debt to those who founded the organisation thirty two years ago and all the hundreds of staff, volunteers, Board members, partners, supporters and funders who made it all possible and contributed to making the world a better place.

INTERIGHTS’ pending cases have been transferred to our partners. Please write to IR2@interights.org if you have specific queries about a case.

For more details please see our website below which will continue to operate for the next few years.

http://www.interights.org