West Law Report

DNA Database, Human Right, and British Police

Posted in European Court of Human Rights (case), Times Law Report by mrkooenglish on December 5, 2008

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(Photo: PA/ Guardian)

From The Times
December 8, 2008
Storing innocents’ samples is disproportionate

European Court of Human Rights

Published December 8, 2008

S and Marper v United Kingdom (Application Nos 30562/04 and 30566/04)

Before J-P.Costa, President, and Judges C. Rozakis, Sir Nicolas Bratza, P. Lorenzen, F. Tulkens, J. Casadevall, G. Bonello, C. Bîrsan, N. Vajic, A. Kovler, S. Pavlovschi, E. Myjer, D. Jociene, J. Šikuta, M. Villiger, P. Hirvelä and L. Bianku

Deputy Registrar M. O’Boyle

Judgment December 4, 2008

The blanket and indiscriminate nature of the powers of retention of fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences failed to strike a fair balance between the competing public and private interests.

Accordingly, the European Court of Human Rights held, unanimously, that as the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society, there had been a violation of article 8 of the European Convention on Human Rights.

The applicants, S and Michael Marper, both British nationals, were born in 1989 and 1963 respectively. They lived in Sheffield.

The case concerned the retention by the authorities of their fingerprints, cellular samples and DNA profiles after criminal proceedings against them were terminated.

On January 19, 2001, S was arrested and charged with attempted robbery. He was aged eleven at the time. His fingerprints and DNA samples were taken. He was acquitted on June 14, 2001.

Mr Marper was arrested on March 13, 2001, and charged with harassment of his partner. His fingerprints and DNA samples were taken. On June 14, 2001 the case was formally discontinued as he and his partner had become reconciled.

Once the proceedings had been terminated, both applicants unsuccessfully requested that their fingerprints, DNA samples and profiles be destroyed: see (The Times July 23, 2004; [2004] 1 WLR 2196).

Alleged violation of article 8

The Court noted that fingerprints, DNA profiles and cellular samples constituted personal data within the meaning of the Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data.

The Court indicated that the domestic law had to afford appropriate safeguards to prevent any such use of personal data as could be inconsistent with article 8. It added that the need for such safeguards was all the greater where the protection of personal data undergoing automatic processing was concerned, not least when such data were used for police purposes.

The interests of the individuals concerned and the community as a whole in protecting personal data, including fingerprint and DNA information, could be outweighed by the legitimate interest in the prevention of crime.

However, the intrinsically private character of that information required the Court to exercise careful scrutiny of any state measure authorising its retention and use by the authorities without the consent of the person concerned.

The issue to be considered was whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was necessary in a democratic society.

The Court took due account of the core principles of the relevant instruments of the Council of Europe and the law and practice of the other contracting states, according to which retention of data was to be proportionate in relation to the purpose of collection and limited in time.

Those principles had been consistently applied by the contracting states in the police sector, in accordance with the Data Protection Convention 1981 and subsequent recommendations by the Committee of Ministers of the Council of Europe.

As regards, more particularly, cellular samples, most of the contracting states allowed those materials to be taken in criminal proceedings only from individuals suspected of having committed offences of a certain minimum gravity.

In the great majority of the contracting states with functioning DNA databases, samples and DNA profiles derived from those samples were required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge. Some exceptions to that principle were allowed by some contracting states.

England, Wales and Northern Ireland appeared to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.

The Court observed that the protection afforded by article 8 would be unacceptably weakened if the use of modern scientific techniques in the criminal justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. Any state claiming a pioneer role in the development of new technologies bore special responsibility for striking the right balance.

The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. In particular, the data in question could be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; the retention was not time-limited; and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed.

The Court expressed a particular concern at the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who had not been convicted of any offence and were entitled to the presumption of innocence, were treated in the same way as convicted persons.

It was true that the retention of the applicants’ private data could not be equated with the voicing of suspicions. None the less, their perception that they were not being treated as innocent was heightened by the fact that their data were retained indefinitely in the same way as the data of convicted persons, while the data of those who had never been suspected of an offence were required to be destroyed.

The Court further considered that the retention of unconvicted persons’ data could be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society.

It considered that particular attention had to be paid to the protection of juveniles from any detriment that could result from the retention by the authorities of their private data following acquittals of a criminal offence.

In conclusion, the Court found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, failed to strike a fair balance between the competing public and private interests, and that the respondent state had overstepped any acceptable margin of appreciation in that regard. Accordingly, the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society. The Court concluded unanimously that there had been a violation of article 8.

Alleged violation of article 14

In the light of its conclusion under article 8, the Court considered unanimously that it was not necessary to examine separately the complaint under article 14.

Application of article 41

The Court considered that the finding of a violation, with the consequences that that would ensue for the future, could be regarded as constituting sufficient just satisfaction in respect of the non-pecuniary damage sustained by the applicants. It noted that, in accordance with article 46, it would be for the respondent state to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private life.

The Court awarded the applicants €42,000 in respect of costs and expenses, less €2,613.07 already paid in legal aid.

Full text at http://www.echr.coe.int

See also:
“Only DNA samples for those convicted of crimes should be kept, according to the ruling.”:
European court rules DNA database breaches human rights“, guardian.co.uk, 4 Dec 2008

Afua Hirsch, “DNA D-Day“, guardian.co.uk, 4 Dec 2008
Afua Hirsch, “What Strasbourg ruling means for UK“, guardian.co.uk, 5 Dec 2008
Police are ordered to destroy all DNA samples taken from innocent people“, The Times, 5 Dec 2008
European Court Rules Against Britain’s Policy of Keeping DNA Database of Suspects“, NY Times, 4 Dec 2008

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Pensioners abroad fail to establish discrimination

Posted in European Court of Human Rights (case), Times Law Report by mrkooenglish on November 21, 2008

From The Times
November 20, 2008
Pensioners abroad fail to establish discrimination

European Court of Human Rights

Published November 20, 2008

Carson and Others v United Kingdom (Application No 42184/05)

Before L. Garlicki, President, and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, D. Thór Björgvinsson, L. Buanku and M. Poalelungi Deputy Section Registrar F. Araci

Judgment November 4, 2008

The exclusion of pensioners living abroad from an index-linked uprating scheme applicable to all pensioners in the United Kingdom was not in breach of the European Convention on Human Rights.

The European Court of Human Rights so held, by six votes to one, when finding no violation of article 14, prohibiting discrimination, in conjunction with article 1 of Protocol No 1, protecting property.

The applicants were 13 British nationals: Annette Carson, Bernard Jackson, Venice Stewart, Ethel Kendall, Kenneth Dean, Robert Buchanan, Terrance Doyle, John Gould, Geoff Dancer, Penelope Hill, Bernard Shrubsole, Lothar Markiewicz and Rosemary Godfrey, born between 1913 and 1937. They had spent most of their working lives in the United Kingdom, paying National Insurance contributions in full, before emigrating or returning to South Africa, Australia or Canada.

The case concerned their complaint about the United Kingdom authorities’ refusal to uprate their pensions in line with inflation.

In 2002, Ms Carson, who lived in South Africa, brought judicial review proceedings to challenge the failure to index-link her pension. She claimed that she had been the victim of discrimination as British pensioners were treated differently depending on their country of residence.

In particular, despite having spent the same amount of time working in the United Kingdom, having made the same contributions towards the National Insurance fund and having the same need for a reasonable standard of living in her old age as British pensioners who were living in the United Kingdom or in other countries where uprating was available through reciprocal agreements, her basic state pension was frozen at the rate payable on the date she left the UK.

Her application for judicial review was dismissed in the Queen’s Bench Division (The Times May 24, 2002), the Court of Appeal (The Times June 28, 2003) and the House of Lords (The Times May 27, 2005; [2006] 1 AC 173).

The domestic courts held that Ms Carson and those in her position had chosen to live in societies, or more pointedly economies, outside the United Kingdom; to accept her arguments would be to lead to judicial interference in the political decision as to the redeployment of public funds.

Ms Carson received a basic state pension of £67.50 a week. It has been frozen at that rate since 2000. Had that basic pension been uprated in line with inflation, it would now be worth £82.05 a week. Ms Carson, now retired, was almost entirely dependent on her British pension to support her.

In its judgment, the European Court of Human Rights held:

I Article 14 in conjunction with article 1 of Protocol No 1 The Court had established in its case-law that only differences in treatment based on an identifiable characteristic, or status, were capable of amounting to discrimination within the meaning of article 14.

Such a difference of treatment was discriminatory if it had no objective and reasonable justification; in other words, if it did not pursue a legitimate aim or if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The contracting state enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justified a different treatment: see Burden v United Kingdom (Application No 13378/05) The Times May 7, 2008; [2008] ECHR paragraph 60).

The scope of that margin varied according to the circumstances, the subject-matter and the background. A wide margin was usually allowed to the state when it came to general measures of economic or social strategy.

Because of their direct knowledge of their society and its needs, the national authorities were in principle better placed than the international judge to appreciate what was in the public interest on social or economic grounds, and the Court would generally respect the legislature’s policy choice unless it was “manifestly without reasonable foundation”: see Stec and Others v United Kingdom (Application Nos 65731/01 and 65900/01) (The Times April 12, 2006; [2006] ECHR paragraph 52).

First, as to whether the applicants were in an analogous situation to British pensioners who had chosen to remain in the United Kingdom, the Court noted that the contracting state’s social security system was intended to provide a minimum standard of living for those resident within its territory.

In so far as concerned the operation of pension or social security systems, individuals ordinarily resident within the contracting state were not therefore in a relevantly analogous situation to those residing outside the territory.

Furthermore, the Court was hesitant to find an analogy between applicants who lived in a frozen-pension country and British pensioners resident in countries outside the United Kingdom where uprating was available through a reciprocal agreement.

National Insurance contributions were only one part of the United Kingdom’s complex system of taxation and the National Insurance fund was just one of a number of sources of revenue used to pay for the United Kingdom’s social security system and National Health Service.

The applicants’ payment of National Insurance contributions during their working lives in the United Kingdom was not therefore any more significant than the fact that they might have paid income tax or other taxes while domiciled there.

Nor was it easy to compare the respective positions of residents of states in close geographical proximity with similar economic conditions, such as the United States of America and Canada, South Africa and Mauritius, or Jamaica and Trinidad and Tobago, due to differences in social security provision, taxation, rates of inflation, interest and currency exchange.

As emphasised by the British domestic courts, the pattern of reciprocal agreements was the result of history and perceptions in each country as to perceived costs and benefits of such an arrangement.

They represented whatever the contracting state had from time to time been able to negotiate without placing itself at an undue economic disadvantage and to apply to provide reciprocity of social security cover across the board, not just in relation to pension uprating.

In the Court’s view, the state did not therefore exceed its very broad discretion to decide on matters of macro-economic policy by entering into such reciprocal arrangements with certain countries but not others.

At any rate, the Court concluded that the difference in treatment had been objectively and reasonably justified. While there was some force in the applicants’ argument, echoed by Age Concern, in a third-party intervention, that an elderly person’s decision to move abroad might be driven by a number of factors, including the desire to be close to family members, place of residence was none the less a matter of choice.

The Court therefore agreed with the Government and the national courts that, in that context, the same high level of protection against differences of treatment was not needed as in differences based on gender or racial or ethnic origin.

Moreover, the state had taken steps, in a series of leaflets which had referred to the Social Security Benefits Uprating Regulations (SI 2001 No 910) to inform United Kingdom residents moving abroad about the absence of index-linking for pensions in certain countries.

The Court therefore held, with Judge Garlicki dissenting, that there had been no violation of article 14 taken in conjunction with article 1 of Protocol No 1.

II Article 14 in conjunction with article 8 The Court held unanimously that it was not necessary to consider separately the applicants’ complaint under article 14 in conjunction with article 8.

Parents win damages for baby taken into care after medical misdiagnosis

Posted in European Court of Human Rights (case), Times Law Report by mrkooenglish on October 23, 2008

From The Times
October 13, 2008
Parents win damages for baby taken into care after medical misdiagnosis
European Court of Human Rights

Published October 13, 2008

R. K. and A. K. v United Kingdom (Application No 38000/05)

Before L. Garlicki, President,and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, D. Thór Björgvinsson, P. Hirvelä and L. Bianku Section Registrar L.

Early Judgment September 30, 2008

Although the removal of a child from parental care did not amount to a breach of article 8 of the European Convention on Human Rights, guaranteeing the right to respect for private and family life, there was a breach of article 13, guaranteeing an effective remedy.

The European Court of Human Rights so held when awarding the applicants €10,000 having found that there existed no means available to them of claiming that a local authority’s handling of the procedures was inappropriate, permitting them to claim compensation for damage caused.

The applicants, RK and his wife, AK, British nationals, were born in 1972 and 1976 respectively. They lived in Oldham. They have a daughter, M, born in July 1998.

In September 1998, M was taken to hospital with a fractured femur. Doctors concluded that the injury had not been accidental and she was placed in the care of her aunt. Following another injury, M was diagnosed with brittle bone disease.

The case concerned the applicants’ complaint that their daughter was placed temporarily in care due to a medical misdiagnosis.

In its judgment, the European Court of Human Rights held:

I Alleged violation of article 8

The applicants complained that their right to respect for family life had been violated by their separation from their child, that their right to moral and physical integrity under the private life aspect had been violated, that their right to reputation had been violated, affecting their right to establish and develop relationships with other human beings and that they had been deprived of the right to have inherent procedural safeguards in place and observed to ensure the protection of the above rights.

The Court reiterated that mistaken judgments or assessments by professionals did not per se render childcare measures incompatible with the requirements of article 8. The authorities, medical and social, had duties to protect children and could not be held liable every time genuine and reasonably held concerns about the safety of children vis-à-vis members of their families were proved, retrospectively, to have been misguided.

In the present case, it was incontrovertible that M, a baby of only a few months, suffered a serious and unexplained fracture. It was not disputed that osteogenesis imperfecta, commonly known as brittle bone disease, was a rare condition and also difficult to diagnose in small infants.

The Court did not consider that the social or medical authorities could be faulted for not reaching an immediate diagnosis of osteogenesis imperfecta, or, in the absence of such a diagnosis, acting on the basis that the injury could have been caused by the parents.

No doubt it would have been better if the triage nurse had taken more accurate notes as to the family’s account of what had happened and trouble had been taken to obtain interpretation in medical staff’s conversations with AK who did not understand English.

However, it was not apparent that that would have dissipated concerns at that early stage since there would still not have been any clear indication of how the fracture had occurred. Furthermore, even when official interpretation was available, in court, the testimony of AK was not found to be convincing.

The applicants’ complaints focused on the manner in which the professionals, medical and legal, were prepared to suspect the worst on the information available to them and failed immediately to perceive their innocence or give them the benefit of any doubt.

None the less, while an interim care order was issued with a view to protecting M, steps were also taken to place the baby within her extended family and in close proximity to the applicants’ own home so that they could easily and frequently visit.

Crucially, as soon as a further fracture occurred outwith the applicants’ care, further tests were quickly pursued and within weeks M was returned home.

The Court further noted that M was removed from the applicants’ care for a period of some seven months. It was not impressed by the applicants’ complaint that the care order was not removed for some further two months. That was largely a formality, the further lapse of time not imposing any identifiable concrete prejudice.

As to the time which elapsed before the correct diagnosis was made, the Government referred to the medical opinions of two doctors obtained at the time of diagnosis of osteogenesis imperfecta which considered that there was no fault in not reaching that conclusion at the time of the first injury.

The applicants emphasised that one of those doctors was later totally discredited. However, the Court was not called upon to adjudicate, retrospectively, as to the best medical practice or the most reliable expert opinion.

It was satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measures being proportionate in the circumstances to the aim of protecting M and which gave due account and procedural protection to the applicants’ interests, and without any lack of the appropriate expedition.

The Court accordingly held, unanimously, that there had been no violation of article 8 of the Convention.

The applicants also claimed that the events complained of invaded their physical and moral integrity and damaged their reputation in violation of article 8. Having regard to its conclusions as to the lawfulness and necessity of the measures, the Court considered that no separate issue arose.

II Alleged violation of article 13

The applicants complained that they had no effective remedy for their complaints, invoking article 13 which guaranteed an effective remedy before a national authority.

The effect of article 13 was to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although contracting states were afforded some discretion as to the manner in which they conformed to their obligations under this provision.

However, such a remedy was only required in respect of grievances which could be regarded as arguable in terms of the Convention: see Halford v United Kingdom (Application No 20605/92) (The Times July 3, 1997; Reports of Judgments and Decisions 1997-III, p1020, paragraph 64; ((1997) 24 EHRR 523) and Camenzind v Switzerland (Application No 21353/93) (Reports 1997-VIII, pp2896-97, paragraph 53; (1997) 28 EHRR 458).

It was common ground in this case that the applicants’ complaints about the interference with their family life through the care measures were arguable.

The Court therefore considered that the applicants should have had available to them a means of claiming that the local authority’s handling of the procedures was responsible for any damage which they suffered and obtaining compensation for that damage: see T. P. and K. M. v United Kingdom (Application No 28945/95) (The Times May 31, 2001; ECHR 2001-V paragraphs 108-109; (2001) 34 EHRR 42).

Such redress was not available at the relevant time. Consequently, the Court held, unanimously, that there has been a violation of article 13 of the Convention in that regard.

Application of article 41

The Court awarded the applicants €10,000 in respect of nonpecuniary damage and €18,000, plus any tax that might be chargeable to the applicants, in respect of costs and expenses.

Cumulative approach in assessing risk of return

Posted in European Court of Human Rights (case), Times Law Report by mrkooenglish on August 1, 2008

From The TimesAugust 28, 2008

Cumulative approach in assessing risk of return

European Court of Human Rights

Published July 28, 2008

NA v United Kingdom (Application No. 25904/07)

Before L. Garlicki, President and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, J. Šikuta, P. Hirvelä and L. Bianku

Section Registrar L. Early

Judgment July 17, 2008

The level of risk of ill-treatment in returning failed asylum-seekers to Sri Lanka was indicated by the fact that since 2007 the European Court of Human Rights has granted interim measures preventing the return of 342 Tamil applicants from the United Kingdom.

That Court held unanimously that an accumulation of relevant factors indicated that if applicant NA were expelled to Sri Lanka he would be exposed to a real risk of ill-treatment, in violation of article 3 of the European Convention on Human Rights.

NA, an ethnic Tamil, was born in 1975 in Sri Lanka and lived in London. He entered the United Kingdom clandestinely on August 17, 1999, and claimed asylum the next day on the ground that he feared ill-treatment by the Sri Lankan Army and the Liberation Tigers of Tamil Eelam, the so-called “Tamil Tigers”.

He explained that he had been arrested and detained by the Army on six occasions between 1990 and 1997 on suspicion of involvement with the Tigers. On each occasion he was released without charge. During one, or possibly more periods of detention he was illtreated and his legs had scars from being beaten with batons.

During the 1997 detention the applicant had been photographed and his fingerprints had been taken. His father had signed certain papers in order to secure his release.

He feared the Tigers because his father had done some work for the Army. They had also tried to recruit him on two occasions in 1997 and 1998.

His claim was refused by the Secretary of State for the Home Department on October 30, 2002. His appeal to an adjudicator was dismissed on July 27, 2003. He was issued with removal directions for April 1, 2006. On April 3, 2006, the Home Secretary refused to consider his further representations as amounting to a new asylum application.

After NA’s successive applications for judicial review of the decision to return him to Sri Lanka failed, new removal directions were issued for June 25, 2007. On that date, following the applicant’s request, the President of the competent Chamber of the European Court of Human Rights decided to apply rule 39 of the Rules of Court (interim measures) and indicated to the UKI Government that the applicant should not be expelled until further notice.

In the course of 2007, the Court received an increasing number of requests for interim measures from Tamils who were being returned to Sri Lanka from the United Kingdom and other contracting states. Interim measures had since been granted in respect of 342 Tamil applicants in the United Kingdom.

Relying on articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention, the applicant alleged that if returned to Sri Lanka, he was at real risk of ill-treatment.

In its judgment the Court held:

I Alleged violation of article 3

The Court agreed with the Government that the complaint under article 2 could be dealt with in the context of its examination of the related complaint under Article 3.

The Court referred to its case law establishing the general principles applicable to expulsion cases. It then set out its approach to the objective information which had been placed before it. On that basis, it assessed the risk to Tamils returning to Sri Lanka and the individual circumstances of the applicant’s case.

(a) Risk to Tamils returning to Sri Lanka

The Court observed as a preliminary matter that the Government proposed to remove the applicant to Colombo. In the light of that, it was not necessary to examine the risk to Tamils in areas controlled by the Tamil Tigers or any other part of the country outside Colombo.

The Court found that the United Kingdom authorities had given serious and anxious consideration to the risk to Tamils returning to Sri Lanka. They had examined all the relevant objective evidence and, just as importantly, considered the appropriate weight to be given to it.

The Court found that the information before it pointed to the systematic torture and ill-treatment by the Sri Lankan authorities of Tamils who would be of interest to them in their efforts to combat the Tamil Tigers.

In respect of returns to Sri Lanka through Colombo, the Court also found that there was a greater risk of detention and interrogation at the airport than in Colombo city.

As to the procedures followed at Colombo airport, the Court considered that at the very least the Sri Lankan authorities had the technological means and procedures in place to identify at the airport failed asylum seekers and those who were wanted by the authorities.

(b) Risk to the applicant

As to the alleged risk to the applicant from the Tamil Tigers, the Court accepted the domestic authorities’ assessment that he would not be at real risk of ill-treatment contrary to article 3 by the Tigers if returned to Colombo.

In assessing the applicant’s position in relation to the Sri Lankan authorities, the Court examined the strength of the applicant’s claim as a result of an accumulation of the risk factors identified by the domestic authorities.

However, compared to the last factual assessment made by the national authorities, it did so in the light of more recent developments and in particular having due regard to the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security.

In addition it took a cumulative approach to all possible risk factors identified by the applicant as applicable to his case.

Thus, one such risk factor was a previous criminal record and/or arrest warrant. Also, the applicant’s father had signed a document to secure his son’s release. Although the precise nature of this document was not known, the logical inference was that it would have been retained by the Sri Lankan authorities at the time of the applicant’s release.

As to the applicant’s scars, the Court considered that where there was a sufficient risk that an applicant would be detained, interrogated and searched, the presence of scarring, with all the significance that the Sri Lankan authorities were then likely to attach to it, had to be taken as greatly increasing the cumulative risk of ill-treatment to that applicant.

The Court recognised that it had been over ten years since the applicant had been last detained by the Sri Lankan Army. However, the passage of time could not be conclusive in assessing the risk that he faced without a corresponding assessment of the current general policies of the Sri Lankan authorities.

Their interest in particular categories of returnees was likely to change over time in response to domestic developments and might increase as well as decrease.

In so far as they had been relied on, the Court also examined additional relevant factors: the age, gender and origin of a returnee, a previous record as a suspected or actual Tiger member, return from London, having made an asylum claim abroad and having relatives in the Tigers.

The Court considered that the cumulative effect of the above factors was to increase further the risk to the applicant, which was already present due to the probable existence of a record of his last arrest and detention.

In conclusion, the Court took note of the current climate of general violence in Sri Lanka and considered cumulatively the factors present in the applicant’s case. It held that there were substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities in their efforts to combat the Tigers.

In those circumstances, the Court found, unanimously, that at the present time there would be a violation of article 3 if the applicant were to be returned.

II Application of article 41

The Court awarded the applicant €4,451 for costs and expenses, less €850 already received in legal aid from the Council of Europe.

Full text: http://www.echr.coe.int

No humanitarian reason prevents removal

From The TimesJune 6, 2008

No humanitarian reason prevents removal
European Court of Human Rights
Published June 6, 2008
N v United Kingdom (Application No 26565/05)
Before J-P. Costa, President and Judges Sir Nicolas Bratza, P. Lorenzen, F. Tulkens, J. Casadevall, G. Bonello, I. Cabral Barreto, B. M. Zupancic, R. Maruste S. Botoucharova, S. Pavlovschi, J. Borrego Borrego, K. Hajiyev, L. Mijovic, D. Spielmann, R. Jaeger and M. Villiger Deputy Registrar M. O’Boyle
Judgment May 27, 2008

The removal of an alien suffering from a serious illness to a country where the facilities for treating that illness were inferior to those available in a state party to the European Convention on Human Rights might raise an issue under the Convention but only in a very exceptional case where humanitarian grounds against removal were compelling.

The Grand Chamber of the European Court of Human Rights held, by 14 votes to 3, that there would be no violation of article 3, prohibiting inhuman or degrading treatment, if the applicant, Ms N, were to be sent back to Uganda from the United Kingdom. The Grand Chamber also held, by 14 votes to 3, that no separate issue arose under article 8, guaranteeing the right to respect for private and family life.

Ms N was a Ugandan national, born in 1974 and lived in London. She had Aids. The case concerned her allegation that her return to Uganda would cause her suffering and lead to her early death because of her illness. She came to the United Kingdom on March 28, 1998, under an assumed name. She was seriously ill and was admitted to hospital. On March 31, 1998, solicitors lodged an asylum application on her behalf, claiming that she had been illtreated and raped by the National Resistance Movement in Uganda and was in fear of her life and safety if she were returned.

The Secretary of State for the Home Department refused her asylum claim on March 28, 2001, finding that her claims were not credible, that there was no evidence that the Ugandan authorities were interested in her, that treatment of Aids in Uganda was comparable to any other African country, and that all the major antiviral drugs were available in Uganda at highly subsidised prices. The applicant appealed.

On July 10, 2002, her appeal was dismissed concerning the asylum refusal, but allowed in relation to article 3. The Home Secretary appealed against the article 3 finding.

The Immigration Appeal Tribunal allowed the appeal on November 29, 2002. The applicant appealed unsuccessfully to the Court of Appeal (The Times October 23, 2003; [2004] 1 WLR 1182) and the House of Lords ( The Times May 9, 2005; [2005] 2 AC 296).

The application was lodged with the European Court of Human Rights on July 22, 2005.

I Alleged violation of article 3

The Court summarised its case-law concerning expulsion cases where the applicant claimed to be at risk of suffering a violation of article 3 on the ground of ill-health, noting that it had not found such a violation since D v United Kingdom (Application No 30240/96) ( The Times May 12, 1997; (1997) 24 EHRR 423)) where very exceptional circumstances and compelling humanitarian considerations were at stake.

The Court recalled that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of one of the states which had ratified the European Convention on Human Rights in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling state. The fact that the applicant’s circumstances, including her or his life expectancy, would be significantly reduced if s/he were to be removed from the Convention state was not sufficient in itself to give rise to breach of article 3.

The decision to remove an alien who was suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness were inferior to those available in the contracting state might raise an issue under article 3, but only in a very exceptional case, where the humanitarian grounds against the removal were compelling, such as in D.

Although many of the rights it contained had implications of a social or economic nature, the Convention was essentially directed at the protection of civil and political rights. Furthermore, inherent in the whole of the Convention was a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

Advances in medical science, together with social and economic differences between countries, meant that the level of treatment available in the contracting state and the country of origin might vary considerably. Article 3 did not place an obligation on the contracting state to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A contrary finding would place too great a burden on the state.

Finally, the Court observed that, although the applicant’s case concerned the expulsion of a person with an HIV and Aids-related condition, the same principles had to apply to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which might cause suffering, pain and reduced life expectancy and require specialised medical treatment which might not be so readily available in the applicant’s country of origin or which might be available only at substantial cost.

Although the applicant applied for, and was refused asylum in the United Kingdom, she did not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated ill-treatment. Her claim under article 3 was based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.

The evidence before the national courts indicated that if the applicant were to be deprived of her current medication, her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years. According to information collated by the World Health Organisation, antiretroviral medication was available in Uganda, although, through lack of resources, it was received by only half of those in need.

The applicant claimed that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she came. It appeared that she had family members in Uganda, although she claimed that they would not be willing or able to care for her if she were seriously ill.

The United Kingdom authorities had provided the applicant with medical and social assistance at public expense during the nine-year period it had taken for her asylum application and claims under articles 3 and 8 to be determined by the domestic courts and the European Court. However, that did not in itself entail a duty on the part of the United Kingdom to continue to provide for her.

The Court accepted that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. Currently, however, the applicant was not critically ill.

The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, involved a certain degree of speculation, particularly in view of the constantly evolving situation as to the treatment of HIV and Aids worldwide. Concluding that the applicant’s case did not disclose very exceptional circumstances, the Court found, with Judges Tulkens, Bonello and Spielmann dissenting, that her removal to Uganda would not violate article 3.

II Alleged violation of article 8

The Court held, with the same three judges dissenting, that it was not necessary to examine the complaint under article 8. Full text at http://www.echr.coe.int

Council’s short-cut violated right to respect for tenant’s home

From The TimesMay 23, 2008

Council’s short-cut violated right to respect for tenant’s home
European Court of Human Rights
McCann v United Kingdom (Application No 19009/04)
Before L. Garlicki, President, and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, D. Thór Björgvinsson, J. Šikuta and P.Hirvelä
Section Registrar L. Early
Judgment May 13, 2008

A local authority which bypassed the statutory scheme for evicting a tenant, had violated his right to respect for the home, as guaranteed by article 8 of the European Convention on Human Rights, when the summary procedure used had not provided appropriate procedural safeguards.

The European Court of Human Rights so held, unanimously, finding that a joint tenant had been dispossessed of his home without any possibility of having the proportionality of that measure determined by an independent tribunal.

The applicant, Gerrard McCann, was a British national who was born in 1968 and lived in Birmingham. Mr McCann and his ex-wife were secure tenants, under the Housing Act 1985, of a three-bedroom house belonging to Birmingham City Council.

The marriage broke down and, in April 2001, Mrs McCann asked to be re-housed on the ground of domestic violence. In August 2001 she and the children moved into another council house allocated to them in accordance with the local authority’s domestic violence policy. She informed the local authority that she was giving up the tenancy and returned the keys of the house. As far as the local authority was concerned, the three-bedroom house was from then on uninhabited.

In November 2001, however, the applicant moved back into the vacant house and did a considerable amount of work to renovate it.

His relationship with Mrs McCann improved and she supported his application for an exchange of accommodation with another local authority tenant, as the three-bedroom house was too big for him but he still required a home in the area so that his children could visit.

In January 2002, a housing officer, having realised that the property was not in fact empty, and having taken legal advice, visited Mrs McCann and asked her to close the tenancy by signing a notice to quit. The effect of that notice under domestic law was to bring an end to the tenancy. Mrs McCann signed the notice but, a week later, requested for it to be withdrawn.

In June 2002, the local authority decided, among other things, that in accordance with the domestic violence policy, the applicant would not be granted the right to accede to the former tenancy of the house and that, in any event, he had no dependants living with him and would not therefore qualify for such a dwelling.

In April 2003, the local authority’s claim for possession against the applicant was dismissed. The county court judge found that Mrs McCann had not been advised and had not understood that the notice to quit would effectively remove her ex-husband’s right to live in the house or exchange it for another local authority property.

On appeal, however, it was found that the local authority had acted lawfully and that the notice to quit was effective despite it having been signed without an understanding of its consequences. That decision was upheld in judicial review proceedings brought by the applicant and again on appeal.

In its judgment, the Court held:

Relying, in particular, on article 8 of the Convention, protecting the right to respect for private and family life, the applicant complained about the eviction proceedings brought against him by Birmingham City Council.

He alleged, in particular, that in asking his ex-wife to sign a notice to quit, the local authority gave no consideration to his relationship with his children who stayed with him three nights a week.

Alleged violation of article 8

The Court found, as also accepted by the British courts and the parties, that the council house formerly occupied by the applicant with his ex-wife as a joint tenant and where he had lived on his own from November 2001, had continued to be his home, under article 8.1.

It was also agreed that the notice to quit, together with the possession proceedings, had amounted to an interference with the applicant’s right to respect for his home.

The Court considered that that interference had been in accordance with the law and had pursued the legitimate aim of protecting the local authority’s right to regain possession of property from an individual who had no contractual or other right to be there. It also aimed to ensure that the statutory scheme for housing provision was properly applied.

The Court noted that any person at risk of losing his home, which was a most extreme form of interference with the right to respect for one’s home, should be able to have the proportionality of the measure determined by an independent tribunal, even if, under domestic law, the right of occupation had come to an end.

The legislature in the United Kingdom had set up a complex system for the allocation of public housing which included, under section 84 of the Housing Act 1985, provisions to protect secure tenants with public authority landlords.

Had the local authority sought to evict the applicant in accordance with that statutory scheme, it would have had to apply for a possession order and, in those proceedings, the applicant could have asked the court to examine his personal circumstances, including the need to provide accommodation for his children and whether his wife had really left the family home because of domestic violence.

However, the local authority had chosen to bypass that statutory scheme by asking Mrs McCann to sign a common law notice to quit, which had resulted in the termination of the applicant’s right, with immediate effect, to remain in the house. The authority, in the course of that procedure, had not given any consideration to the applicant’s right to respect for his home.

Nor had the ensuing possession proceedings or judicial review proceedings provided any opportunity for an independent tribunal to examine whether the applicant’s loss of his home had been proportionate to the legitimate aims pursued.

The Court therefore concluded unanimously that, under the summary procedure available to a landlord where one joint tenant served notice to quit, the applicant had been dispossessed of his home without any possibility to have the proportionality of that measure determined by an independent tribunal, in violation of article 8.

Application of article 41

The Court awarded the applicant €2,000 in respect of non-pecuniary damage and €75,000, less €850 in legal aid paid by the Council of Europe, for costs and expenses.

No discrimination for tax

From The TimesMay 7, 2008

No discrimination for tax
Burden and Another v United Kingdom (Application No 13378/05) in the European Court of Human Rights
European Court of Human Rights

Published May 7, 2008

Burden and Another v United Kingdom (Application No 13378/05)

Before J.-P. Costa, President and Judges Sir Nicolas Bratza, B. M. Zupancic, F. Tulkens, R. Türmen, C. Bîrsan, N. Vajic, M. Tsatsa-Nikolovska, A. Baka, M. Ugrekhelidze, A. Kovler, E. Steiner, J. Borrego Borrego, E. Myjer, D. Thór Björgvinsson, I. Ziemele and I. Berro-Lefèvre Jurisconsult V. Berger

Judgment April 29, 2008

Sisters who shared a house could not be compared to a couple united by law so as to invoke provisions prohibiting discrimination.

The Grand Chamber of the European Court of Human Rights so held, by 15 votes to 2, finding that there had been no violation of article 14, prohibiting discrimination, of the European Convention on Human Rights taken in conjunction with article 1 of Protocol No 1, protecting property rights.

The case concerned two British nationals, Joyce and Sybil Burden, born in 1918 and 1925 respectively, unmarried sisters who lived in Marlborough.

The applicants had lived together all their lives; for the last 30 years in a house built on land they inherited from their parents. Each had made a will leaving all her property to the other. The sisters, both in their eighties, were concerned that, when one of them died, the other would be forced to sell the house to pay inheritance tax.

Property passing from the deceased to a spouse or civil partner, a category introduced under the Civil Partnership Act 2004 for same-sex couples, was exempt from the charge.

The Court held in a chamber judgment (The Times January 19, 2007), by four votes to three, that there had been no violation of article 14 taken in conjunction with article 1 of Protocol No 1. On March 8, 2007, the applicants requested that the case be referred to the Grand Chamber.

The Grand Chamber concluded, by 15 votes to 2, with Judges Zupancic and Borrego Borrego dissenting, that the applicants, as cohabiting sisters, could not be compared for the purposes of article 14 to a married or Civil Partnership Act couple.

It followed that there had been no discrimination and, therefore, no violation of article 14 taken in conjunction with article 1 of Protocol No 1.

No breach of rights in expulsion to Uganda

European Court of Human Rights

Published April 23, 2008

Nnyanzi v United Kingdom (Application No 21878/06)

Before L. Garlicki, President and Judges Sir Nicolas Bratza, S. Pavlovschi, L. Mijovic, D. Thór Björgvinsson, J. Šikuta and P. Hirvelä Section Registrar L.

Early Judgment April 8, 2008

There was no reason to belive that an applicant who unsuccessfully sought asylum, on the basis of her father’s political activities in Uganda, would be ill treated on her expulsion to that state.

The European Court of Human Rights held, unanimously, that the rejection of the applicant’s asylum application and the ensuing decision to remove her to Uganda would not give rise to a violation of article 3, prohibiting inhuman or degrading treatment, article 5, protecting the right to liberty, or article 8, guaranteeing the right to private and family life, of the European Convention on Human Rights.

The applicant, Evarista Evelyn Nnyanzi, a Ugandan national, was born in 1965 and lived in London. She was the daughter of Evaristo Nnyanzi, a former Ugandan government minister from 1985-1986 and Treasurer-General of the Democratic Party. He was charged with treason in 1998. Her mother and younger siblings lived in Kenya.

In its judgment, the Court held:

I Alleged violation of article 3

The Court noted that the most severe form of persecution that the applicant experienced in Uganda before coming to the United Kingdom in 1998 was an arrest and one-day detention and questioning in 1987.

After examining the individual circumstances of the applicant in the light of the current general situation in Uganda, the Court found, unanimously, that no substantial grounds had been established for believing that she would be exposed to a real risk of torture or inhuman or degrading treatment within the meaning of article 3 if expelled.

Accordingly, her expulsion to Uganda would not be in violation of article 3.

II Alleged violation of article 5

In the light of its conclusions on the applicant’s article 3 complaint, the Court held, unanimously, that no separate issue arose under article 5.

III Alleged violation of article 8

Her proposed removal to Uganda was in accordance with the law and motivated by a legitimate aim, namely the maintenance and enforcement of immigration control.

As to the necessity of the interference, the Court found that any private life that the applicant had established during her stay in the United Kingdom when balanced against the legitimate public interest in effective immigration control would not render her removal a disproportionate interference.

Accordingly, the Court was of the unanimous view that the applicant’s removal to Uganda would not give rise to a violation of article 8.